CHAPTER XVI.

THE POWER TO MAKE POLITICAL DECISIONS IN FOREIGN AFFAIRS:

WAR AND THE USE OF FORCE.

A. The Power to Make War.

206. The Power to Make War.

Congress is given power "to declare war, grant letters of marque and reprisal and make rules concerning captures on land and water," and "to provide for calling forth the militia to execute the laws of the union, suppress insurrection and repel invasions." "The President shall be commander-in-chief of the army and navy of the United States and of the militia of the several states, when called into the actual service of the United States" and "he shall take care that the laws be faithfully executed." 1

War has been defined as "the relation which exists between states when there may lawfully be a properly conducted contest of armed public forces."2 It is thus to be distinguished from the use of military force. Battles may be fought, vessels captured and commerce embargoed without war, and on the other hand war may exist without a gun fired or a vessel captured or a trade route disturbed. The Supreme Court has distinguished the recog99 from war in the legal nition of war in the material sense sense.' We may thus regard war as a definite period of time within which the abnormal international law of war and neutrality has superseded normal international law. What authority in the United States has power to begin and end this period of time?

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207. The Causation of War.

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We have noticed the distinction between "the existence of a constitutional power and the existence of an ability to effect certain

1 U. S. Const., I, sec. 8, cl. 11, 15; II, sec. 2, cl. 1, sec. 3.

2 Wilson and Tucker, op. cit., p. 233. See also Grotius, De Jure Belli ac Pacis, liv. I, c. 1, par. 2; Vattel, Droit des gens, liv. III, c. 1, sec. I.

3 The Three Friends, 166 U. S. 1, supra, sec. 192, and Nelson, J., dissent in the Prize Cases, 2 Black 635, 690.

results." Now the ultimate causation of war may have nothing to do with the war powers of organs of the government. An act of a state legislature discriminating against aliens or a judicial decision depriving foreign nations of rights under international law may be a casus belli. Yet neither states nor courts have any war powers at all. The President especially is endowed with powers which in their exercise may lead to war.

"The President," says Pomeroy, "cannot declare war; Congress alone possesses this attribute. But the President may, without any possibility of hindrance from the legislature, so conduct the foreign intercourse, the diplomatic negotiations with other governments, as to force a war, as to compel another nation to take the initiative; and that step once taken, the challenge cannot be refused. How easily might the Executive have plunged us into a war with Great Britain by a single dispatch in answer to the affair of the Trent. How easily might he have provoked a condition of active hostilities with France by the form and character of the reclamations made in regard to the occupation of Mexico." 5

But the President's powers go even beyond this. As Commanderin-Chief, he may employ the armed forces in defense of American citizens abroad, as he did in the bombardment of Greytown, the Koszta case and the Boxer rebellion, and thereby commit acts of war, which the government they offend may consider the initiation of a state of war. Thus on April 23, 1914, after the occupation of Vera Cruz by American marines, the Huerta government handed Chargé d'affaires O'Shaughnessy his passports with the comment:® According to international law, the acts of the armed forces of the United States, which I do not care to qualify in this note out of deference to the fact that your honor personally has observed toward the Mexican people and Government a most strictly correct conduct, so far as has been possible to you in your character as the representative of a government with which such serious difficulties as those existing have arisen, must be considered as an initiation of war against Mexico."

Such presidential acts, though perhaps a casus belli, do not necessarily initiate a state of war, as the intention to do so does not exist." If war results it is one recognized or declared by the foreign power, though in the absence of a treaty requiring a formal declaration of it may antedate to the first act of war.

war,

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, 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.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:

12 2 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).