Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/71

 CH. XXI.] and reprisal, and make rules concerning captures. It is most probable, that an extreme solicitude to follow out the 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 remarked in another place, and will abundantly appear from the remaining auxiliary clauses to the power to declare war, the constitution abounds with pleonasms and repetitions, sometimes introduced from caution, sometimes from inattention, and sometimes from the imperfections of language.

§ 1171. But the express power "to grant letters of marque and reprisal" may not have been thought wholly unnecessary, because it is often a measure of peace, to prevent the necessity of a resort to war. Thus, individuals of a nation sometimes suffer from the depredations of foreign potentates; and yet it may not be deemed either expedient or necessary to redress such grievances by a general declaration of war. Under such circumstances the law of nations authorizes the sovereign of the injured individual to grant him this mode of redress, whenever justice is denied to him by the state, to which the party, who has done the injury, belongs. In this case the letters of marque and reprisal (words used as synonymous, the latter (reprisal) signifying, a taking in return, the former (letters of marque) the passing the frontiers in order to such taking,) contain an authority to seize the bodies or goods of the subjects of the offending state, wherever they may