§ 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.[1] It was proposed to add the power "to make peace;" but this was unanimously rejected;[2] 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.[3]
§ 1169. The power to declare war maybe 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.[4] 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."[5] 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.[6]
§ 1170. The power to declare war would of itself carry the incidental power to grant letters of marque- ↑ Journal of Convention, 221, 258, 259, 327, 328.
- ↑ Id. 259.
- ↑ The Federalist, No. 64. See also Rawle on the Const. ch. 9, p. 110; North Amer. Rev. Oct. 1827, p. 203.
- ↑ Talbot v. Seeman, 1 Cranch's R. 1, 28; Bas v. Tingey, 4 Dall. 37.
- ↑ Act of 1812, ch. 102.
- ↑ Rawle on the Const. ch. 9, p. 109; Sergeant on Const. ch. 28, [ch. 30;] Bas v. Tingey, 4 Dall. R. 37.
