for an adequate defence under such circumstances. This reliance came very near losing us our independence, and was the occasion of the useless expenditure of many millions.

§ 579. The next power of congress is "to provide "and maintain a navy."

§ 580. Under the confederation congress possessed the power "to build and equip a navy." The same language was adopted in the original draft of the constitution, and it was amended by substituting the present words, apparently without objection, as more broad and appropriate. In the convention, the propriety of granting the power seems not to have been questioned. But it was assailed in the state conventions as dangerous. It was said, that commerce and navigation are the principal sources of the wealth of the maritime powers of Europe; and if we engaged in commerce, we should soon become their rivals. A navy would soon be thought indispensable to protect it. But the attempt on our part to provide a navy would provoke these powers, who would not suffer us to become a naval power. Thus, we should be immediately involved in wars with them. The expenses, too, of maintaining a suitable navy would be enormous; and wholly disproportionate to our resources. If a navy should be provided at all, it ought to be limited to the mere protection of our trade. It was further urged, that the Southern states would share a large portion of the burthens of maintaining a navy, without any corresponding advantages.

§ 581. With the nation at large these objections were not deemed of any validity. The necessity of a navy for the protection of commerce and navigation was not only admitted, but made a strong ground for

577. To these suggestions it was replied with equal force and truth, that to be of any value, the power must be unlimited. It is impossible to foresee, or define the extent and variety of national exigencies, and the correspondent extent and variety of the national means necessary to satisfy them. The power must be co-extensive with all possible combinations of circumstances, and under the direction of the councils entrusted with the common defence. To deny this would be to deny the means, and yet require the end. These must therefore, be unlimited in every matter essential to its efficacy, that is, in the formation, direction, and support of the national forces. This was not doubted under the confederation; though the mode adopted to carry it into effect was utterly inadequate and illusory.

§ 578. It is important also to consider, that the surest means of avoiding war is to be prepared for it in peace. If a prohibition should be imposed upon the United States against raising armies in time of peace, it would present the extraordinary spectacle to the world of a nation incapacitated by a constitution of its own choice from preparing for defence before an actual invasion. As formal denunciations of war are in modern times often neglected, and are never necessary, the presence of an enemy within our territories would be required, before the government would be warranted to begin levies of men for the protection of the state. The blow must be received, before any attempts could be made to ward it off, or to return it. Such a course of conduct would at all times invite aggression and insult; and enable a formidable rival or secret enemy to seize upon the country, as a defenceless prey; or to drain its resources by a levy of contributions, at once irresistible and ruinous. It would be in vain to look to the militia

most without parallel, had literally fought itself into favour, that the nation at large began to awake from its lethargy on this subject, and to insist upon a policy, which should at once make us respected and formidable abroad, and secure protection and honor at home. It has been proudly said by a learned commentator on the laws of England, that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty. Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.

§ 583. The next power of congress is "to make "rules for the government and regulation of the land and "naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. Its propriety, therefore, scarcely could be, and never has been denied, and need not now be insisted on. The clause was not in the original draft of the constitution; but was added without objection by way of amendment. It was without question borrowed from a corresponding clause in the articles of confederation, where it was with more propriety given, because there was a prohibition of all implied powers. In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies. But parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for by acts of parliament. The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.

§ 584. It is a natural result of the sovereignty over the navy of the United States, that it should be exclusive. Whatever crimes, therefore, are committed on board of public ships of war of the United States, whether they are in port or at sea, they are exclusively cognizable and punishable by the government of the United States. The public ships of sovereigns, wherever they may be, are deemed to be extraterritorial, and enjoy the immunities from the local jurisdiction, which belong to their sovereign.

CHAPTER XXII.

POWER OVER THE MILITIA.

§ 585. THE next power of congress is "to provide for calling forth the militia to execute the laws of the "Union, suppress insurrections, and repel invasions."

§ 586. This clause seems, after a slight amendment, to have passed the convention without opposition. It cured a defect severely felt under the confederation, which contained no provision on the subject.

§ 587. The power of regulating the militia, and of commanding its services to enforce the laws, and to suppress insurrections, and repel invasions, is a natural incident to the duty of superintending the common defence, and preserving the internal peace of the nation. In short, every argument, which is urged, or can be urged against standing armies in time of peace, applies forcibly to the propriety of vesting this power in the national government. There is but one of two alternatives, which can be resorted to in cases of insurrection, invasion, or violent opposition to the laws; either to employ regular troops, or to employ the militia to suppress them. In ordinary cases, indeed, the resistance to the laws may be put down by the posse comitatus, or the assistance of the common magistracy. But cases may occur, in which such a resort would be utterly vain, and even mischievous; since it might encourage the factious to more rash measures, and prevent the application of a force, which would at once destroy the hopes and crush the efforts of the disaffected. The general power of the government to pass all laws ne