thought indispensable to protect it. But the attempt on our part to provide a navy would provoke these powers, who would not suffer us to become a naval power. Thus, we should be immediately involved in wars with them. The expenses, too, of maintaining a suitable navy would be enormous; and wholly disproportionate to our resources. If a navy should be provided at all, it ought to be limited to the mere protection of our trade.1 It was further urged, that the Southern states would share a large portion of the burthens of maintaining a navy, without any corresponding advantages.2

It

§ 1190. With the nation at large these objections were not deemed of any validity. The necessity of a navy for the protection of commerce and navigation was not only admitted, but made a strong ground for the grant of the power. One of the great objects of the constitution was the encouragement and protection of navigation and trade. Without a navy, it would be utterly impossible to maintain our right to the fisheries, and our trade and navigation on the lakes, and the Mississippi, as well as our foreign commerce. was one of the blessings of the Union, that it would be able to provide an adequate support and protection for all these important objects. Besides; a navy would be absolutely indispensable to protect our whole Atlantic frontier, in case of a war with a foreign maritime power. We should otherwise be liable, not only to the invasion of strong regular forces of the enemy; but to the attacks and incursions of every predatory adventurer. Our maritime towns might all be put under contribution; and even the entrance and departure from our

1 2 Elliot's Deb. 224, 319, 320.

2 2 Elliot's Deb. 319, 320.

own ports be interdicted at the caprice, or the hostility of a foreign power. It would also be our cheapest, as well as our best defence; as it would save us the expense of numerous forts and garrisons upon the seacoast, which, though not effectual for all, would still be required for some purposes. In short, in a maritime warfare without this means of defence, our commerce would be driven from the ocean, our ports would be blockaded, our sea-coast infested with plunderers, and our vital interests put at hazard.1

§ 1191. Although these considerations were decisive with the people at large in favour of the power, from its palpable necessity and importance to all the great interests of the country, it is within the memory of all of us, that the same objections for a long time prevailed with a leading party in the country,2, and nurtured a policy, which was utterly at variance with our duties, as well as our honour. It was not until during the late war with Great Britain, when our little navy, by a gallantry and brilliancy of achievement almost without parallel, had literally fought itself into favour, that the nation at large began to awake from its lethargy on this subject, and to insist upon a policy, which should at once make us respected and formidable abroad, and secure protection and honour at home. It has been proudly said

1 The Federalist, No. 11, 24, 41. See also 1 Tucker's Black. Comm. App. 272.

2 Sec 5 Marshall's Life of Washington, ch. 7, p. 523 to 531.

3 Lest it should be supposed, that these remarks are not well founded, the following passage is extracted from the celebrated Report and Resolutions of the Virginia legislature, of 7th and 11th Jan. 1800, which formed the text-book of many political opinions for a long period. "With respect to the navy, it may be proper to remind you, that whatever may be the proposed object of its establishment, or whatever the prospect of temporary advantages resulting therefrom, it is demonstrated by the experience of all nations, who have adventured far into naval

by a learned commentator on the laws of England, that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty. Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.

§ 1192. The next power of congress is "to make "rules for the government and regulation of the land and "naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. Its propriety, therefore, scarcely could be, and never has been denied, and need not now be insisted on. The clause was not in the original draft of the constitution; but was added without objection by way of amendment. It was without question borrowed from a corresponding clause in the articles of confederation, where it was with more propriety given, because there was a prohibition of all implied powers. In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating

policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. Nor is there any nation, in the judgment of the general assembly, to whose circumstances this remark is more applicable, than to the United States." p. 57, 58. And the senators and representatives were instructed and requested by one of the resolutions "to prevent any augmentation of the navy, and to promote any proposition for reducing it, as circumstances will permit, within the narrowest limits compatible with the protection of the sea-coasts, ports, and harbours of the United States." p. 59.

1 1 Black. Comm. 418.

2 Journal of Convention, p. 221, 262. 3 Art. 9.

fleets and armies.1 But parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for by acts of parliament.2 The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most. summary and severe punishments might be inflicted at the mere will of the executive.

§ 1193. It is a natural result of the sovereignty over the navy of the United States, that it should be exclusive. Whatever crimes, therefore, are committed on board of public ships of war of the United States, whether they are in port or at sea, they are exclusively cognizable and punishable by the government of the United States. The public ships of sovereigns, wherever they may be, are deemed to be extraterritorial, and enjoy the immunities from the local jurisdiction belonging to their sovereign.3

1 1 Black. Comm. 262, 421.

2 1 Black. Comm. 413, 414, 415, 420, 421.

3 See United States v. Bevans, 3 Wheaton's R. 336, 390. The Schr. Exchange, 7 Cranch's R. 116.

CHAPTER XXII.

POWER OVER THE MILITIA.

§ 1194. THE next power of congress is "to provide "for calling forth the militia to execute the laws of the "Union, suppress insurrections, and repel invasions."

§ 1195. This clause seems, after a slight amendment, to have passed the convention without opposition. It cured a defect severely felt under the confederation, which contained no provision on the subject.

§ 1196. The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defence, and preserving the internal peace of the nation. In short, every argument, which is urged, or can be urged against standing armies in time of peace, applies forcibly to the propriety of vesting this power in the national government. There is but one of two alternatives, which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws; either to employ regular troops, or to employ the militia to suppress them. In ordinary cases, indeed, the resistance to the laws may be put down by the posse comitatus, or the assistance of the common magistracy. But cases may occur, in which such a resort would be utterly vain, and even mischievous; since it might encourage the factious to more rash measures, and prevent the application of a force, which would at once destroy the hopes, and crush the efforts of the disaffected. The

VOL. III.

1 Journal of Convention, 221, 283.

11