Article 1, Section 8, Clause 11

Document 18

Joseph Story, Commentaries on the Constitution 3:§§ 1164--72


§ 1164. A similar exclusive power was given to congress by the confederation. That such a power ought to exist in the national government, no one will deny, who believes, that it ought to have any powers whatsoever, either for offence or defence, for the common good, or for the common protection. It is, therefore, wholly superfluous to reason out the propriety of granting the power. It is self-evident, unless the national government is to be a mere mockery and shadow. The power could not be left without extreme mischief, if not absolute ruin, to the separate authority of the several states; for then it would be at the option of any one to involve the whole in the calamities and burthens of warfare. In the general government it is safe, because there it can be declared only by the majority of the states.

§ 1165. The only practical question upon this subject would seem to be, to what department of the national government it would be most wise and safe to confide this high prerogative, emphatically called the last resort of sovereigns, ultima ratio regum. In Great Britain it is the exclusive prerogative of the crown; and in other countries, it is usually, if not universally, confided to the executive department. It might by the constitution have been confided to the executive, or to the senate, or to both conjointly.

§ 1166. In the plan offered by an eminent statesman in the convention, it was proposed, that the senate should have the sole power of declaring war. The reasons, which may be urged in favour of such an arrangement, are, that the senate would be composed of representatives of the states, of great weight, sagacity, and experience, and that being a small and select body, promptitude of action, as well as wisdom, and firmness, would, as they ought, accompany the possession of the power. Large bodies necessarily move slowly; and where the co-operation of different bodies is required, the retardation of any measure must be proportionally increased. In the ordinary course of legislation this may be no inconvenience. But in the exercise of such a prerogative, as declaring war, despatch, secresy, and vigour are often indispensable, and always useful towards success. On the other hand it may be urged in reply, that the power of declaring war is not only the highest sovereign prerogative; but that it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger, that war will find it both imbecile in defence, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted, as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted, as to its time, and the ways and means of making it effective. The co-operation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two thirds of both houses.

§ 1167. This reasoning appears to have had great weight with the convention, and to have decided its choice. Its judgment has hitherto obtained the unqualified approbation of the country.

§ 1168. In the convention, in the first draft of the constitution, the power was given merely "to make war." It was subsequently, and not without some struggle, altered to its present form. It was proposed to add the power "to make peace;" but this was unanimously rejected; upon the plain ground, that it more properly belonged to the treaty-making power. The experience of congress, under the confederation, of the difficulties, attendant upon vesting the treaty-making power in a large legislative body, was too deeply felt to justify the hazard of another experiment.

§ 1169. The power to declare war may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed. The former course was resorted to in our war with Great Britain in 1812, in which congress enacted, "that war be, and hereby is declared to exist, between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories." The latter course was pursued in the qualified war of 1798 with France, which was regulated by divers acts of congress, and of course was confined to the limits prescribed by those acts.

§ 1170. The power to declare war would of itself carry the incidental power to grant letters of marque and reprisal, and make rules concerning captures. It is most probable, that an extreme solicitude to follow out the powers enumerated in the confederation occasioned the introduction of these clauses into the constitution. In the former instrument, where all powers, not expressly delegated, were prohibited, this enumeration was peculiarly appropriate. But in the latter, where incidental powers were expressly contemplated, and provided for, the same necessity did not exist. As has been already remarked in another place, and will abundantly appear from the remaining auxiliary clauses to the power to declare war, the constitution abounds with pleonasms and repetitions, sometimes introduced from caution, sometimes from inattention, and sometimes from the imperfections of language.

§ 1171. But the express power "to grant letters of marque and reprisal" may not have been thought wholly unnecessary, because it is often a measure of peace, to prevent the necessity of a resort to war. Thus, individuals of a nation sometimes suffer from the depredations of foreign potentates; and yet it may not be deemed either expedient or necessary to redress such grievances by a general declaration of war. Under such circumstances the law of nations authorizes the sovereign of the injured individual to grant him this mode of redress, whenever justice is denied to him by the state, to which the party, who has done the injury, belongs. In this case the letters of marque and reprisal (words used as synonymous, the latter (reprisal) signifying, a taking in return, the former (letters of marque) the passing the frontiers in order to such taking,) contain an authority to seize the bodies or goods of the subjects of the offending state, wherever they may be found, until satisfaction is made for the injury. 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.

§ 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.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 11, Document 18
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

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