Congress has sometimes authorized the use of the navy for police purposes on the high seas, as to enforce neutrality and the suppression of piracy and the slave trade as required by treaty, but the President would seem to have power even in the absence of such acts, though seizures could not be made except of American vessels, pirates, or vessels liable under treaties.43 Forces may also be displayed on land frontiers by authority of the President as a defensive measure. An illustration is furnished by the mobilization on the Mexican border in 1914." 216. Occupation and Administration of Territory. The President doubtless has power to order the occupation of foreign territory to defend the territory of the United States against an "instant and overwhelming" menace.45 Thus the Amelia Island pirates were destroyed in 1817 and General Pershing's expedition was sent into Mexico in pursuit of Villa in 1916.4 An 'instant and overwhelming" menace to American citizens abroad would give similar justification. The bombardment of Greytown, Nicaragua, in 1852 and the dispatch of troops to Peking in 1901 are illustrations. The President may similarly dispatch troops in fulfilment of treaty guarantees. Thus several Presidents dispatched troops to Panama in pursuance of the guarantee treaty of 1846 and President Roosevelt sent troops to Cuba in 1906 in pursuance of the treaty of 1903.48 Where foreign territory is occupied in order to bring pressure upon a foreign government, the action is very likely to lead to war and an authorizing resolution of Congress would seem necessary. However, such occupations have occurred without express authorization, as for example President Taft's dispatch of troops to Nicaragua and San Domingo, and President Wilson's dispatch of troops to 43 Supra, secs. 125, 126, 151. 44 Am. Year Book, 1914, p. 303. 45 The legitimacy of self-help in the presence of a necessity of selfdefense, instant, overwhelming and leaving no choice of means and no moment for deliberation" was recognized in the Caroline controversy of 1840, Moore, Digest, 2: 412. 46 For other instances see Moore, 2: 402-408. 47 Ibid., 2: 400-402, 414-418; 5: 476–493. 48 Supra, sec. 145, Taft, op. cit., p. 87. San Domingo, Haiti, and Vera Cruz, Mexico.49 In such cases ratifying resolutions have frequently been passed after the act, or treaties have been made with the occupied state.50 Occupation of enemy territory is, of course, a legitimate method of warfare, and a declaration of war, ex propria vigore, authorizes the President to both occupy and militarily govern enemy territory, although it does not authorize him to annex it.51 217. Capture and Destruction of Foreign Military Forces. The dispatch of military or naval forces to capture or destroy the forces of a foreign government would seem to bear such a close resemblance to war that it could hardly be authorized by the President alone. However, as we have seen in the case of the Tripolitan "war" of 1801, President Jefferson took such action, which was subsequently ratified by Congress. President Polk did the same in the Mexican war, though according to his theory the battles of Palo Alto and Resaca de la Palma were fought on United States territory in repelling invasion. Commodore Perry seems to have been authorized to use force to open Japan in 1852 and the Wyoming had similar authority to aid in the opening of the Straits of Shiminoseki, Japan, in 1864.52 In fact in most cases of display of force, undoubtedly an ultimate use of force was authorized. Naval officers have often been sent on diplomatic missions by authority of the President alone, to semi-civilized states, with the evident intention that force should not only be displayed but used if necessary.53 Use of military force against foreign powers has often been authorized by Congress without declaration of war. This was true of resolutions relating to France in 1798, to Tripoli in 1801, 49 Corwin, op. cit., p. 162, supra, sec. 207. 50 Thus a ratifying resolution was passed after the Vera Cruz incident of 1914, and a treaty authorizing the exercise of a police power by the United States was made with Haiti after the intervention had begun. 51 Cross v. Harrison, 16 How. 164; Santiago v. Nogueras, 214 U. S. 260; Fleming v. Page, 9 How. 603. 52 Moore, Digest, 7: 112-118. 53 Infra, sec. 239. See also Paullin, Diplomatic Negotiations of American Naval Officers, Baltimore, 1912. to Algiers in 1816, to Paraguay in the Water Witch incident of 1858, to Venezuela in 1890.54 A declaration or recognition of war of course automatically gives full power to the President to authorize an attack upon the military forces of the enemy. 218. Seizure and Destruction of Private Property. Congress is expressly given power to "grant letters of marque and reprisal, and make rules concerning captures on land and water." 55 The President has no power to direct the capture of private property without express authorization of statute, treaty, or international law. Congress may authorize the grant of letters of marque and reprisal in time of peace, but has never done so." During the war of 1812 privateering commissions were issued and in the Civil War they were authorized but not issued. Privateering is prohibited by the Declaration of Paris of 1856, and though the United States has never acceded, yet it has not resorted to the practice in subsequent wars. Congress may authorize naval forces to make reprisal upon private property at sea in time of peace. Thus President Jackson asked Congress to authorize him to make reprisals against French vessels in view of the non-execution of the claims treaty of 1831:58 57 "The laws of nations," said President Jackson, "provide a remedy for such occasions. It is a well settled principle of the international code that where one nation owes another a liquidated debt, which it refuses or neglects to pay, the aggrieved party may seize on the property belonging to the other, its citizens or subjects, sufficient to pay the debt, without giving just cause of war. This remedy has been repeatedly resorted to, and recently by France herself towards Portugal, under circumstances less unquestionable." Clay, in his report from the Senate Committee on Foreign Relations, "Reprisals do not of themselves produce a state of public war but they are not unfrequently the immediate precursor of it. . . . The authority 54 Moore, Digest, 7: 109-112. 55 U. S. Constitution, I, sec. 8, cl. 11. 56 Mr. Sanford to Mr. Cass, Aug. 16, 1857, Moore, Digest, 7: 122. 57 Ibid., 7: 544, 558, 558. 58 Ibid., 7: 124. 59 Ibid., 7: 126–127. to grant letters of marque and reprisal being specially delegated to Congress, Congress ought to retain to itself the right of judging of the time when they are proposed to be actually issued. The committee are not satisfied that Congress can, constitutionally, delegate this right." Congress has, in fact, never authorized reprisals upon private property in time of peace, though reprisals and military expeditions against foreign territory both with and without congressional authorization have often resulted in the destruction of private property, as did the Greytown, Nicaragua, bombardment of 1852, and the Vera Cruz occupation of 1914. By a declaration of war, Congress authorizes general reprisals against enemy property at sea so far as permitted by international law. Treaties may provide for making captures of private property, as in suppressing the slave trade and seal poaching. The President has power to employ the navy and revenue cutter service to enforce treaties without other authority, though Congress has usually given. him express authority.0 International law authorizes the capture on the high seas of pirates at all times and of enemy and certain neutral private prop erty in time of war. The President's powers in this regard derive from international law and are limited by it. He can authorize the capture of enemy and neutral private property at sea only as permitted by that law, which is enforced by prize courts before which captures must be brought for condemnation. Before the courts, an order of the President contrary to international law, unless authorized by express statute, will not justify the captor."1 Private property on land, even of the enemy, is exempt from seizure under international law, except when "military necessity" permits its requisition, sequestration, contribution, or destruction." The President, it has been held, cannot authorize a general confiscation of enemy property. Thus, said the Supreme Court in Mitchell v. Harmony: 63 60 Supra, secs. 118, 119, 125, 126. 61 Little v. Barreme, 2 Cranch 170. 62 IV Hague Conventions, 1907, Arts. 46–56. "There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner; but the officer is not a trespasser. "But we are clearly of opinion, that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified." Congress, however, under its power to make rules concerning capture on land and water may authorize seizures contrary to international law. In Brown v. United States, during the War of 1812, Chief Justice Marshall refused to permit the confiscation of British property on land since Congress had not expressly acted."5 "Does that declaration (of war), by its own operation, so vest the property of the enemy in the government, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the sovereign power? The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. . . . It appears to the court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war." In view of these decisions, and considering the Emancipation Proclamation of January 1, 1863, as a general confiscation of a particular type of enemy property by proclamation of the President, there is serious ground for doubting the constitutionality of that proclamation. The doubt, however, was very soon, removed 66 64 Miller v. U. S., 11 Wall. 268; Willoughby, op. cit., p. 1220. " 65 Brown v. U. S., 8 Cranch 110 (1814). It is doubtful whether international law at present confers a right of confiscation" even upon the sovereign authority. Supra, note 62. Richardson, Messages, 6: 85, 96, 157; Burgess, Civil War and Reconstruction, 2: 117; Rhodes, History of U. S., 4: 70, supra, sec. 47, note 59. |