began the work of dismantling its plant and made arrangements for the removal thereof, which was accomplished on or about the 30th of September, 1918, and on October 1, 1918, it vacated the premises theretofore occupied by it in the Bush Terminal Building and gave notice of such vacation to the defendant. The plaintiff's plant consisted largely of heavy machinery and fixtures which in their installation were necessarily bolted or otherwise fastened to the building, and the dismantling and removal thereof entailed a very considerable expense upon the plaintiff, in addition to which the dismantling and reassembling affected detrimentally for a time the efficiency of the machinery. IX. The plaintiff acted promptly and as expeditiously as possible in respect to order No. N-3255 for the purpose of facilitating the vacating of the premises occupied by it and their surrender to the United States as soon as possible. Said premises formerly occupied by the plaintiff in the Bush Terminal Building were never in fact occupied by the United States. X. By reason of the dismantling of plaintiff's plant in the Bush Terminal Building and its removal and reassembling in its new location, leased as aforesaid, the plaintiff was put to an expense of $6,724.44, representing the expense incurred for the purposes stated and an expense for new motors procured in lieu of those formerly in use, made necessary by the fact that the electric current at the new building was different from that furnished at the old. XI. The plaintiff paid no rent to the Bush Terminal Buildings Co. for the quarters occupied by it in the Bush Terminal Building for any time subsequent to the month of September, 1918, but for the months of October and November, 1918, the Bush Terminal Buildings Co. demanded of the plaintiff the sum of $1,121.26, for which, upon refusal of the plaintiff to pay, it has commenced suit. XII. Plaintiff suffered a loss of $1,826.67, on account of certain overhead expenses during the period when by reason of such removal it was prevented from carrying on its regular business. XIII. The reasonable rental value of the premises occupied by the plaintiff in the Bush Terminal Building, for which under its lease plaintiff was paying $0.35 per annum per square foot, was $0.50 per annum per square foot. XIV. After the plaintiff was notified of the recision of Navy Order No. N-3255, it applied to Mr. Dessart for a release from the contract entered into by it with him on August 29, 1918, but release was refused except upon the payment of the sum of $8,000, which plaintiff declined to pay. CONCLUSION Upon the facts found the court concludes and reports that the plaintiff has no claim either legal or equitable, in a juridical sense, against the United States, and that any compensation to it because of the facts recited rests in the discretion of Congress. Filed May 11, 1925, and amended April 4, 1927. A true copy: Test this December 20, 1927. [SEAL.] No. 39 EXECUTIVE ASSUMPTION OF THE WAR-MAKING POWER ARTICLE FROM THE NATIONAL UNIVERSITY LAW PRESENTED BY MR. BLAINE JANUARY 9, 1928.-Ordered to be printed UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON EXECUTIVE ASSUMPTION OF THE WAR-MAKING POWER By ALBERT H. PUTNEY, Professor of Constitutional Law, National University Law School One of the most remarkable chapters of the constitutional history of the United States has been the gradual passing of the war-making power, at least in so far as war can be made with the military and naval forces already authorized, from the hands of the legislative department of the Government into those of the executive. One of the most important questions which to-day confronts the citizens of the United States, one which must affect their future to an extent which is only just beginning to be appreciated, is whether such transfer of power must be accepted as permanent. War is defined as the condition where a State attempts to maintain its rights either actual or alleged by force. War is declared whenever a State employs force against another State except in self-defense. The question as to where the power to declare war (in the broad sense in which the term is used in international law) resides was the last of the great constitutional questions to arise in the United States. For several generations, however much men might dispute upon many questions of constitutional construction, here was one question upon which there was a practically universal agreement. As late as the close of the nineteenth century no one could have foreseen the condition which to-day exists. From the first inauguration of President Washington down to the third year of the twentieth century the Congress of the United States maintained the exclusiveness of its rights to declare war, or to authorize offensive warlike acts even though limited in their scope; and the validity of the claims of Congress were recognized by the acquiescence of the executive department and frequently by an express acknowledgment in some presidential message. During the twentieth century, however, there has been a gradual increasing encroachment upon this power by the executive department, until to-day it, in effect, claims the right to make war, or, what under the Constitution amounts to the same thing, to authorize warlike acts abroad, without the consent of Congress, to the extent to which such warfare can be carried on by the military forces under the command of the President. The vital question involved is whether the old or the new method of exercising the war-making power is the one authorized under the United States Constitution. In determining this question recourse must be had to the debates in the Federal Constitutional Convention, to the decisions of the Supreme Court of the United States, and to the past practice of the legislative and executive departments. The Constitution of the United States (Art. I, sec. 8, clause 2) provides, that: "The Congress shall have power declare war." * * to The Supreme Court of the United States has declared, in the most unequivocal language, that this power of Congress is an exclusive one: By the Constitution, Congress alone has the power to declare a national or foreign war * The Constitution confers on the President the whole executive power He is Commander in Chief of the Army and Navy * * He has no power to initiate or declare a war either against a foreign nation or a domestic state.1 of the United States The Supreme Court of the United States has also given the broadest possible interpretation to the meaning of the term "war," holding it to embrace all cases where a country attempts to maintain its rights by the employment of force: The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied, nor in the course of the argument has it been denied, that Congress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed. It may, I believe, be safely laid down that every contention by force between two nations, in external matters under the authority of their respective governments, is not only war, but public war. These early decisions of the Supreme Court have never been overruled, or even modified, by that court. In its definition of the scope to be given the term "war" the Supreme Court was merely asserting a well-recognized principle of international law. Armed intervention consists in threatened or actual force, employed or to be employed by one State in regulating or determining the conduct or affairs of another. Such an employment of force is virtually a war, and must be justified or condemned upon the same general principle as other wars. It is, of course, needless to say that other countries have the same right and power to declare war against the United States that we have against them, and therefore our country may be forced into a war without a formal declaration by Congress. Even in such cases it is customary for Congress to make a formal declaration that a state of war exists. The Spanish Government on April 21, recognized the United States resolution of April 20, 1898, demanding "that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters," and directing and empowering the President "to use the entire land and naval forces of the United States, and to call into actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into effect" as an evident declaration of war." Congress by its act of April 25 declared that war had existed since April 21.5 The granting of the war-making power to Congress by the provisions of the Constitution of the United States was one of the greatest innovations in the direction of greater human liberty and justice made by that document. It presented a striking contrast 1 The Prize Cases, 2 Black. 635, 668; 17 L. Ed. 459, 477. |