AVES ISLAND. 263 



in the service of the United States shall he divided or appropriated ; of 

 granting letters of marque and reprisal in time of ^^eace, appointing 

 ■"courts for the trial of piracies and other felonies committed on the high 

 seas, and establishing courts for receiving and determining finally 

 appeals in all cases of capture, provided no member of Congress shall 

 be appointed judge of any of said courts." (lb. p. 6.) 



It will be noticed that the delegation of povt^er by the federal Con- 

 stitution to Congress^ 'to declare war and grant letters of marque and 

 reprisal," is not accompanied by a similar provision to that in the first 

 section, ninth article of the Articles of Confederation above quoted, 

 referring to such letters ''in time of peace," and therefore the delega- 

 tion in the federal Constitution must be construed as referring only 

 to such general or extraordinary commissions or letters to be issued in 

 time of war. And this construction is strengthened by that delega- 

 tion-being coujDled with the power of declaring war, and connected in 

 the same clause and section. And such contraction leaves the power 

 of issuing special letters of reprisal "m time of peace," to be exer- 

 cised as an inherent power or function of the executive branch of the 

 federal government under the laio of nations, unfettered by any con- 

 stitutional restriction or inhibition, aS was contained in article six, and 

 also in article nine, of the Articles of Confederation above quoted. 



This is no novel construction ; for it has, with great force, been con- 

 tended by distinguished statesmen in Congress that the power to grant 

 special reprisals in time of peace, to their citizens, by each of the States, 

 for injuries sustained, either against a co-State or foreign government, 

 hath not been relinquished by the federal compact, and that the eighth 

 section, first article, refers only to general or extraordinary reprisals 

 in time of ivar, and has left the right of special reprisals unaffected by 

 the Constitution ; and as it exists by the law of nations alone, and that 

 it may be so exercised by the federal or State governments in all proper 

 cases. [Vide speech of Senator J. M. Mason, in Senate of the United 

 States, on the fugitive slave bill in 1850.] 



We do not think it necessary to discuss the question of the existence 

 of this power in the several States, or its exercise against each other or 

 against foreign governments. It is sufficient for us that there is not 

 any express delegation by the Constitution to Congress of the exclusive 

 power to grant special reprisals. It is sufficient for us that by the 

 common law of England, and by the civil law, as well as by the uni- 

 versal law of nations , such letters of special reprisal, in time of peace, 

 are in the nature of a judicial torit, and are demandable of right by 

 the subject or citizen of a State from its government when he hath been 

 aggrieved and injured by a foreign State, its subjects, or citizens. 



It is sufficient for us that the Jus gentium, and the usages and prac- 

 tices of all nations under it, have provided rules and formula of pro- 

 cedure that saDe the necessity of congressional legislation to enable 

 such rights to be maintained by the Executive. 



It is not a sound argument to urge that the Executive may endanger 

 the peace of the country by authorizing the issuance of such letters 

 without the authority of Congress. Such argument is founded upon 

 the presumption that the Executive is incompetent or incapable of ex- 

 ercising the functions of government justly and properly, and that 



