208. The Recognition of War by Congress.

Suppose a foreign government commits such acts against the United States. What authority can recognize them as in fact the initiation of war? The power of Congress to declare war unquestionably embraces the power to recognize war. In fact all of the foreign wars to which the United States has been a party have been not declarations of war, but recognitions of war, if we are to judge by the terms of the initiating act of Congress. Thus on June 18, 1812,8 Congress enacted "that war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies, thereof, and the United States of America and their territories." The act of May 13, 1846, recited:

"Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States: Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That, for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termination, the President be, and he is hereby, authorized to employ the militia, naval and military forces of the United States, etc."

War resolutions of April 25, 1898, April 6, 1917, and December 7, 1917, were of similar character.1

10

209. The Recognition of War by the President.

But does the President also have power to recognize war? President Jefferson thought not in 1801 but was not deterred from authorizing defensive measures. Read his message of December 8, 1801:11

"Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron

82 Stat. 755. A declaration that war "exists" is the usual form in all countries. See British Proclamation of War, August 4, 1914, Naval War College, Int. Law Docs., 1917, p. 117, and other declarations in that volume. According to J. B. Moore, "the co-existence of the two phrases may be ascribed to motives of political strategy rather than to any belief or supposition that they denoted different legal conceptions." Proc. Am. Phil. Soc., Minutes, 60: xvii.

99 Stat. 9.

10 Infra, notes 18, 19.

11 Richardson, Messages, 1: 326.

of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. . . . One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part. . . . unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of Defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of our adversaries."

...

Congress made the requisite authorization by resolution of February 6, 1802,12 but Hamilton, as "Lucius Crassus," could not restrain a comment on the message:

13

"The first thing in it, which excites our surprise, is the very extraordinary position, that though Tripoli had declared war in form against the United States, and had enforced it by actual hostility, yet that there was not power, for want of the sanction of Congress, to capture and detain her crews. . . . When analyzed it amounts to nothing less than this, that between two nations there may exist a state of complete war on the one side-of peace on the other. . . .

...

"The principle avowed in the Message would authorize our troops to kill those of the invader, if they should come within reach of their bayonets, perhaps to drive them into the sea, and drown them; but not to disable them from doing harm, by the milder process of making them prisoners, and sending them into confinement. Perhaps it may be replied, that the same end would be answered by disarming, and leaving them to starve. The merit of such an argument would be complete by adding, that should they not be famished, before the arrival of their ships with a fresh supply of arms, we might then, if able, disarm them a second time, and send them on board their fleet, to return safely home. . . .

"Who could restrain the laugh of derision at positions so preposterous, were it not for the reflection that in the first magistrate of our country, they cast a blemish on our national character? What will the world think of the fold when such is the shepherd?"

President Polk approached the position of Hamilton when he met the Mexican "invasion" of disputed American territory by authorizing the battles of Palo Alto and Resaca de la Palma. Following these engagements he said in his message of May 11, 1846:

122 Stat. 129.

13 Hamilton, Works, Hamilton, ed., 7: 745-748.

"After reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now at war.

"As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights and the interests of our country.

"In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prosecuting the war with vigor, and thus hastening the restoration of peace." 14 The Supreme Court accepted the views of Hamilton and Polk, when in the prize cases, it held that President Lincoln had properly recognized the southern rebellion as war.15

"If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson 247) observes, It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' . . .

"This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it nevertheless 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 presents 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. . . .

"Whether the President, in fulfilling his duties as Commander-in-Chief in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decision and acts of the political department of the government to which this power was intrusted. 'He must determine what degree of force the crisis demands.' The Proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case."

14 Richardson, Messages, 4: 442-443.

15 The Prize Cases, 2 Black 635, 638. Approved Matthews v McStea, 91 U. S. 7 (1875).

President McKinley accepted this opinion and applied it to foreign war when on April 22, 1898, he recognized the Spanish rejection of the congressional ultimatum of April 20,16 as a declaration of war and authorized a blockade of Cuba. Three days later, on April 25, Congress passed a resolution declaring: 18

17

"That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain."

In his war message of April 2, 1917, President Wilson asked Congress to declare the recent course of the German government to be in fact nothing less than war against the United States." Nevertheless, he admitted that it belonged to Congress to "formally accept the status of belligerent which has thus been thrust upon it." Congress did so by a resolution signed by the President 1:18 p.m., April 6, 1917, which asserted "that the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared."

210. The Power to Recognize War.

Practice and opinion indicate that the President concurrently with Congress has power to recognize the existence of civil or foreign war against the United States. It is believed, however, that such power could not properly be exercised unless the fact of war against the United States was so patent as to leave no doubt. Acts of war, such as those committed by Germany from 1915 to 1917, would not justify presidential recognition of war. In fact it is believed that with the general acceptance of the III Hague Convention of 1907,

16 30 Stat. 738; Moore, Digest, 6: 226.

17 Message April 25, 1898, Moore, Digest, 6: 229.

18 30 Stat. 364.

19 Comp. Stat., p. 17, Naval War College, Int. Law Doc., 1917, p. 225. A resolution of Dec. 7, 1917, stated: "Whereas the Imperial and Royal Austro-Hungarian Government has committed repeated acts of war against the Government and the people of the United States of America: Therefore be it Resolved. . . That a state of war is hereby declared to exist between, etc." Ibid., 1917, p. 230.

by which "the contracting powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of war," the President could not consider any act by a foreign power, short of such declaration or ultimatum, as a justification for recognition of war on his own responsibility. The commencement of war implies not only "acts of war" but also the intention to make war.20 Thus where acts of violence or reprisal alone are in question, Congress is the only authority that can put the country in a state of war, though the President may take defensive measures, and doubtless with President Jefferson's message of 1801 indicated.

211. The Power to Declare War.

a wider scope than

Where no war exists in fact, Congress is the only authority in the United States that can declare one, and Congress cannot delegate this power.

"The Constitution," said Senator Stone, of Missouri, "vests the warmaking power alone in the Congress. It is a power that Congress is not at liberty to delegate. Moreover, I am personally unwilling to part with my constitutional responsibility as a Senator to express my judgment upon the issue of war, whenever and however it may be presented." 21 However, this does not mean, as Senator Stone was contending when he made this unimpeachable statement, that Congress cannot delegate power to the President to use force for protective purposes.22 Nor does it mean that the treaty-making power may not create an obligation upon Congress to declare war or to refrain from declaring it under given circumstances.23

212. The Power to Terminate War.

Though war may be begun by one nation, it takes two to end it. The President can make an armistice which suspends or terminates

20 The Ekaterinoslav, The Argun, Takahashi, International Law Applied to the Russo-Japanese War, pp. 573, 761; Cobbett, Leading Cases on International Law, pp. 78.

21 Cong. Rec., 64th Cong., 2d Sess., p. 5895; Corwin, op. cit., p. 153. 22 In the Federal Convention, Aug. 17, 1787, "declare" war was substituted for "make" war on motion of Madison and Gerry so as to "leave the executive the power to repel sudden attacks." Farrand, op. cit., 2: 318. 23 Supra, secs. 37, 59, 151, 173.