be found, until satisfaction is made for the injury.1 This power of reprisal seems indeed to be a dictate almost of nature itself, and is nearly related to, and plainly derived from that of making war. It is only an incomplete state of hostilities, and often ultimately leads to a formal denunciation of war, if the injury is unredressed, or extensive in its operations.2 § 1172. The power to declare war is exclusive in congress; and (as will be hereafter seen,) the states are prohibited from engaging in it, unless in cases of actual invasion or imminent danger thereof. It includes the exercise of all the ordinary rights of belligerents; and congress may therefore pass suitable laws to enforce them. They may authorize the seizure and condemnation of the property of the enemy within, or without the territory of the United States; and the confiscation of debts due to the enemy. But, until laws have been passed upon these subjects, no private citizens can enforce any such rights; and the judiciary is incapable of giving them any legitimate operation.3 66 § 1173. The next power of congress is "to raise and support armies; but no appropriation of money to that use shall be for a longer term than two years." § 1174. The power to raise armies is an indispensable incident to the power to declare war; and the latter would be literally brutum fulmen without the former, a means of mischief without a power of defence. Under the confederation congress possessed no power whatsoever to raise armies; but only "to 11 Black. Comm. 258, 259. 2 1 Black. Comm. 258, 259; Bynkershoek on War, ch. 24, p. 182, by Duponceau; Valin Traité des Prises, p. 223, 321; 1 Tuck. Black. Comm. App. 271; 4 Elliot's Deb. 251. 3 Brown v. United States, 8 Cranch's R. 1. 44 Elliot's Deb. 220, 221. agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state;" which requisitions were to be binding; and thereupon the legislature of each state were to appoint the regimental officers, raise the men, and clothe, arm, and equip them in a soldier-like manner, at the expense of the United States.1 The experience of the whole country, during the revolutionary war, established, to the satisfaction, of every statesman, the utter inadequacy and impropriety of this system of requisition. It was equally at war with economy, efficiency, and safety. It gave birth to a competition between the states, which created a kind of auction of men. In order to furnish the quotas required of them, they outbid each other, till bounties grew to an enormous and insupportable size. On this account many persons procrastinated their enlistment, or enlisted only for short periods. Hence, there were but slow and scanty levies of men in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; and continual fluctuations in the troops, ruinous to their discipline, and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence also arose those oppressive expedients for raising men, which were occasionally practised, and which nothing, but the enthusiasm of liberty, could have induced the people to endure. The burthen was also very 1 Art. 9; Art. 7. 2 1 American Museum, 270, 273, 283; 5 Marshall's Life of Washington, App. note 1. 3 The Federalist, No. 22, 23.-The difficulties connected with this subject will appear still more striking in a practical view from the letters of General Washington, and other public documents at the period. See 5 Marshall's Life of Washington, ch. 3, p. 125, 126; ch. 5, p. 212 to 220; ch. 6, p. 238 to 248., See 6 Journals of Congress in 1780 passim. Circular Letter of Congress, in May, 1779; 5 Jour. of Cong. 224 to 231. VOL. III. 9 unequally distributed. The states near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance were exceedingly remiss in their exertions. In short, the army was frequently composed of three bodies of men; first, raw recruits; secondly, persons, who were just about completing their term of service; and thirdly, of persons, who had served out half their term, and were quietly waiting for its determination. Under such circumstances, the wonder is not, that its military operations were tardy, irregular, and often unsuccessful; but, that it was ever able to make head-way at all against an enemy, possessing a fine establishment, well appointed, well armed, well clothed, and well paid.' The appointment, too, by the states, of all regimental officers, had a tendency to destroy all harmony and subordination, so necessary to the success of military life. § 1175. There is great wisdom and propriety in relieving the government from the ponderous and unwieldy machinery of the requisitions and appointments under the confederation. The present system of the Union is general and direct, and capable of a uniform organization and action. It is essential to the common defence, that the national government should possess the power to raise armies; build and equip fleets; prescribe rules for the government of both; direct their operations; and provide for their support.2 § 1176. The clause, as originally reported, was "to raise armies ;" and subsequently it was, upon the report of a committee, amended, so as to stand in its present 1 The Federalist, No. 22, 23. 2 The Federalist, No. 23; 2 Elliot's Debates, 92, 93. form; and as amended it seems to have encountered no opposition in the convention.' It was, however, afterwards assailed in the state conventions, and before the people, with incredible zeal and pertinacity, as dangerous to liberty, and subversive of the state governments. Objections were made against the general and indefinite power to raise armies, not limiting the number of troops; and to the maintenance of them in peace, as well as in war. § 1177. It was said, that congress, having an unlimited power to raise and support armies, might, if in their opinion the general welfare required it, keep large armies constantly on foot, and thus exhaust the resources of the United States. There is no control on congress, as to numbers, stations, or government of them. They may billet them on the people at pleasure. Such an unlimited authority is most dangerous, and in its principles despotic; for being unbounded, it must lead to despotism. We shall, therefore, live under a government of military force.2 In respect to times of peace, it was suggested, that there is no necessity for having a standing army, which had always been held, under such circumstances, to be fatal to the public rights and political freedom.3 § 1178. To these suggestions it was replied with equal force and truth, that to be of any value, the power must be unlimited. It is impossible to foresee, or define the extent and variety of national exigencies, and the correspondent extent and variety of the national means necessary to satisfy them. The power must be co-extensive with all possible combinations of circum 1 Journal of Convention, 221, 327, 328. 2 2 Elliot's Debates, 285, 286, 307, 308, 430. 3 2 Elliot's Debates, 307, 308, 430. stances, and under the direction of the councils entrusted with the common defence. To deny this would be to deny the means, and yet require the end. These must, therefore, be unlimited in every matter essential to its efficacy, that is, in the formation, direction, and support of the national forces. This was not doubted. under the confederation; though the mode adopted to carry it into effect was utterly inadequate and illusory.2 There could be no real danger from the exercise of the power. It was not here, as in England, where the executive possessed the power to raise armies at pleasure; which power, so far as respected standing armies in time of peace, it became necessary to provide by the bill of rights, in 1688, should not be exercised without the consent of parliament. Here the power is exclusively confined to the legislative body, to the representatives of the states, and of the people of the states. And to suppose it will not be safe in their hands, is to suppose, that no powers of government, adapted to national exigencies, can ever be safe in any political body. Besides, the power is limited by the necessity (as will be seen) of biennial appropriations.5 The objection, too, is the more strange, because there are but two constitutions of the thirteen states, which attempt in any manner to limit the power; and these are rather cautions for times of peace, than prohibitions. The confederation itself contains no prohibition or limitation of the power. Indeed, in regard to times of war, it seems utterly preposterous to impose any limit 4 1 The Federalist, No. 23; 2 Elliot's Debates, 92, 93, 438. 22 Elliot's Debates, 438. 4 The Federalist, No. 23, 26. 31 Black. Comm. 262, 413. 5 The Federalist, No. 24, 25. 6 The Federalist, No. 24, and note; Id. 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