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The regulation of foreign commerce appertains to congress alone, the punishment of offences committed on the high seas is an unavoidable incident to this power; as soon as the constitution was adopted, the power of the states in this respect was at an end. But the principle of this exclusive jurisdiction might perhaps be further extended. After the territorial boundaries of a nation are left, the sea becomes the common property of all nations, and the rights and privileges relative thereto being regulated by the law of nations and treaties, properly belong to the national jurisdiction, and would be inconveniently retaimed by the states which, in this respect, form only parts of the nation.
It does not seem to have been necessary to define the crime of piracy. There is no act on which the universal sense of nations has been so fully and distinctly expressed, as there is no act which is so universally punished. The pirate is the enemy of all nations, and all nations are the enemy of the pirate.
Felony is a term derived from the common law of England, and when committed on the high seas, amounts to piracy. The power to define either may have been introduced to authorize congress to qualify and reduce the acts which should amount to either. It is coupled with the power to punish, and this power extends not merely to citizens of the United States, but to all others except the citizens or subjects of a foreign state sailing under its flag and committing acts which amount to piracy, but general piracy committed by persons on board of a vessel, acting in defiance of all law, and acknowledging obedience to no government, are punishable in our courts and in the courts of all nations.(43)
(43) 5 Wheaton, 151, 417.
By the high seas we are to understand not only the ocean out of sight of land, but waters on the sea coast beyond the boundaries of low water mark, although in a roadsted or bay, within the jurisdiction or limits of one of the states or of a foreign government.(44)
A power to define and to punish offences against the law of nations is contained in the same paragraph, but it is doubtful whether the power to punish ought to be considered as an exclusive one. The law of nations forms a part of the common law of every civilized country ; violations of it may be committed as well on land as at sea, and while the jurisdiction of the separate states is admitted to be withdrawn from them in regard to acts committed on the sea, it does not seem to follow that it is superseded as to those on shore.
Such acts may be of various kinds, and although the most promiuent subjects under this head are those which relate to the persons and privileges of ambassadors, yet in many other particulars, infringements of the law of nations may be proper subjects of state jurisdiction. But even if an outrage were committed on a diplomatic character, and he preferred the redress to be obtained from a state court to that afforded by the courts of the United States, it is not perceived that this clause would prohibit him 'from doing so, yet whether the power is exclusive or not, on which some further remarks will be made, the power to define and to punish this class of offences is with great propriety given to congress. The United States being alone responsible to foreign nations for all that affects their mutual intercourse, and tends to promote the general relations of good order and just demeanour, it rests with them alone to declare what shall constitute such crimes, and to prescribe suitable punishments.
(44) 1 Gallison, 124. 5 Wheaton, 204, 206.
When such laws 'are made, they become binding rules of decision as well on the state courts as on the courts of the United States; but if cases arise for which no such statutory provision has been made, both these descriptions of courts are thrown upon those general principles, which being enforced by other pations, those nations have a right to require us to apply 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 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; (45) 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
(45) 4 Dallas, 57.
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 years. But in England, the king is, in this respect, equally dependent on the parliament, and its bistory shows that the power 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 termina. tion, 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 senate. 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. Bat 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