THE SHARE OF THE PRESIDENT OF THE UNITED STATES

IN A DECLARATION OF WAR

A SUBJECT of warm debate in the convention which framed the Constitution of the United States was where the power of making or declaring war should be vested.

The committee of detail reported in favor of giving Congress power "to make war." Pinkney opposed this on the floor, preferring to bestow it on the Senate. That this was also the view of Hamilton appears in the draft of a constitution which he gave to Madison, towards the close of the convention. In the debate on the report, Pinkney urged that it "would be singular for one authority to make war, and another, peace." Butler, who followed him, thought the President was the proper depositary. It was then moved to make the clause read "to declare war," instead of "to make war." Gerry said that he had "never expected to hear in a republic a motion to empower the executive alone to declare war." Mason thought that neither the executive nor the Senate could safely be intrusted with the power of war; and finally the word declare was substituted for make by the large majority of States.2

As a declaration of war takes thus the shape of a special Act of Congress, it requires, like any other bill, order, vote, or resolution, the approval of the President. It must be then the product of an agreement of mind between three depositaries of governmental power. The two Houses of Congress first successively agree, and the President then manifests his assent.

It will be remembered that a formal declaration of war, until recently, was not, as a matter of international law, necessary or indeed usual. Most wars during the eighteenth and nineteenth centuries were fought 1 Farrand, Records of the Federal Convention, III, 619, 622. 2 Ibid., II, 143, 168, 182; Elliot, Debates, V, 439.

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under the rule of a word and a blow, with the blow coming first and the word possibly left unsaid.

The United States, since it adopted its present Constitution, has been engaged in eight foreign wars.

The first, coming at the close of the eighteenth century (1798-1800), was a limited or imperfect war, as distinguished from a general war. Congress authorized acts of hostility on the sea against vessels of France by way of reprisal, without any formal declaration of war. "Such a declaration by Congress might have constituted a perfect state of war, which was not intended by the government." The reasons of the action taken by Congress were stated; namely, "depredations on the commerce of the United States," and captures of American vessels "in violation of the law of nations and treaties between the United States and the French nation."

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The second war was with Tripoli (1800-1805). She declared war against us. We recognized a state of war as existing, but acted only on the defensive, through a naval expedition, and made, ourselves, no formal declaration of war.

The third war was against Algiers, and our action (Act of March 3, 1815) was substantially the same as that in the case of the Tripolitan War.

The fourth war was that of 1812 with Great Britain. Congress then made a declaration of the existence of war between the two countries. No statement was made as to its causes or objects (Act of June 18, 1812).

The fifth was the Mexican War. Here the President informed Congress that Mexico had invaded the United States and that a state of war existed. Congress responded by an Act (of May 13, 1846) reciting that war existed by the act of Mexico and providing for the support of hostilities. A motion in the House of Representatives for a declaration of war was rejected by a large majority. The House of Representatives in the next Congress, on January 31, 1848, passed a resolution "that the war was unnecessarily and unconstitutionally begun

3 Woolsey, Introduction to the Study of International Law, sec. 115; Calvo, Le Droit International, IV, secs. 1903 et seq.; Takahashi, International Law applied to the Russo-Japanese War, Chap. 1, sec. 1; this JOURNAL, 2: 57.

Bas v. Tingy, 4 Dallas, 37: see Talbot v. Seaman, 1 Cranch, 1.

by the President of the United States." John Adams wrote of it in 1815:5

Mr. Madison's administration has proved great points, long disputed in Europe and America.

1. He has proved that an administration under our present Constitution can declare war.

2. That it can make peace.

The sixth of our foreign wars was that with Spain. Here a special Act of Congress (of April 20, 1898) presented an ultimatum, and was in effect a declaration of war, unless the demand stated should be immediately complied with. Spain did not comply with it, but withdrew her minister at Washington, and on April 25, 1898, a declaration of war was recommended by the President, adopted by Congress, and approved by him. This enacted "that war be, and the same is hereby declared to exist, and 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."

It will be observed that, in this formal declaration, no causes of grievance against Spain are stated.

Of our six foreign wars, then, preceding those now being waged with Germany and Austria-Hungary, only one, and that the first, was prosecuted under a declaration of war setting forth the causes leading up to it.

An important advance in regulating the relations of nations to each other was made in 1907 by the Convention as to the mode of opening hostilities, which was adopted ad referendum, by the second Hague Conference.

In this (Article I) the contracting Powers recognized that hostilities between them should not commence without a preliminary and unequivocal notice, which should have either the form of a declaration of war, stating the reasons for it (motivée), or that of an ultimatum, with a declaration of war in case of the rejection of the ultimatum. One of the leading participants in the conference has expressed himself thus in regard to the provision for a statement of the reasons for declaring war:

Life and Works, X, 167.

It will be noted that the declaration and the ultimatum require a statement of the reason of the war, and it is to be hoped that the difficulty of a perfect justification may exercise a restraining influence upon prospective belligerents. . . . It must be admitted that the convention is very modest, for it leaves the Powers free to declare war at their pleasure, provided only that the pretext be capable of formulation.

The United States ratified this convention in 1909; and Article I was to take effect in case of war between two or more of the contracting Powers. Germany having also ratified it during the same year, when the President last spring became satisfied that the United States should enter into war with that empire, or that war substantially existed between them already, he called a special session of Congress to which he communicated his views on April 3, 1917.

As causes of war he mentioned these:

1. Germany's announcement that from and after February 1, 1917, "it was its purpose to put aside all restraints of law or of humanity and use its submarines to sink every vessel that sought to approach either the ports of Great Britain and Ireland or the western coasts of Europe or any of the ports controlled by the enemies of Germany within the Mediterranean."

2. Germany's execution of that purpose, involving such a submarine warfare against commerce as is a "warfare against mankind" and all nations, in the course of which American ships have been sunk and American lives taken.

3. The vindication of human right, of which the United States "is only a single champion."

4. Germany's denial of "the right of neutrals to use arms at all within the areas of the sea which it has proscribed, even in the defense of rights which no modern publicist has ever before questioned their right to defend."

5. Her intimation that the armed guards carried by American merchantmen would be treated as pirates.

6. The menace to the peace of the world and the freedom of its peoples flowing from "the existence of autocratic governments, backed by organized force which is controlled wholly by their will, not by the will of their people."

• Scott, The Hague Peace Conferences, I, 519, 522.

7. The impossibility of maintaining "a steadfast concert for peace," except by a partnership of democratic nations, as "no autocratic government could be trusted to keep faith within it, or observe its covenants." 8. The sending by Germany of spies and intriguers into the United States.

9. Our conviction "that in such a government, following such methods, we can never have a friend; and that in the presence of its organized power, always lying in wait to accomplish we know not what purpose, can be no assured security for the democratic governments of the world."

10. Our resolution to fight "for the ultimate peace of the world and for the liberation of its peoples, the German peoples included; for the rights of nations, great and small, and the privilege of men everywhere to choose their way of life and of obedience."

11. The duty of the United States, as "one of the champions of the rights of mankind," to make these "as secure as the faith and the freedom of nations can make them," and to make the world "safe for democracy."

12. That Germany is acting through "an irresponsible government which has thrown aside all considerations of humanity and of right, and is running amuck."

13. That the United States will "fight for the things which we have always carried nearest our hearts - for democracy, for the right of those who submit to authority to have a voice in their own governments, for the rights and liberties of small nations, for a universal dominion of right by such a concert of free peoples as shall bring peace and safety to all nations and make the world itself at last free."

To this message Congress promptly responded by the following resolution of April 6, 1917:

Joint Resolution Declaring that a state of war exists between the Imperial German Government and the Government and people of the United States and making provision to prosecute the same.

Whereas the Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America; therefore be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the state of war between