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the general policy of the Government might lead it to take part with either in a controversy with the other, still, if this interference be an act of hostile force, it is not within the constitutional power of the President; and still less is it within the power of any subordinate agent of government, civil or military."

Mr. Webster, Sec. of State, to Mr. Severance, July 14, 1851, MS. Inst.
Hawaii, II. 30; H. Ex. Doc, 48, 53 Cong. 2 sess. 342.

"This proposition, looking to a participation by the United States in the existing hostilities against China, makes it proper to remind your lordship that, under the Constitution of the United States, the executive branch of this Government is not the war-making power. The exercise of that great attribute of sovereignty is vested in Congress, and the President has no authority to order aggressive hostilities to be undertaken.

"Our naval officers have the right-it is their duty, indeed-to employ the forces under their command, not only in self-defense, but for the protection of the persons and property of our citizens when exposed to acts of lawless outrage, and this they have done both in China and elsewhere, and will do again when necessary. But military expeditions into the Chinese territory can not be undertaken without the authority of the National Legislature."

Mr. Cass, Sec. of State, to Lord Napier, Apr. 10, 1857, MS. Notes to Great
Britain, III. 338.

"I deem it my duty once more earnestly to recommend to Congress the passage of a law authorizing the President to employ the naval force at his command for the purpose of protecting the lives and property of Amercan citizens passing in transit across the Panama, Nicaragua, and Tehuantepec routes against sudden and lawless outbreaks and depredations. I shall not repeat the arguments employed in former messages in support of this measure. Suffice it to say that

the lives of many of our people and the security of vast amounts of treasure passing and repassing over one or more of these routes between the Atlantic and Pacific may be deeply involved in the action of Congress on this subject.

"I would also again recommend to Congress that authority be given to the President to employ the naval force to protect American merchant vessels, their crews and cargoes, against violent and lawless seizure and confiscation in the ports of Mexico and the SpanishAmerican states when these countries may be in a disturbed and revolutionary condition. The mere knowledge that such an authority had been conferred, as I have already stated, would of itself in a great · degree prevent the evil. Neither would this require any additional appropriation for the naval service.

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The chief objection urged against the grant of this authority is that Congress by conferring it would violate the Constitution; that it would be a transfer of the war-making, or, strictly speaking, the war-declaring, power to the Executive. If this were well founded, it would, of course, be conclusive. A very brief examination, however, will place this objection at rest.

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"Congress possess the sole and exclusive power under the Constitution' to declare war.' They alone can raise and support armies,' and provide and maintain a navy.' But after Congress shall have declared war and provided the force necessary to carry it on the President, as Commander in Chief of the Army and Navy, can alone employ this force in making war against the enemy. This is the plain language, and history proves that it was the well-known intention of the framers, of the Constitution."

President Buchanan, annual message, Dec. 19, 1859, Richardson's Messages, V. 569.

"The United States believe it to be their duty, and they mean to execute it, to watch over the persons and property of their citizens visiting foreign countries, and to intervene for their protection, when such action is justified by existing circumstances and by the law of nations.'

"In addition to this general declaration, applicable in all countries, there were some peculiar principles asserted, arising out of the condition of Nicaragua and of the transit route from ocean to ocean across its territory. The right of the United States to take care that the public contracts made with our citizens for the construction and use of that route of intercommunication are faithfully observed was explained and maintained, and so far as the legal power of the Executive extends will be enforced, if necessary. . This Government

disavowed both the authority and the disposition to determine the conflicting interests of the various claimants, but it required the Government of Nicaragua to act in good faith toward them. And it also announced, that it would not recognize as valid any declaration of forfeiture, past or to come, unless pronounced in conformity with the provisions of the contract, if there are any, or if there is no provision for that purpose, then, unless there has been a fair and impartial investigation in such a manner as to satisfy the United States that the proceeding has been just, and that the decision ought to be submitted to.

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"You seem to suppose that the defence of the rights of our country or its citizens, and the avowal that their violation will justify the employment of force, commits the Executive in your case to resort to it, and you accordingly call for the application of the armed

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force' of the United States for the protection of your rights in Nicaragua.

"The employment of the national force, under such circumstances, for the invasion of Nicaragua is an act of war, and however just it may be, it is a measure which Congress alone possesses the constitutional power to adopt. The President has in three separate messages brought to the attention of that body this subject of the employment of force for the protection of our citizens, and he has stated with equal perspicuity and strength the reasons which imperatively call for the adoption of this policy in various countries upon this contiIn his message to the Senate and House of Representatives of February 18, 1859, the President remarks, referring to a preceding message, that the executive government of this country in its intercourse with other nations is limited to the employment of diplomacy alone, when this fails it can proceed no farther.' But these appeals to Congress have produced no result.

"Cases may occur where the circumstances may justify the employment of our naval or military forces, without special legislative provision, for the protection of our citizens from outrage, but it is not necessary to examine the extent or limit of this right, because the principle is inapplicable in your case, where you demand a forcible interposition with the Nicaraguan Government, in order to give effect to the contract to which you refer.

"In the first place, if the President were empowered to use force, before its application some injurious act must have been consummated, and it would also be necessary that all the facts should be investigated in order to ascertain the justice of armed interference. The principles are laid down in the despatch to General Lamar, but their application depends upon the proceedings of the parties."

Mr. Cass, Sec. of State, to Mr. Body, Sec. Am. Atlantic & Pacific Ship
Canal Co., March 3, 1860, 52 MS. Dom. Let. 11.

For the instruction to Gen. Lamar, June 3, 1858, see MS. Inst. Am. States,
XV. 312, and supra.

As to the action of the President in directing the Navy to protect Santo Domingo during negotiations for annexation, see supra, § 85. Mr. Harlan, in a speech in the Senate, March 29, 1871, defending the President against the criticisms of Mr. Schurz, referred to our Indian wars, to the sending of troops into Utah for the purpose of enforcing the law, to the sending of military forces to the northern boundary during the dispute with Great Britain, to the bombardment of Greytown, to the bombardment of Japanese forts (by the combined navies of the United States, France, and England), and to acts of war committed by foreign fleets within the waters of China. A distinction was drawn in the speeches in defense of the President between mak

ing war and merely committing acts of war in the sense of acts involving the employment of force.

Congressional Globe, 42 Cong. 1 sess. (1871). pt. 1, pp. 252,250, 294, 305, et seq.; also, pt. 2 and appendix, pp. 51, 62, et seq.

With reference to a request made to an American naval officer to recover by force a quantity of silver belonging to a citizen of the United States, which had been seized by an officer of the Mexican Government in that country, the Department of State said: “If the latter [the American naval officer] had himself seized the bullion by force, as was expected, the Mexican Government would probably have regarded this as an act of hostility for which this Government would have been required to make amends. The President is not authorized to order or approve an act of war in a country with which we are at peace, except in self-defense. This is a peculiarity of our form of government, which at times may be inconvenient, but which is believed to have proved and will in future be found in the long run to be wise and essential to the public welfare."

Mr. Hunter, Act. Sec. of State, to Mr. Turner, consul at La Paz, Mexico,
No. 56, Nov. 7, 1876, 84 MS. Desp. to Consuls. 127.

See, also, Mr. Hunter, Second Assist. Sec. of State, to Mr. Wilson, consul
at Matamoras, No. 149, Nov. 18, 1876, 84 MS. Desp. to Consuls, 207.
See, further, Mr. Fish, Sec. of State, to Mr. Williamson, min. to Costa
Rica, No. 255, Nov. 3, 1876, MS. Inst. Costa Rica, XVII. 303.

"By the Constitution, Congress alone has the power to declare a national or foreign war. It can not declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is 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. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.

"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 H. Doc. 551-vol 7-12

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.'

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Grier, J. The Prize Cases (1862), 2 Black, 668.

IV. COMMENCEMENT OF WAR.

1. DECLARATION.

§ 1106.

"Unfortunately the anticipations of security for their vessels and citizens created by the treaty of 1796 between the United States and Tripoli were by no means realized. On the contrary, the flag of this country on the high seas was still disregarded by Tripolitan cruisers, which captured its vessels and made prisoners and slaves of those found on board of them. The patience of Congress was at length exhausted by such outrages, and the act of the 2nd of February 1802 was passed for the protection of commerce and seamen of the United States against the Tripolitan cruisers.' This was virtually a declaration of war against Tripoli. . . . The manner in which the war was prosecuted by this Government and its result, are historical facts too notorious to be expatiated upon. Peace was restored by the treaty of the 4th of June 1805, between the United States and the Bashaw Bey and subjects of Tripoli."

Mr. Fish, Sec. of State, to Aristarchi Bey, Turkish min., Sept. 18, 1876,
MS. Notes to Turkey, I. 170.

President Madison, in a special message to Congress, June 1, 1812, after enumerating the grievances against Great Britain, said: "We behold, in fine, on the side of Great Britain, a state of war against the United States; and on the side of the United States, a state of peace toward Great Britain." The message ended without expressly recommending any specific action. It was received in each House with closed doors. On June 3, Calhoun, in a report from the House Committee on Foreign Relations, recommended "an immediate appeal to arms." The House passed a bill declaring war, and on the 5th of June sent it to the Senate with a request that it be considered confidentially. The Senate on June 17 passed the bill with amendOn June 18 the House concurred, and the bill became a law

by the signature of the President.

Message of June 1, 1812, Am. State Papers, For. Rel. III. 405, 407; Cal-
houn's report of June 3, id. 567; act of June 18, 1812, 2 Stat. 755.

For correspondence in London prior to the war, see Am. State Papers, For.
Rel. III. 409.

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