Article 1, Section 8, Clause 11

Document 11

Alexander Hamilton, The Examination, no. 1

17 Dec. 1801Papers 25:454--57

The Message of the President, by whatever motives it may have been dictated, is a performance which ought to alarm all who are anxious for the safety of our Government, for the respectability and welfare of our nation. It makes, or aims at making, a most prodigal sacrifice of constitutional energy, of sound principle, and of public interest, to the popularity of one man.

The first thing in it which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her cruisers with their crews.

When the newspapers informed us, that one of these cruisers, after being subdued in a bloody conflict, had been liberated and permitted quietly to return home, the imagination was perplexed to divine the reason. The conjecture naturally was, that pursuing a policy, too refined perhaps for barbarians, it was intended by that measure to give the enemy a strong impression of our magnanimity and humanity. No one dreampt of a scruple as to the right to seize and detain the armed vessel of an open and avowed foe, vanquished in battle. The enigma is now solved, and we are presented with one of the most singular paradoxes, ever advanced by a man claiming the character of a statesman. When analyzed, it amounts to nothing less than this, that between two nations there may exist a state of complete war on the one side--of peace on the other.

War, of itself, gives to the parties a mutual right to kill in battle, and to capture the persons and property of each other. This is a rule of natural law; a necessary and inevitable consequence of the state of war. This state between two nations is completely produced by the act of one--it requires no concurrent act of the other. It is impossible to conceive the idea, that one nation can be in full war with another, and this other not in the same state with respect to its adversary. The moment therefore that two nations are, in an absolute sense, at war, the public force of each may exercise every act of hostility, which the general laws of war authorise, against the persons and property of the other. As it respects this conclusion, the distinction between offensive and defensive war, makes no difference. That distinction is only material to discriminate the agressing nation from that which defends itself against attack. The war is offensive on the part of the state which makes it; on the opposite side it is defensive: but the rights of both, as to the measure of hostility, are equal.

It will be readily allowed that the Constitution of a particular country may limit the Organ charged with the direction of the public force, in the use or application of that force, even in time of actual war: but nothing short of the strongest negative words, of the most express prohibitions, can be admitted to restrain that Organ from so employing it, as to derive the fruits of actual victory, by making prisoners of the persons and detaining the property of a vanquished enemy. Our Constitution happily is not chargeable with so great an absurdity. The framers of it would have blushed at a provision, so repugnant to good sense, so inconsistent with national safety and inconvenience. That instrument has only provided affirmatively, that, "The Congress shall have power to declare War;" the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary. This inference is clear in principle, and has the sanction of established practice. It is clear in principle, because it is self-evident, that a declaration by one nation against another, produce[s] at once a complete state of war between both; and that no declaration on the other side can at all vary their relative situation: and in practice it is well known, that nothing is more common, than when war is declared by one party, to prosecute mutual hostilities, without a declaration by the other.

The doctrine of the Message includes the strange absurdity, that, without a declaration of war by Congress, our public force may destroy the life, but may not restrain the liberty, or seize the property of an enemy. This was exemplified in the very instance of the Tripolitan corsair. A number of her crew were slaughtered in the combat, and after she was subdued she was set free with the remainder. But it may perhaps be said, that she was the assailant, and that resistance was an act of mere defence, and self-preservation. Let us then pursue the matter a step further. Our ships had blockaded the Tripolitan Admiral in the bay of Gibraltar; suppose, he had attempted to make his way out, without first firing upon them: if permitted to do it, the blockade was a farce; if hindered by force, this would have amounted to more than a mere act of defence; and if a combat had ensued, we should then have seen an unequivocal illustration of the unintelligible right, to take the life but not to abridge the liberty, or capture the property of an enemy.

Let us suppose an invasion of our territory, previous to a declaration of war by Congress. The principle avowed in the Message would authorize our troops to kill those of the invader, if they should come within the reach of their bayonets, perhaps to drive them into the sea, and drown them; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships, with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home.

The inconvenience of the doctrine in practice, is not less palpable than its folly in theory. In every case it presents a most unequal warfare. In the instance which has occurred, the vanquished Barbarian got off with the loss of his guns. Had he been victorious, the Americans, whose lives might have been spared, would have been doomed to wear out a miserable existence in slavery and chains. Substantial benefits would have rewarded his success; while on our side, life, liberty and property, were put in jeopardy, for an empty triumph. This, however, was a partial inconvenience--cases may arise in which evils of a more serious and comprehensive nature wou'd be the fruits of this visionary and fantastical principle. Suppose that, in the recess of Congress, a foreign maritime power should unexpectedly declare war against the United States, and send a fleet and army to seize Rhode-Island, in order from thence to annoy our trade and our seaport towns. Till the Congress should assemble and declare war, which would require time, our ships might, according to the hypothesis of the Message, be sent by the President to fight those of the enemy as often as they should be attacked, but not to capture and detain them: If beaten, both vessels and crews whould be lost to the United States: if successful, they could only disarm those they had overcome, and must suffer them to return to the place of common rendezvous, there to equip anew, for the purpose of resuming their depredations on our towns and our trade.

Who could restrain the laugh of derision at positions so preposterous, were it not for the reflection that in the first magistrate of our country, they cast a blemish on our national character? What will the world think of the fold when such is the shepherd?

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 11, Document 11
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961--79. See also: Federalist

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