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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.17 Three days later, on April 25, Congress passed a resolution declaring: 18

"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."

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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." 19

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 a wider scope than President Jefferson's message of 1801 indicated.

211. The Power to Declare War.

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.2

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. 28 Supra, secs. 37, 59, 151, 173.

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

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"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.

2014 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

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'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 1787.1

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, 1921,82a 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.

80 Supra, sec. 210.

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

32 The Protector, 12 Wall. 700.

82a Treaty Series No. 658.

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