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THE LAW OF NATIONS
AFFECTING COMMERCE DURING WAR.
OF WAR AND ITS DECLARATION AND HEREIN WHO
PUBLIC War is that state in which nations, authorized by the sovereign power, prosecute their rights by force.1
"It is," says Lord Bacon, "one of the highest war defined. trials of right; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms."
An appeal of so momentous a nature, involving The war-makthe right of judging whether a nation has real and ing power. just grounds of complaint; whether she is authorized to employ force, and justifiable in taking up arms; whether prudence will admit of such a course; whether the welfare of the nation requires it, and cannot otherwise be secured-can be made only by the supreme sovereign power of the state,
'Grotius, De Jure, Lib. I., c. i., § 2. Albericus Gentilus, De Jure Belli, Lib. I., c. ii. Bynkershoek, Quæst. Jur. Pub., Lib. I., c. i. Vattel, Lib. III., c. i., § 1. Hobbes, De Corpore Politico, P. I., c. i., § 2.
? Bacon's Works, Vol. III., p. 40.
whether that exist in king, emperor, or congress, as the representative of the body of the nation.
The right to determine the question of the necessity of an appeal to force for the prosecution or recovery of a national right, for the protection of the national security by the infliction of punishment as an atonement for a national injury, or as the means of averting a threatened danger to national interests, is an inseparable incident to a salutary government. It has been called "one of the rights of majesty.""
The sovereign power of the state, whether the hereditary or elected representative of the people (who constitute the state), can alone be the author of war. By that order it is invoked. In that name it is conducted. By that power alone armies are The war-mak- enlisted, and navies are constructed and manned, and all the human agencies of warfare are but instruments in the hands and control of that power.
"In order to legalize a war, it must be commenced or declared," says Lord Stowell, "by that particular branch of the state which is invested by the constitution with this important prerogative." (6 If," says Brooke, "all the people of England would make war with the king of Denmark, and the king (that is, our king) will not consent to it, this is not
In the United States, the power of declaring The war-mak- war, as well as that of raising all the requisite ing power in the U. States means and supplies for its prosecution, by the exvested solely press provisions of the constitution of the govern
' Hazlitt's and Roche's Manual of Maritime War, p. 2.
Brooke's Abridgment, Tit. Denizen.
ment, is confided exclusively to the Congress of the in the federal nation."
This right of majesty, this highest attribute of the sovereignty of a state, and without which it must of necessity cease to be sovereign, by the positive terms of the written constitution, ordained and established by the people of the United States, "in order to form a more perfect union" than that which had previously existed under the articles of confederation of the several states-is absolutely surrendered by the several states (which, by their people, in convention assembled, adopted and rati fied that constitution) into the hands of the legislative department of the national government. Not only is this done by the provision referred to, expressly conferring the sovereign power upon the federal Congress, which would necessarily exclude the idea of its existence elsewhere, but, as if to guard against the possibility of error, resulting from the hitherto prevailing sentiments in favor of the independent sovereignty of the several states, this right of majesty, this sine qua non of sovereignty, is declared to be shorn from the several states, by the most positive terms of the federal constitution. By section 10 of the 1st article, it is pro- The sovereign vided, that "no state shall engage in war, or keep dered by the troops or ships of war in time of peace, or enter in- several states. to any agreement or compact with another state or with a foreign power," or, in fact, possess the power of doing any of those things which are essential incidents of the war-making power, such as "to grant letters of marque and reprisal, coin money, emit bills of credit, make any thing but gold and silver
1 Const. of U. S., Art. 1, § 8.