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and enforce in their favour, or for the benefit of their citizens and subjects.

The power of declaring war, with all its train of consequences, direct and indirect, forms the next branch of powers exclusively

confided to congress.

. The right of using force, or of making war, belongs to nations, so far as it is necessary for their defence and the support of their rights. But the evils of war are certain, and the event doubtful, and therefore both wisdom and humanity require, that every possible precaution should be used before a nation is plunged into it. In monarchies, the king generally possesses this power, and it is as often exercised for his own aggrandizement as for the good of the nation. Republics, though they cannot be wholly exonerated from the imputation of ambition, jealousies, causeless irritations, and other personal passions, enter into war more deliberately and reluctantly.

It is not easy to perceive where this power could, with us, be more prudently placed. But it must be remembered, that we may be involved in a war without a formal declaration of it. In the year 1800, we were engaged in a qualified, but public, war with France;* qualified, because it was only waged on the high seas-public, because the whole nation was involved in it. It was founded on the hostile measures authorized by congress against France, by reason of her unjust aggressions on our commerce-yet there was no declaration of war. In such a war we may also be involved by the conduct of the executive, without the participation of the legislature. The intercourse with foreign nations, the direction of the military and naval power, being confided to the president, his errors or misconduct may draw hostilities upon us. No other restraint appears to exist, than that of withholding the supplies to carry it on, which indeed congress can in no case grant beyond the term of two

* 4 Dallas, 37.

years. But in England, the king is, in this respect, equally dependent on the parliament, and its history shows that this dependence is not always adequate to prevent unpopular

wars.

The several states are, by another clause, prohibited from engaging in war, unless actually invaded, or in such imminent danger as will not admit of delay.

But although congress alone can subject us to the dubious results of formal war, a smaller portion of the government can restore us to peace. Hostilities may be terminated by a truce, which the president alone (it is conceived) may make. The duration of a truce is indefinite. It suspends all hostilities while it continues in force; but it does not revive treaties which were broken by the commencement of the war, or restore rights of any sort, which were suspended by it. It may be general or partial—it may extend to all places and to all the mutual forces of the belligerents, or it may be confined to particular places or particular armaments. When it ceases, it is unnecessary to repeat the declaration of war. But before its conventual termination, unless some fresh cause of complaint should have arisen, it would be inconsistent with good faith to renew hostilities.

Treaties, by which peace is completely restored, may, as already shown, be made by the president and senate alone, without the concurrence, and against the will of the house of representatives.

It has been made a subject of doubt, whether the power to make war and peace, should not be the same, and why a smaller part of the government should be entrusted with the latter, than the former. Sufficient reasons may certainly be assigned for the distinction. Peace is seldom effected without preparatory discussions, often of length and difficulty, the conduct of which, of course, belongs only to the president and War is always an evil; peace is the cure of that evil.

War should always be avoided as long as possible, and although it may happen to be brought on us as before observed, without the previous assent of congress, yet a regular and formal war should never be entered into, without the united approbation of the whole legislature. But although a peace is seldom obnoxious and unacceptable to the public, yet its necessity or propriety may not always be apparent, and a public disclosure of the urgent motives that really exist in favour of it, may be prejudicial. The people have, in such case, a stronger motive for relying on the wisdom and justice of the president and senate, than in the case of ordinary treaties. They are less likely than a larger body to be influenced by partial views or occasional inflammation, and the very circumstance of the smallness of their numbers increases their responsibility to public opinion.

By the fifteenth and sixteenth paragraphs of the same important section, congress is empowered to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, but in respect to the two last mentioned objects, it is not to be understood as an exclusive power. There cannot at least be any doubt, that on the first emergency, each state enjoys a similar power, of which no act of congress can deprive them. For the principle of the Constitution is not to deny to the states the right of self-protection in such cases, but to co-operate with the collective force of the Union in aid of the state.

Uniformity in the organization and discipline of the militia, should extend through the Union. The imbecility of the confederation in this respect, together with the variety of the periods of service for which the militia were engaged, produced considerable inconvenience during the war of the revolution. Hence, congress is further empowered to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United

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States. This power cannot be considered as infringing the rights and privileges of the states, since, however necessary, cannot effectually be vested elsewhere, and since it is accompanied with an express reservation to them, of the appointment of the officers, and of the authority of training the militia, according to the discipline prescribed by congress. This subject will be hereafter resumed..

The last enumerated power is to exercise exclusive legislation in all cases whatever, over such district, not exceeding ten miles square, as may by cession of particular states, and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings,

A provision of this kind, is peculiar to the United States,* and the reasons in favour of it, are cogent.

If the general government held its sessions within the limits, and under the jurisdiction of a state, it would be dependant on that state for protection and safety. If it should happen, that at any time, unkind opinions, in respect to it, existed on the part of the state, or, if the state government were deficient in firmness and power, the general legislature might be subjected to insult and disgrace, in the midst of its most important functions. It would thus be dishonoured in the eyes of foreign powers, and pitied or despised at home. Nor is this an imaginary or improbable event. At the close of the

* In England, the Royal Palace, with an extent of twelve miles round it, has a peculiar jurisdiction in regard to some legal controversies; but any suits brought in the Marshalsea or Palace Courts, (as they are styled,) may be, and now generally are, removed at once to the King's Bench or Common Pleas. For all the purposes of legislation, there is no distinction between the " "verge of the court," and the kingdom at large.

war of the revolution, the congress, then sitting at Philadelphia, was surrounded and insulted by a small, but insolent body of mutineers of the continental army. It applied to the executive authority of Pennsylvania for defence; but under the ill conceived constitution of the state at that time, the executive power was vested in a council, consisting of thirteen members; and they possessed or exhibited so little energy, and such apparent intimidation, that the congress indignantly removed to New Jersey, whose inhabitants welcomed it with promises of defending it. It remained for some time at Princeton,. without being again insulted, till, for the sake of greater convenience, it adjourned to Annapolis. The general dissatisfaction with the proceedings of the executive authority of Pennsylvania, and the degrading spectacle of a fugitive congress, suggested the remedial provisions now under consideration.

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It has been carried into effect, by the cession and acceptance of a tract of land on the river Potowmack, partly from the state of Virginia, and partly from the state of Maryland. The inhabitants generally were satisfied. But some consequences, that perhaps were not fully foreseen, have flowed from it. The inhabitants of the District of Columbia, are no longer in all respects citizens of a state, although they are unquestionably, to a certain extent, citizens of the United States. As such, they are entitled to the benefit of all commercial or political treaties with foreign powers, and to the protection of the Union at home. But they have no representatives in the senate; they cannot partake in the election of members of the house of representatives, or of electors of president and vice president. The judiciary power between citizens of different states, does not extend to them,* in which respect, they are more unfavourably situate than

* 2 Cranch, 452.

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