hostilities but the treaty-making power must ordinarily act to terminate the war.

"I have yet to learn," wrote Secretary of State Bayard, "that a war in which the belligerents, as was the case with the late Civil War, are persistent and determined, can be said to have closed until peace is conclusively established, either by treaty when the war is foreign, or when civil by proclamation of the termination of hostilities on one side and the acceptance of such proclamation on the other. The surrender of the main armies of one of the belligerents does not of itself work such termination." 24 However, as the quotation suggests, war may be terminated in two other ways, by complete conquest, causing annihilation of one belligerent, or by cessation of hostilities and tacit acceptance of peace by both parties.25 The South African and American civil wars illustrate the first method; the wars between Spain and her revolting American colonies the second.

213. The Power to Recognize the Termination of War.

What authority in the United States can determine the exact date at which a war terminates in these circumstances? The question is one of fact and the recognition of facts in international relations is normally a function of the President. Thus President Johnson proclaimed the end of the Civil War and the courts recognized these proclamations as authoritative.26 Secretary of State Seward seems to have assumed likewise that the Executive could recognize the end of a war between two foreign states, when in 1868 he informed the Spanish minister that "the United States may find itself obliged to decide the question whether the war still exists between Spain and Peru, or whether that war has come to an end." 27

The question of terminating a war by proclamation, made by one side and acquiesced in by the other, was raised by the Knox

24 Moore, Digest, 7: 337. Jefferson thought "general letters of mark and reprisal" might be preferred to a formal declaration of war, "because, on a repeal of their edicts by the belligerent, a revocation of the letters of mark restores peace without the delay, difficulties and ceremonies of a treaty." Letter to Mr. Lincoln, 1808, ibid., 7: 123.

25 Wilson and Tucker, op. cit., pp. 281-282.

26

14 Stat. 811, 13 Stat. 814, The Protector, 12 Wall. 700. 27 Moore, Digest, 7: 337.

resolution of May 21, 1920, for repealing the declarations of war against Germany and Austria. This resolution was vetoed by President Wilson on May 27,28 because it "does not seek to accomplish any of these objects" for which the United States entered the war, but when again introduced by the Senate Foreign Relations Committee, April 25, 1921, it passed both Houses and was signed by President Harding, July 2, 1921. The Resolution was defended on the ground that what Congress could pass it could repeal. This assumption fails to recognize the distinction between an act of legislation and a resolution creating a status or condition. Congress cannot, in general, repeal resolutions of the latter class, of which resolutions admitting states to the Union, incorporating territory, admitting nationals to citizenship, etc., are examples. An act of Congress can undoubtedly terminate war legislation and bring war to an end so far as domestic law is concerned, 28a but its international effect, whatever its wording, depends upon the attitude of the enemy. This was recognized by President Harding when he submitted to the Senate draft treaties by which the enemy powers accepted the resolution of July 2, 1921:

28b

"Formal Peace," he wrote to Senator Lodge on September 21, 1921, "has been so long delayed that there is no need now to emphasize the desirability of early action on the part of the Senate. It will be most gratifying if you and your colleagues will find it consistent to act promptly so that we may put aside the last remnant of war relationship and hasten our return to the fortunate relations of peace."

We have noticed that the power of recognizing foreign states, governments and belligerency is vested exclusively in the Presi

28 See note by C. P. Anderson, Am. Jl. Int. Law, 14: 384 (July, 1920). Text of Resolution, ibid., p. 419; legislative history, ibid., p. 438; veto message, Cong. Rec., 59: 7747. See also Corwin, Mich. Law Rev., 18: 669 (May, 1920).

28a This was accomplished in part by a Resolution of March 3, 1921 (41 Stat. 1359), and in full by that of July 2, 1921. See remarks of Senator

Lodge, Cong. Rec., Sept. 24, 1921, 61: 6434.

28b Cong. Rec., Sept. 24, 1921, 61: 6434. In presenting the treaties from the Committee on Foreign Relations Senator Lodge remarked: "Where would the failure to ratify leave us? It would leave us where we are todayin a technical state of war with Germany, Austria, and Hungary." Ibid., September 26, 1921, 61: 6458.

dent.29 The power to recognize the existence of war to which the United States is a party is vested concurrently in the President and Congress, the latter having the power by implication from its express power to declare war.30 No constitutional clause has been cited from which congressional power to recognize the termination of war can be implied. On the contrary a resolution vesting Congress with power to "make peace" was voted down in the Federal Convention of 1787.31

The President's power to recognize the termination of war may be clearly deduced from his power as the representative organ and has been admitted by the Supreme Court in the case of the Civil War.32 His proclamation or his reception or dispatch of diplomatic representatives from or to a former enemy therefore seems the proper method for recognizing peace in the absence of treaty, though, as in the case of recognizing new states, he is of course free to solicit the advice of Congress, which action would usually be desirable. This was the course actually followed in terminating the wars with Germany, Austria, and Hungary. By his proclamation, issued on November 14, 1921,32a after exchange of ratifications of the treaty with Germany of August 25 (and similar treaties with the other powers) President Harding recognized that the war terminated on July 2, 1921, the date on which Congress had passed a resolution declaring the war "at an end." The antedating of the proclamation indicates that the war terminated, not by express treaty, but by tacit agreement, recognized in the United States by the President, when. in his opinion, there was sufficient evidence that Germany had concurred in the opinion expressed by the United States on July 2.

B. The Power to Use Force in Foreign Affairs.

214. Diplomatic Pressure.

Force, coercion, or pressure may assume a number of forms in the conduct of foreign relations. The sending of notes, the making

29 Supra, sec. 194.

30 Supra, sec. 210.

31 Debate, Aug. 17, 1787, Farrand, op. cit., 2: 319.

32 The Protector, 12 Wall. 700.

32a Treaty Series No. 658.

of formal protest, the withdrawal of a minister or ambassador, or the complete severance of diplomatic relations are milder forms of pressure, although all may carry implications of more serious action, and the last is seldom resorted to except as a preliminary to war. These acts are within the exclusive power of the President.33

215. Display of Force.

A more material means of bringing pressure is the display of force. This measure may be designed to bring pressure upon a foreign government by intimidation; to bring protection to merchant vessels on the high seas; or to bring order on the high seas through the intimidation of pirates, slave traders, etc. The President as Commander-in-Chief has power to move the navy. President Roosevelt's dispatch of a naval vessel to Colon, Panama, in 1903 illustrates the effectiveness of such methods. His dispatch of the fleet around the world in 1903 furnishes another illustration. Display of force is useless as an agency of intimidation unless the party to be intimidated believes the force has power to act. Hence this method of bringing pressure can hardly be separated from such methods as the occupation of territory, reprisals, and the seizure of private property. Consequently the use of the navy for intimidation should be authorized by the President only after due consideration and never by a subordinate except in extreme emergency. Thus in 1887 Secretary of State Bayard wrote the Chargé in Peru: 35

34

"It is always expected that the agents of this Department abroad will exercise extreme caution in summoning national war vessels to their aid at critical junctures, especially if there be no practical purpose to be subserved by their presence."

Congress has on several occasions authorized the display of force for protecting merchant vessels. Such authority was given by several acts of 1798 to defend them against French privateers. On February 25, 1917, President Wilson asked Congress to authorize 33-Moore, Digest, 7: 103.

34 Supra, sec. 145, Thayer, Life of John Hay, 2: 351. President Roosevelt's threat to employ force if Germany refused to arbitrate the Venezuela question in 1904, may also be mentioned, Ibid., 2: 287.

35 Moore, Digest, 7: 109, see also Mr. Adee to Mr. Sill, 1895, ibid., 2: 401.

the arming of merchant vessels as a defense against German submarines but added: 36

"No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers, but I prefer in the present circumstances not to act upon general implication. 1 wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do."

The proposed measure passed the House of Representatives but was defeated by a Senate filibuster. Several Senators attacked it as an unconstitutional delegation of the power to declare war. However, on March 12th, Secretary of State Lansing gave out a statement to the foreign legations in Washington that: 37

"The government of the United States has determined to place upon all American merchant vessels sailing through the barred areas, an armed guard for the protection of the vessels and the lives of the persons on board."

President John Adams had no doubt of his power to authorize the arming of merchant vessels, although he asked Congress to make detailed regulations for this purpose as it did in 1798.38 The neutrality laws appear expressly to recognize the President's power by requiring armed merchant vessels leaving American ports to give bond "until the decision of the President is had thereon." 39 It should be noticed, however, that international law, as interpreted in American courts, authorizes the condemnation by a belligerent of merchant vessels resisting visit and search, and an act of 1819, still in effect, expressly prohibits resistance to "a public armed vessel of some nation in amity with the United States." 41 The President's power to authorize arming is, however, clear, as is his power to authorize protection by naval convoys.42

36 Corwin, op. cit., p. 152.

40

37 Naval War College, Int. Law Docs., 1917, p. 225.

38 Message, May 16, 1797, Richardson, Messages, 1: 237.

39 Criminal Code of 1910, sec. 17.

40 The Bermuda, 3 Wall. 514; The Jane, 37 Ct. Cl. 24; The Rose, 37 Ct. Cl. 240; Moore, Digest, 7: 485-487; Naval War College, Int. Law Topics, 1903. p. 110; 1907, p. 61.

41 Act March 3, 1819, 3 Stat. 513, made permanent Jan. 30, 1823, 3 Stat. 721. See also remarks of J. Q. Adams, Moore, Digest, 7: 492.

42 Ibid., 7: 492; Corwin, op. cit., p. 156.