Joseph Story: The Power to Declare War and Make Captures

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The Power to Declare War and Make Captures§ 1163.§ 1164.§ 1165.§ 1166.§ 1167.§ 1168.§ 1169.§ 1170.§ 1171.§ 1172.§ 1173.§ 1174.§ 1175.§ 1176.§ 1177.§ 1178.§ 1179.§ 1180.§ 1181.§ 1182.§ 1183.§ 1184.§ 1185.§ 1186.§ 1187.§ 1188.§ 1189.§ 1190.§ 1191.§ 1192.§ 1193. FOOTNOTES
   1. Art. 9; The Federalist, No. 41.
   2. See The Federalist, No. 23, 41.
   3. 1 Tucker's Black. Comm. App. 271.
   4. 1 Black. Comm. 257, 258.
   5. Mr. Hamilton's Plan, Journal of Convention, p. 131.
   6. Several of the states proposed an amendment to the constitution to this effect. But it was never adopted by a majority. ^a Under the confederation, the assent of nine states was necessary to a declaration of war, (Art. 9.)
   a. 1 Tucker's Black. Comm. App. 271, 272, 374.
   7. 1 Tucker's Black. Comm. App. 269 to 272; Rawle on the Const. ch. 9, p. 109.
   8. Journal of Convention, 221,258, 259, 327, 328.
   9. Ibid, 259.
   10. The Federalist, No. 64. See also Rawle on the Const. ch. 9, p. 110; North Amer; Rev. Oct. 1827, p. 263.
   11. Talbot v. Seeman, 1 Cranch's R. 1, 28; Bas v. Tingey, 4 Dall. 37.
   12. Act of 1812, ch. 102.
   13. Rawle on the Const. ch. 9, p. 109; Sergeant on Const. ch. 28, [ch. 30;] Bas v. Tingey, 4 Dall. R. 37.
   14. See Mr. Madison's Letter to Mr. Cabell., 18th Sept. 1828.
   15. 1 Black. Comm. 258, 259.
   16. 1 Black: Comm. 258, 259; Bynkershoek on War, ch. 24, p. 182, by Duponceau; Valin Traite des Prises, p. 223, 321; 1 Tuck. Black. Comm. App. 271; 4 Elliot's Deb. 251.
   17. Brown v. United States, 8 Cranch's R. 1.
   18. 4 Elliot's Deb. 220, 221.
   19. Art. 9; Art. 7.
   20. 1 American Museum, 270, 273, 283; 5 Marshall's Life of Washington, App. note 1.
   21. The Federalist, No. 22, 23. — The difficulties connected with this subject will appear still more striking in a practical view from the letters of General Washington, and other public documents at the period. See 5 Marshall's Life of Washington, ch. 3, p. 125, 126; ch. 5, p. 212 to 220; ch. 6, p. 238 to 248. See 6 Journals of Congress in 1780 passim. Circular Letter of Congress, in May, 1779; 5 Jour. of Cong. 224 to 231.
   22. The Federalist, No. 22, 23.
   23. The Federalist, No. 23; 2 Elliot's Debates, 92, 91.
   24. Journal of Convention, 221, 327, 328.
   25. 2 Elliot's Debates, 285, 286, 307, 308, 430.
   26. 2 Elliot's Debates, 307, 308, 430.
   27. The Federalist, No. 23; 2 Elliot's Debates, 92, 93, 438.
   28. 2 Elliot's Debates, 438.
   29. 1 Black. Comm. 262, 413.
   30. The Federalist, No. 23, 26.
   31. The Federalist, No. 24, 25.
   32. The Federalist, No. 24, and note; Id. No. 26.
   33. The Federalist, No. 24; 2 Elliot's Debates, 438.
   34. The Federalist, No. 24, 25; 2 Elliot's Debates, 292, 293.
   35. The Federalist, No. 24; 2 Elliot's Debates, 292, 293.
   36. The Federalist, No. 24, 41.
   37. Id. No. 25.
   38. The Federalist, No. 25; 2 Elliot's Debates, 92, 93.
   39. The Federalist, No. 25, 41.
   40. Id. 25.
   41. The Federalist, No. 41; 3 Elliot's Debates, 305.
   42. The Federalist, No. 28, 26.
   43. 2 Elliot's Debates, 92, 93.
   44. 3 The Federalist, No. 98, 26, 98.
   45. The Federalist, No. 26; 1 Black. Comm. 413.
   46. The Federalist, No. 41; 2 Elliot's Debates, 93, 308, 309.
   47. The Federalist, No. 26, 41.
   48. The Federalist, No. 26.
   49. 1 Tucker's Black. Comm, App. 272; 1 Black. Comm. 414, 415.
   50. The Federalist, No. 41.
   51. 1 Tucker's Black. Comm. App. 271, 272, 379. — An attempt was also made in the convention, to insert a clause, limiting the number of the army in time of peace to a — number; but it was negatived. Journal of Convention, p. 262.
   52. The Federalist, No. 24 to 29.
   53. Act of 28th of May, 1798, ch. 64; Act of 22d of June, 1798, ch. 74; Act of 2d of March, 1799, ch. 187.
   54. 1 Tucker's Black. Comm. App. 273, 274, 329, 330. See also Virginia Report and Resolutions, 9th of January, 1800, p. 53 to 56.
   55. See Act of 8th of Feb. 1812, ch. 22; Act of 6th of July, 1812, ch. 538; Act of 24th of Feb. 1814, ch. 75; Act of 30th of March, 1814, ch. 96; Act of 27th of Jan. 1815, ch. 178. See also Act of 24th of Feb. 1807, ch. 70.
   56. The Federalist, No. 29.
   57. Art. 9.
   58. Journ. of Convention, 221, 262.
   59. 2 Elliot's Deb. 224, 319, 320.
   60. 2 Elliot's Deb. 319, 320.
   61. The Federalist, No. 11, 24, 41. See also 1 Tucker's Black. Comm. App. 272.
   62. See 5 Marshall's Life of Washington, ch. 7, p. 523 to 531.
   63. Lest it should be supposed, that these remarks are not well founded, the following passage is extracted from the celebrated Report and Resolutions of the Virginia legislature, of 7th and 11th Jan. 1800, which formed the text-book of many political opinions for a long period. "With respect to the navy, it may be proper to remind you, that whatever may be the proposed object of its establishment, or whatever the prospect of temporary advantages resulting therefrom, it is demonstrated. by the experience of all nations, who have adventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. Nor is there any nation, in the judgment of the general assembly, to whose circumstances this remark is more applicable, than to the United States." p. 57, 58. And the senators and representatives were instructed and requested by one of the resolutions "to prevent any augmentation of the navy, and to promote any proposition for reducing it, as circumstances will permit, within the narrowest limits compatible with the protection of the sea-coasts, ports, and harbours of the United States." p. 59.
   64. 1 Black. Comm. 418.
   65. Journal of Convention, p. 221, 262.
   66. Art. 9.
   67. 1 Black. Comm. 262, 421.
   68. 1 Black. Comm. 413, 414, 415, 420, 421.
   69. See United States v. Bevans, 3 Wheaton's R. 336, 390. The Schr. Exchange, 7 Cranch's R. 116.