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204. Congressional Declarations of General Policy.

Congressional resolutions on foreign relations have often been of a more general character, avoiding reference to specific incidents, though doubtless suggested by such incidents. Thus a Senate resolution of 1858 asserted that American vessels on the high seas are not subject to visit and search in time of peace,62 a law of 1868 asserted the right of expatriation to be "a natural and inherent right of all people" and resolutions at various times have suggested the negotiation of arbitration treaties.64 A section of the naval appropriation act of 1916 declared it to be: 65

"The policy of the United States to adjust and settle its international disputes through mediation or arbitration, to the end that war may be honorably avoided. It looks with apprehension and disfavor upon a general increase of armament throughout the world, but it realizes that no single nation can disarm, and that without common agreement upon the subject every considerable power must maintain a relative standing in military strength."

Negotiation of reciprocal agreements with Canada on the use of boundary waters has also been suggested." A Senate resolution of 1912, though suggested by the Magdalena Bay incident, was expressed as a general policy related to the Monroe Doctrine.67 Treaty reservations have sometimes offered the Senate an opportunity 62 Moore, Digest, 2: 946.

63 Rev. Stat., sec. 1999; Comp. Stat., sec. 3955.

64 See A League of Nations (World Peace Foundation), I, No. 1 (Oct., 1917).

65 Act Aug. 29, 1916, 39 Stat. 618; Comp. Stat. 7686b. In the Spring of 1921 President Harding is reported to have opposed the Borah amendment on disarmament (supra, sec. 56). In his message to Congress of April 12, 1921, he said with reference to the proposed peace resolution: "It would be unwise to undertake to make a statement of future policy with respect to European affairs in such a declaration of a state of peace (with Germany). In correcting the failure of the Executive, in negotiating the most important treaty in the history of the nation, to recognize the constitutional powers of the Senate, we would go to the other extreme, equally objectionable, if Congress should assume the functions of the Executive. (Cong. Rec., 61: 95. See also remarks of Senator Hitchcock, April 29, 1921, ibid., 61: 745.)

66 Act June 13, 1902, 32 Stat. 373, Comp. Stat. 9984; Act June 29, 1906, 34 Stat. 628, Comp. Stat. 9989d.

67 Cong. Rec., Aug. 2, 1912, 48: 10046, A League of Nations, I, No. 5, p. 298 (June, 1918); Hart, The Monroe Doctrine, p. 235.

for the expression of general policies. The Hague Conventions on the Pacific settlement of international disputes were signed with a reservation: 68

"Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment of the United States of America of its traditional attitude toward purely American questions."

The Senate appended a similar reservation to the Algeciras Convention of 1906.69

205. Power of President to Determine Foreign Policy.

It is believed that resolutions expressing general policies or principles on most subjects connected with foreign relations may be constitutionally passed by Congress, and may furnish useful guides to the President. Congressional expressions of opinion on particular issues, however, and attempts to direct the President thereon encroach upon the executive field and may embarrass the President's action. In practice foreign policy has developed by executive precedent, practice and declaration. The farewell address of Washington and the Monroe Doctrine, both purely executive in origin and future interpretation, have been the most important expressions of foreign policy.70 In recent years, however, Congress and especially the Senate have tended to express permanent policies more freely, by resolution. Though the Monroe Doctrine was stated in 1823 and on several occasions efforts were made to gain for it legislative endorsement, the first statement referring to it, accepted by either House of Congress, appears to be the reservation to the Hague Convention of 1899 accepted by the Senate, and on this occasion the doctrine was not referred to by name.

68 Malloy, Treaties, etc., pp. 2032, 2047.

69 Ibid., p. 2183.

70 Richardson, Messages, 1: 221-224; 2: 209, 218-219; Moore, Digest, 6: 370, 401; see also Taft, op. cit., p. 113.

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."

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ident 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 recognition of "war in the material sense" from "war in the legal 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? 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.

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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 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:

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"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, are not making war in the strict sense, as the intention to initiate that condition does not exist. If war results it is one recognized or declared by the foreign power.

4 Supra, sec. 191.

5 Pomeroy, Constitutional Law, p. 65.

• Am. Year Book, 1914, p. 235.

7 Supra, sec. 210, note 20.

PROC. AMER. PHIL. SOC., VOL. LX., Y, MARCH 13, 1922.

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:9

"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 measure. 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 of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our com

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. 99 Stat. 9.

10 Infra, notes 18, 19.

11 Richardson, Messages, 1: 326.

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