an act of parliament makes a new offence felony, the law implies, that it shall be punished with death, as well as with forfeiture.

564. But whatever may be the true import of the word felony at the common law, in regard to municipal offences, its meaning, in regard to offences on the high seas, is necessarily somewhat indeterminate; since the term is not used in the criminal jurisprudence of the Admiralty in the technical sense of the common law. Lord Coke long ago stated, that a pardon of felonies would not pardon piracy; for "piracy or robbery on the high seas was no felony, whereof the common law took any knowledge, &c.; but was only punishable by the civil law, &c.; the attainder by which law wrought no forfeiture of lands or corruption of blood." And he added, that the statute of 28 Henry 8, ch. 15, which created the High Commission Court for the trial of "all treasons, felonies, robberies, murders, and confederacies, committed in or upon the high sea, &c.," did not alter the offence, or make the offence felony, but left the offence as it was before the act, viz. felony only by the civil law.

In

§ 565. Offences against the law of nations are quite as important, and cannot with any accuracy be said to be completely ascertained, and defined in any public code, recognised by the common consent of nations. respect, therefore, as well to felonies on the high seas, as to offences against the law of nations, there is a peculiar fitness in giving to congress the power to define, as well as to punish. And there is not the slightest reason to doubt, that this consideration had very great weight with the convention, in producing the phraseology of the clause. On both subjects it would have been inconvenient, if not impracticable, to have referred

to the codes of the states, as well from their imperfection, as their different enumeration of the offences. Certainty, as well as uniformity, required, that the power to define and punish should reach over the whole of these classes of offences.

§ 566. What is the meaning of "high seas," within the intent of this clause, does not seem to admit of any serious doubt. The phrase embraces not only the waters of the ocean, which are out of sight of land, but the waters on the sea coast below low water mark, whether within the territorial boundaries of a foreign nation, or of a domestic state. Mr. Justice Blackstone has remarked, that the main sea or high sea begins at the low water mark. But between the high water mark and low water mark, where the tide ebbs and flows, the common law and the admiralty have divisum imperium, an alternate jurisdiction, one upon the water, when it is full sea; the other upon the land, when it is an ebb. He doubtless here refers to the waters of the ocean on the sea-coast, and not in creeks and inlets. Lord Hale says, that the sea is either that, which lies within the body of the county, or without. That, which lies without the body of a county, is called the main sea, or ocean. So far, then, as regards the states of the Union, "high seas" may be taken to mean that part of the ocean, which washes the sea-coast, and is without the body of any county, according to the common law; and, so far as regards foreign nations, any waters on their sea-coast, below low water mark.

CHAPTER XXI.

THE POWER TO DECLARE WAR AND MAKE

CAPTURES.

§ 567. THE next power of congress is to "declare war, grant letters of marque and reprisal, and make "rules concerning captures on land and water."

§ 568. 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 war can be declared only by the majority of the states, in congress.

§ 569. 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 constitu

tion have been confided to the executive, or to the senate, or to both conjointly.

§ 570. 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, secrecy, 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 to, 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 essen

tially 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.

§ 571. 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.

the

§ 572. 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 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