legal status of war. Jefferson sent a squadron
of frigates to the Mediterranean to protect our commerce but its mission
was limited to defense in the narrowest sense of the term. After one of
the vessels in this squadron had been engaged by, and had defeated, a
Tripolitan cruiser, the latter was permitted to return home. Jefferson
defended this course in a message to Congress saying, "Unauthorized by
the Constitution, without the sanction of Congress, to go beyond the
line of defence, the vessel being disabled from committing further
hostilities, was liberated with its crew."[1220] Hamilton promptly
espoused a different interpretation of the power given to Congress to
declare war. "It is the peculiar and exclusive province of Congress," he
declared "_when the nation is at peace_ to change that state into a
state of war; whether from calculations of policy, or from provocations,
or injuries received; in other words, it belongs to Congress only _to go
to War_. But when a foreign nation declares or openly and avowedly makes
war upon the United States, they are then by the very fact _already at
war_, and any declaration on the part of Congress is nugatory; it is at
least unnecessary."[1221] Apparently Congress shared the view that a
formal declaration of war was unnecessary. It enacted a statute which
authorized the President to instruct the commanders of armed vessels of
the United States to "seize and make prize of all vessels, goods and
effects, belonging to the Bey of Tripoli, * * *; and also to cause to be
done all such other acts of precaution or hostility as _the state of
war_ will justify, * * *"[1222]

THE PRIZE CASES, 1863

Sixty years later the Supreme Court, in sustaining the blockade of the
Southern ports which Lincoln had instituted in April 1861, at a time
when Congress was not in session, adopted virtually the same line of
reasoning as Hamilton had advanced. "This greatest of civil wars" said
the Court "was not gradually developed * * * it * * * sprung forth
suddenly from the parent brain, a Minerva in the full panoply of _war_.
The President was bound to meet it in the shape it presented itself,
without waiting for Congress to baptize it with a name; and no name
given to it by him or them could change the fact."[1223] This doctrine
was sharply challenged by a powerful minority of the Court on the ground
that while the President could unquestionably adopt such measures as the
statutes permitted for the e