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modern times has introduced into practice, although it may affect its exercise, can never impair the right itself; and whenever the Legislature chooses to bring it into operation, the judicial department must give it effect.
Until the legislative will, however, is distinctly declared, no power of condemnation can exist in the courts; and, from the structure of our government, proceedings to condemn enemy's property found in the country at the declaration of war, can be sustained only on the principle of their having been commenced in execution of an existing law. An act of Congress simply declaring war, does not, by its own operation, so vest such property in the government as to support judicial proceedings for its seizure and condemnation ; but vests merely a right, of which the assertion depends on the future action of the Legislature.
III. The power of raising armies and equipping fleets seems to be involved in the power of declaring war; and to have left it to be exercised by the states, under the direction of Congress, as was the case under the confederation, would have inverted a primary principle of the new Constitution, and, in practice, transferred the case of the common defence from the Federal head to the individual members of the Union. The various inconveniences which would attend the system of a separate organization of the national force must be obvious. They had been experienced during the war of our Revolution, and had proved that such a system was oppressive to some states, and dangerous to all. Under our present Constitution, sufficient reasons have appeared to induce an apprehension that the state governments
* 8 Cranch, 109.
are naturally prone to rivalship with the government of the Union; and if, in addition to this, their ambition were stimulated by the separate and independent possession of military forces, too strong a temptation and too great a facility would be given them to subvert the constitutional authority of the Union. The liberties of the people would, morcover, be less safe under such an arrangement than under that which leaves the national forces in the hands of the National Government. So far as an army may be likely, in this country, to become an instrument of ambition or power, it had better be at the disposal of that power of which the people are most apt to be
jealous ; for it is a truth which the experience of ages has attested, that the people are commonly most in danger when the means of invading their rights are at the command of those of whom they are the least suspicious.
Standing armies in time of peace have, indeed, been objected to, as dangerous to our free institutions; but there can scarcely be ground for such apprehension, from the nature of the Federal Government; while the impolicy of restraints on its discreition with respect to raising forces by land or sea, is manifest, from the consideration that the efficiency of the power depends on its being indefinite, and upon its extending to the maintaining them in peace as well as in war; for with no show of propriety could the force requisite for defence be limited by those who have no power to limit the strength and power of offence possessed by an enemy: nor, unless our government could set bounds to the ambition, injustice, or exertions of other nations, could restraints be safely imposed upon its discretion, or limits prescribed to it for self-preservation. Besides, a readiness for war, in time of peace, is not only ne
cessary for self-defence, but affords the most certain means of preventing aggression, by exhibiting such resources and preparations for repelling it as may discourage or deter an enemy from attempts, which, from that very circumstance, would probably prove unavailing. A prohibition, therefore, against raising and maintaining armies and fleets in time of peace, would not only exhibit the extraordinary spectacle of a nation incapacitated by its constitution from preparing for defence before it was actually invaded, but would be altogether inconsistent with the public safety, and the exigencies of self-protection, unless by its constitution it could in like manner prohibit the preparations and establishments of every hostile power. The means of security can only be regulated by the means, probabilities, and dangers of attack; and it would be worse than useless to oppose constitutional barriers to the impulse of self-preservation, because it would imbody in the Constitution the temptation, if not the necessity of resorting to usurpations of extraordinary power, every precedent of which would be the excuse for unnecessary and multiplied repetitions of measures far more dangerous to public liberty than a standing army, in a country with a population and under a government like
The jealousy which would abolish our military establishments in time of peace, may be traced to those habits of thinking which the inhabitants of the United States derived from the people from which they sprung, and upon the prevailing sentiments on the subject at the period of our Revolution. As incident to the undefined and unrestricted power of making war, it was the acknowledged prerogative of the British crown to maintain, by its own authority, regular troops in time of peace. The abuse of this
prerogative, among others, led to the public execution of one king, and the expulsion of another; and to guard for the future against the exercise of power so dangerous, the Bill of Rights, framed by the Convention-Parliament, and acceded to by King William, at the revolution of 1688, declared that “ raising or keeping a standing army in time of peace, unless with the consent of Parliament, was against law.” The events which led to our own Revolution quickened the public sensibility on every point connected with the security of popular rights; and the principles which taught our fathers to be jealous of the power of an hereditary monarch, were afterward extended to their own representatives. In the constitutions of Pennsylvania and North Carolina, prohibitions of military establishments in time of peace were introduced; and in those of New Hampshire, Massachusetts, Delaware, and Maryland, a declaration was inserted similar to that of the English Bill of Rights, although that declaration was inapplicable to any
of the state governments ; for the power of raising and keeping on foot standing armies could by no possible construction be deemed, at that time, to reside anywhere else than in the legislatures themselves. It was therefore superfluous, to say the least of it, to declare that a measure should not be adopted without the consent of that body which alone had the power of adopting it.
Those state constitutions which have been most approved are silent on the subject; and the only direct restriction on Congress in regard to the exercise of its military powers, is contained in an amendment to the Federal Constitution, which declares that “no soldier shall, in time of peace, be quartered in any house without the consent of the owner ; nor in time of war but in a manner to be
prescribed by law.” Even in those state constitutions which seem to have meditated a total interdic. tion of military establishments during peace, the expressions used are monitory rather than prohibitory; and the ambiguity of their terms appears to have resulted from a conflict between the desire of excluding such establishments, and the conviction that the measure would be unwise and hazardous. The union of the states under the National Constitution removes every pretext for a military establishment in any of the states which could be dangerous ; while our distance from the powerful nations of Europe affords sufficient security that the Federal Government will never be able to persuade or delude the people into the support of large and expensive peace establishments. The danger, indeed, is the other way; and it is rather to be feared that mistaken notions of economy, if not of jealousy, will always tend to render our military force not merely too weak for the protection, but reduce it too low even for the preservation of our forts and arsenals. The Union itself, however, is our best protection and defence, and our principal security against danger from abroad, internal commotion, or domestic usurpation. It may, moreover, be numbered among the blessings vouchsafed to our country, that the Uuion itself is the great source of our maritime strength; while the palpable necessity of a navy, and its proved efficiency as an arm of national defence, have silenced the jealousy or the scruples which at one period prevented due attention to fostering it in time of peace. It has since fought its way to the patronage of the government, and it always enjoyed the favour of the people.
V. The power of regulating the militia, and commanding its services in cases of insurrection or in