The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

Chapter XXXVI.

Powers of Congress in relation to Piracy and Offenses against the Law of Nations; War; Marque and Reprisal, Public Defense, District of Columbia; Implied Powers.

§1. The next clause grants to congress the power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." Piracy is commonly defined to be forcible robbery or depredation upon the high seas. But the term felony was not exactly defined by the laws of England, whence the common law of this country was derived; consequently its meaning was not the same in all the states. It was sometimes applied to capital offenses only; at other times, to all crimes above misdemeanors. For the sake of uniformity, the power to define these offenses is given to congress: and as the states have no jurisdiction beyond their own limits, it is proper that congress should have the power to punish as well as define crimes committed on the high seas.

§2. Nor were offenses against the law of nations more clearly defined: therefore the power to define these are with equal propriety given to congress. As our citizens are regarded by foreign nations as citizens of the United States and not as citizens of their respective states; and as the general government alone is responsible to foreign nations for injuries committed on the high seas by citizens of the United States, this power is vested in congress.

§3. Congress is also properly intrusted with the power "to declare war; grant letters of marque and reprisal; and make rules concerning captures on land and water." It is very evident that a single state ought not to be allowed to make war. As the people of all the states become involved in the evils of war, the power to declare it is justly given to the representatives of the whole nation. In monarchical governments this power is exercised by the king, or supreme ruler. But so important a power should not be intrusted to a single individual. The framers of the constitution have wisely intrusted it to the representatives of those who have to bear the burdens of the war.

§4. Marque means passing the frontier or limits of a country; reprisal, taking in return. Letters of marque and reprisal authorize persons injured by citizens or subjects of another nation to seize the bodies or goods of any of the citizens of such nation, and detain them until satisfaction shall be made. To permit an individual to act as judge in his own case in redressing his private wrongs would increase the dangers of war.

§5. Nor should a state be permitted to authorize its citizens to make reprisals; for, although such authority is designed to enable the citizens of one country to obtain redress for injuries committed by those of another, without a resort to war, the tendency of reprisals is to provoke rather than to prevent war; and as the whole nation becomes involved in a war, the power to authorize reprisals properly belongs to the general government. Indeed it is not clear that such license ought ever to be given. It does not appear strictly just to capture the bodies or goods of unoffending persons, especially before war has been declared between the two countries. But if the power to grant such license is ever to be exercised, it ought to be vested in congress.

§6. As congress has the power to declare war, it ought to have power to make rules concerning the property captured in time of war. The general practice is to distribute the proceeds of the property among the captors as a reward for bravery and a stimulus to exertion. But proof must be made in a court of the United States that the property was taken from the enemy, before it is condemned by the court as a prize.

§7. The next five clauses provide for the security and defense of the nation. The power to declare war would be of little use in the hands of congress, without power over the army, navy and militia. This had been proved by experience Congress had power under the confederation to declare war; but, as we have seen, it could not raise troops, nor compel the states to raise them. To guard against similar difficulties in future, power to control the public forces was placed where it can be promptly and effectively exercised.

§8. The next power of congress is, "to exercise exclusive legislation over such district, not exceeding ten miles square, as may, by cession of particular states, and the acceptance of congress, become the seat of government of the United States." If the seat of the general government were within the jurisdiction of a state, congress and other public officers would be dependent on the state authority for protection in the discharge of their duties. To guard the public business more effectually against the danger of interruption, complete and exclusive power at the seat of government is given to congress. The old congress had once, near the close of the Revolution, been treated with insult and abuse while sitting at Philadelphia; and the executive authority of Pennsylvania having failed to afford protection, congress adjourned to Princeton in the State of New Jersey.

§9. It appears that the cession of this territory to the general government had not yet been made; but it was in contemplation by the states of Virginia and Maryland to cede it. It is called the District of Columbia. Its inhabitants are subject to the laws of congress. That part of the district which was ceded by Virginia, was in 1846, retroceded by congress to that state. To congress is given, with equal propriety, exclusive authority over all places purchased "for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings."

§10. The last power granted in this section, is the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." As it was impossible to enumerate in the constitution every particular act which congress might find it necessary to perform, certain powers were expressly granted; and to these powers was added this general grant of power to pass laws for carrying them into effect.

§11. It is the opinion of eminent statesmen that this clause confers no additional power. They hold that the power therein granted is necessarily implied or included in the foregoing powers. For example: The power "to regulate commerce" includes the power to cause the construction of break-waters and light-houses, the removal of obstructions from navigable rivers, and the improvement of harbors; for in regulating and facilitating commerce, these works and improvements are absolutely necessary. So the power "to establish post-offices" implies the power to punish persons for robbing the mail. The doctrine is, "that wherever a general power to do a thing is given, every particular power for doing it is included." Hence it is inferred that congress would have had the power to pass the laws here authorized, though no express power for that purpose had been given.

§12. Besides the long list of powers contained in the eighth section of the first article of the constitution, and considered in preceding chapters, there are sundry other powers of congress in subsequent articles, which will be noticed in their order.