t - : HFI flW &.i NOT A PERIODICAL THE UNIVERSITY OF ILLINOIS LIBRARY V.9 cop. 2. NOT A PERIODICAL The person charging this material is re- sponsible for its return on or before the Latest Date stamped below. Theft, mutilation, and underlining of books are reasons for disciplinary action and may result in dismissal from the University. University of Illinois Library NOV24 DEC 9 1 SEP 2 972 972 92 19Q1 L161 O-1096 UNIVERSITY OF ILLINOIS STUDIES IN THE SOCIAL SCIENCES VOL. IX MARCH-JUNE, 1920 Nos. 1 and 2 BOARD OP EDITORS : ERNEST L. BOGART JOHN A. FAIRLIE ALBERT H. LYBYER PUBLISHED BY THE UNIVERSITY OP ILLINOIS UNDER THE AUSPICES OF THE GRADUATE SCHOOL URBANA, ILLINOIS COPYRIGHT, 1921 BY THE UNIVERSITY OF ILLINOIS CS--txOfc"TA/U-eo War Powers of the Executive in the United States BY CLARENCE A. BERDAHL, PH. D. Instructor in Political Science University of Illinois -1104 CONTENTS PAGE PREFACE 7 CHAPTER I. INTRODUCTION 11 General conceptions of executive power 11 General conceptions of the war powers 15 Source of the President 's war powers 20 Forms of presidential action 20 Delegation of presidential powers 21 I. POWERS RELATING TO THE BEGINNING OF WAR CHAPTER II. CONTROL OP FOREIGN RELATIONS 25 Initiation and formulation of foreign policy 26 Power of recognition 31 Power to sever diplomatic relations 35 Executive agreements 37 CHAPTER III. MILITARY MEASURES SHORT OF WAR 43 Employment of armed forces in aid of the civil power 43 Protection of ' ' inchoate ' ' interests of the United States 45 Protection of American rights and interests abroad 49 Intervention and police supervision 53 CHAPTER IV. POWER OF DEFENSE 58 Power to begin a ' ' defensive ' ' war 58 Defense against attack or invasion 62 Punitive expeditions 65 Arming of merchant vessels . 67 Recognition of ' ' existing" state of war 70 CHAPTER V. POWERS WITH REGARD TO A DECLARATION OF WAR 78 Debates in Convention of 1787 78 Importance of power of recommendation 80 Declaration of causes and purposes 94 Power of veto 95 Notification of state of war 96 II. MILITARY POWERS IN TIME OF WAR CHAPTER VI. POWER TO RAISE AND ORGANIZE THE ARMED FORCES . . . 101 Nature of the President 's power 101 Powers under voluntary enlistment 101 Powers under conscription 105 Exercise of power without authority 108 Powers with regard to organization Ill CHAPTER VII. POWERS OF COMMAND 115 Nature of powers as commander-in-chief 115 Power of personal command 118 General direction of military operations 121 Appointment and dismissal of officers * 126 Powers with regard to the militia 130 CHAPTER VIII. POWERS OF MILITARY JURISDICTION 138 Courts-martial 138 Military commissions 143 Power of pardon 148 CHAPTER IX. POWERS OF MILITARY GOVERNMENT 152 Definition and authority to establish 152 Power to determine its character 154 Functions under military government 157 III. CIVIL POWEES IN TIME OF WAS CHAPTER X. CONTROL OF ADMINISTRATION 167 Military administrative agencies 167 Special war administrative services 170 Proposals for coordination 172 Overman Act * 174 CHAPTER XI. POWERS OF POLICE CONTROL 182 The war power and the Bill of Eights 182 Police control of aliens 184 Suspension of the writ of habeas corpus 188 Power of censorship 192 CHAPTER XII. POWERS OF ECONOMIC CONTROL 203 Control of food and fuel 204 Control of trade and industry 208 Control of private property 212 Control of transportation and communication 214 IV. POWEES EELATING TO THE TEEMINATION OF WAE CHAPTER XIII. POWER OF TERMINATING WAR IN THE UNITED STATES 223 Methods of terminating war 223 Eecent opinions and actions in the United States 224 Debates in Convention of 1787 228 Official declarations by Congress k:30 CHAPTER XIV. POWERS WITH EEGARD TO A TREATY OF PEACE 232 Armistice and preliminary protocol 232 Appointment of peace commissioners 237 Control of peace negotiations 242 Final ratification 246 CHAPTER XV. POWERS WITH EEGARD TO EECONSTRUCTION 250 Eesumption of diplomatic relations 251 Government of acquired territory 252 Powers under recent war legislation 262 CHAPTER XVI. CONCLUSION 265 BIBLIOGRAPHY 271 TABLE OF CASES 283 INDEX 285 PREFACE The powers of the Executive relating to war have received surprisingly little attention in treatises and commentaries on the Constitution. They are usually passed by with little more than a repetition of the constitutional provision making the President the Commander-in-Chief of the armed forces of the nation. This study is an attempt to describe these war powers more fully and systematically than has heretofore been done. For this purpose, the term "war powers" has been interpreted somewhat liberally, so as to include not only the powers that may be exercised during the actual conduct of war, but also those that relate to the initiation and termination of war and to the reconstruction period following war. It has been necessary, in great measure, to work over old material and to make use of familiar historical incidents. Nevertheless, it is hoped that something has been contributed to show more clearly the com- prehensive scope and the almost unlimited nature of this phase of the President's power. The writer is indebted to members of the Political Science Seminar of the University of Illinois, and more especially to Professors Garner and Fairlie, for valuable suggestions and kindly criticism. He is alone responsible for any errors of fact or conclusion. UNIVERSITY OF ILLINOIS "It is difficult to describe any single part of a great governmental system without describing the whole of it. Governments are living things and operate as organic wholes." Woodrow Wilson. Constitutional Government in the United States CHAPTER I INTRODUCTION "The executive power shall be vested in a President of the United States of America." 1 The language here used by the Constitution in describing the executive power in the govern- ment of the United States is strikingly different from that describing the general power of either of the other two great de- partments. The article dealing with the legislative department uses the words, ' ' All legislative powers herein granted . . " 2 showing that the following specified powers clearly constitute a limitation on the possible claims of that department to power; while the article devoted to the judiciary also expressly states that the judicial power of the United States "shall extend to" certain enumerated cases, 3 thereby obviously excluding all other cases over which the judiciary might otherwise claim jurisdiction. The lack of such express limitations in the article dealing with the Executive has led to some difference of opinion as to whether the executive power vested in the President by the Constitution is defined and limited by the following specified powers, or whether it includes other powers not enumerated but naturally executive in character. Even if the former interpretation of the Constitution is accepted as correct, the conception of the term "executive power" still remains somewhat vague, since several of the expressly enumerated powers of the President, such as his powers as Commander-in-Chief and his power to see that the laws are executed, are in themselves undefined 'in the Constitu- tion, uncertain as to their limits, and therefore subject to va- rious interpretations. 1 Constitution, Art. II, Sec. 1. 2 Ibid., Art. I, Sec. 1. s Ibid., Art. Ill, Sec. 2. 11 12 WAE POWERS OF THE EXECUTIVE IN UNITED STATES J12 The article dealing with the Executive has therefore been char- acterized as "the most defective part of the Constitution," its loose and general expressions enabling the President, by impli- cation and construction, "either to neglect his duties or to en- large his powers. " * A distinguished historian says that while our Constitution in the main is of the rigid type, its flexible char- acter is shown in the provisions conferring the powers and de- fining the duties of the Executive. "Everything is clearly stat- ed, but the statements do not go beyond the elementary. ' ' Point- ing out that while the Constitution did not authorize certain of Lincoln's acts, neither did it expressly forbid them, he holds that there is ' ' room for inference, a chance for development, and an opportunity for a strong man to imprint his character upon the office. ' ' 5 Somewhat the same idea was expressed by Presi- dent Wilson some years ago when he wrote: "The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit. ' ' 6 A doctrine of constitutional construction the so-called Wil- son-Eoosevelt doctrine with regard to the control of matters within the "twilight zone" between the national and state jur- isdictions 7 was translated by President Roosevelt into terms of inherent executive power. He said: "The most important factor in getting the right spirit in my Administration, next to insistence upon courage, honesty, and a genuine democracy of desire to serve the plain people, was my insistence upon the theory that the executive power was limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under its constitutional powers. My view * View of Secretary of State Upshur. See his more extended state- ment, quoted in Taft, Our Chief Magistrate and His Powers, 141. e Rhodes, Historical Essays, 204, 214. 6 Constitutional Government in the United States, 70. * First enunciated by James Wilson in 1785, recently advocated by President Roosevelt, and stated as follows: "That when a subject has been neither expressly excluded from the regulating power of the Feder- al Government, nor expressly placed within the exclusive control of the States, it may be regulated by Congress if it be, or become, a matter the regulation of which is of general importance to the whole nation, and at the same time a matter over which the States are, in practical fact, unable to exercise the necessary controlling power. ' ' Willoughby, Constitutional Law, I. 47. 13] INTRODUCTION 13 was that every executive officer in high position was a steward of the people bound actively and affirmatively to do all he could for the people, and not to content himself with the nega- tive merit of keeping his talents undamaged in a napkin. I declined to adopt the view that what was imperatively necessary for the Nation could not be done by the President unless he could find some specific authorization to do it. My belief was that it was not only his right but his duty to do anything that the needs of the Nation demanded unless such action was for- bidden by the Constitution or by the laws. Under this inter- pretation I did and caused to be done many things not pre- viously done by the President and the heads of the departments. I did not usurp power but did greatly broaden the use of execu- tive power. In other words, I acted for the public welfare, I acted for the common well being of all our people, whenever and in whatever measure was necessary, unless prevented by direct constitutional or legislative prohibition. ' ' 8 Roosevelt's theory of executive power is disputed, however, by equally eminent authority. Senator Rayner, one of the leading constitutional lawyers of his time, contended that the clause dealing with the executive power relates simply to the distribution of governmental functions, and should not be con- sidered as a grant of power at all. 9 Professor Goodnow says that the holder of executive power "is for the most part to exercise the powers which have clearly been given to him by the Con- stitution, and the Constitution itself is regarded as a grant of power not otherwise possessed, rather than as a limitation of power already in existence. ' ' 10 The Supreme Court has likewise not only repudiated the Wilson-Roosevelt doctrine of constitutional construction as being contrary to the 10th Amendment, 11 but it has also definitely re- futed the Roosevelt theory of executive power. "We have no officers in this government," says the Court, "from the Presi- 8 Roosevelt, Autobiography, 388-389. a Speech in U. S. Senate, Jan. 31, 1907. Cong. Record, XLI, Pt. II (59 Cong., 2 Sess.)', 2010. 10 Principles of Constitutional Government, 89. 11 Kansas v. Colorado, 206 U. S., 46, 89-90 (1907). The 10th Amend- ment reads as follows: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ' ' 14 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [14 dent down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited author- ity." 12 It would therefore seem that ex-President Taft reflect- ed the better opinion when he stated the true view of executive power to be "that the President can exercise no power which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant as proper and necessary to its exercise. Such specific grant must be either in the Federal Constitution or in an Act of Congress passed in pursuance thereof. There is no undefined residuum of power which he can exercise because it seems to him to be in the public interest .... The grants of Executive pow- er are necessarily in general terms in order not to embarrass the Executive within the field of action plainly marked for him, but his jurisdiction must be justified and vindicated by affir- mative constitutional or statutory provisions or it does not exist." 13 Altho the weight of authority upholds the contention that executive power in the United States is limited definitely to the powers enumerated in the Constitution, or clearly implied there- from, the interpretation of those enumerated powers is frequent- ly such as to give to the President an extraordinary and prac- tically undefined range of authority. Thus, for example, it has been authoritatively held that the President, under his pow- er "to take care that the laws be faithfully executed," may un- dertake measures and exercise authority, for the enforcement of the law or the protection of federal rights, not specifically granted by Constitution or statute. 14 Other of the President's enumerated powers, such as his power as Commander-in- Chief 12 The Floyd Acceptances, 7 Wall., 666, 676 (1868). is Our Chief Magistrate and His Powers, 139-140. i*/n, re Neagle, 135 U. 8., 1, 63-64, 67 (1890). Cf. dissenting opinion, which held that such enforcement or protection "must proceed not from the President, but primarily from Congress," and that if Congress does not pass laws in reference to such matters, "there is not the slight- est legal necessity out of which to imply any such power in the Presi- dent." Ibid., 82, 83. See also view of W. W. Willoughby: "The obli- gation to take care that the laws of the United States are faithfully exe- cuted, is an obligation which is to be fulfilled by the exercise of those powers which the Constitution and Congress have seen fit to confer." Constitutional Law, II, 1151. 15] INTRODUCTION 15 and his power to receive and send ambassadors and ministers, are likewise subject to the same broad interpretation. If the general conception of executive power in the United States is somewhat vague and open to various interpretations, that is especially true of the nature and extent of executive power with regard to war. It has rightly been said that "the domain of the executive power in time of war constitutes a sort of 'dark continent' in our jurisprudence, the boundaries of which are undetermined. ' ' 15 From the very beginning of our history as a nation, states- men and commentators have held that since it is impossible to foresee what may be the exigencies or circumstances endanger- ing the public safety, therefore "no constitutional shackles can wisely be imposed," and none are imposed upon the so-called war powers. 16 They have held that there are two distinct classes of powers under the Constitution the peace powers, which are subject to the restrictions of the Constitution, and the war pow- ers, which are limited only by the laws and usages of nations, 17 15 J. W. Garner, in Eevue du Droit Public et de la Science Politique, XXXV, 13 (Jan.-Mar., 1918). 16 See argument of Hamilton, in The Federalist, No. 23 (Goldwin Smith ed., pp. 119-120). Cf. Speech of Senator Sumner, in U. 8. Senate, June 27, 1862 : ' ' Pray, Sir, where in the Constitution is any limitation of the War Powers? Let Senators who would limit them mention a single section, line, or phrase, which even hints at any limitation. . . . The War Powers are derived from the Constitution, but, when once set in motion, are without any restraint from the Constitution; so that what is done in pursuance of them is at the same time under the Constitution and out- side the Constitution. It is under the Constitution in the latitude with which it is conducted; but, whether under the Constitution or outside the Constitution, all that is done in pursuance of the War Powers is consti- tutional. ' ' Works of Charles Sumner, VII, 131-132. See also Fisher, Trial of the Constitution, 199. " ' ' There are, then, in the authority of Congress and of the Execu- tive, two classes of powers, altogether different in their nature and often incompatible with each other the war power and the peace power. The peace power is limited by regulations and restricted by provisions pre- scribed within the Constitution itself. The war power is limited only by the laws and usages of nations. This power is tremendous; it is strict- ly constitutional, but it breaks down every barrier 1 so anxiously erected for the protection of liberty, of property and of life. . . The powers of war are all regulated by the laws of nations, and are subject to no other limitations. ' ' Speech of John Quincy Adams, in House of Representatives, May 25, 1836. Cong. Debates, XII, Pt. IV (24 Cong., 1 Sess.), 4038, 4039. 16 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [16 and under which the rights of peace may even be disregarded or curtailed. 18 They have asserted that the war power implies the right to do anything that may seem necessary to carry on the war successfully, even to the extent of performing otherwise unconstitutional acts. 19 These claims with regard to the extent of the war power have also been sanctioned by the Supreme Court. Thus, in uphold- ing the Confiscation Acts of the Civil War, the Court said : ' ' If the statutes were not enacted under the municipal power of Con- gress to legislate for the punishment of crimes against the sov- ereignty of the United States; if, on the contrary, they are an exercise of the war powers of the government, it is clear they are not affected by the restrictions imposed by the 5th and 6th Amendments. ... Of course the power to declare war is ' ' But in bestowing upon the Government War Powers without limi- tation, they [the makers of the Constitution] embodied in the Con- stitution all the Eights of War as completely as if those rights had been severally set down and enumerated; and among the first of these is the right to disregard the Eights of Peace." Works of Charles Sumner, VII, 136-137. "It seems to be pretty well settled by the common sense of mankind that when a nation is fighting for its existence it cannot be fettered by all the legal technicalities which obtain in time of peace." Ehodes, Histor- ical Essays, 214. "What is the effect of our entering upon the war? The effect is that we have surrendered and are obliged to surrender a great measure of that liberty which you and I have been asserting in court during all our lives; power over property, power over persons. This has to be vested in a military commander in order to carry on war successfully." Speech of Elihu Eoot at Saratoga Springs, Sept., 1917, quoted in Va. Law Rev., V, 179. 19 < < When the Constitution conferred upon Congress the right to declare war, it by necessary implication conferred upon Congress the right to do anything that in its judgment is necessary to carry that war to a successful conclusion." Senator P. C. Knox, in U. S. Senate, May 29, 1917. Cong. Eeoord, 65 Cong., 1 Seas., 3276. "I felt that measures otherwise unconstitutional might become law- ful by becoming indispensable to the preservation of the Constitution through the preservation of the nation." Letter of Lincoln to A. G. Hodges, Apr. 4, 1864. Nicolay & Hay, Complete WorTcs of Abraham Lincoln, II, 508. "If the Union and the Government cannot be saved out of this terrible shock of war constitutionally, a Union and a Government must be saved un- constitutionally. ' ' Fisher, Trial of the Constitution, 199. 17] INTRODUCTION 17 involves the power to prosecute it by all means and in any man- ner in which war may be legitimately prosecuted. ' ' 20 Even the dissenting justices in this case admitted that legislation found- ed upon the war power is subject to quite different considera- tions from that based upon the municipal power of the govern- ment, and "is subject to no limitations, except such as are im- posed by the law of nations in the conduct of war . . . The war powers of the government have no express limitations in the Constitution, and the only limitation to which their exercise is subject is the law of nations. ' ' 21 The same principle has also been upheld by the Court in other cases. 22 Tho authorities thus seem to agree regarding the nature and unlimited extent of the "war powers" as such, the extent to which the exercise of these war powers is vested in the Presi- dent or in Congress is a matter of some dispute. For example, Senator Browning, during the Civil War, asserted the complete authority of the Executive in determining upon the measures necessary to meet any war emergency, denying that Congress had even coordinate power with the President in that respect. "It is not true," he said, "that Congress may decide upon the measures demanded by military necessities and order them to be enforced. . . These necessities can be determined only by the military commander, and to him the Constitution has in- trusted the prerogative of judging of them. When the Constitu- tion made the President ' Commander-in-Chief of the Army and Navy of the United States,' it clothed him with the incidental powers necessary to a full, faithful and sufficient performance of the duties of that high office ; and to decide what are military necessities, and to devise and execute the requisite measures to meet them, is one of these incidents. It is not a legislative, but an executive function, and Congress has nothing to do with it. ' ' 23 On the other hand, Senator Sumner disputed this claim to executive power, and held that the exercise of the war powers *o Hitter v. United States, 11 Wall., 268, 304-305 (1870). 21 Ibid., 315. 22 Stewart v. Kahn, 11 Wall., 493, 506-507 (1870); Mechanics and Traders Bank v. Union Bank, 22 Wall., 276, 295 (1874); McCormick et al. v. Humphrey, 27 Ind., 144, 154 (1866). 23 Speech in U. 8. Senate, June 25, 1862. Cong. Globe, 37 Cong., 2 Seas., 2919, 2920, 2922. 18 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [18 rested with Congress. "Of the pretension that all these enor- mous powers belong to the President, and not to Congress, I try to speak calmly and within bounds. I mean always to be parliamentary. But a pretension so irrational and unconstitu- tional ; so absurd and tyrannical, is not entitled to respect. Such a pretension would change the National Government from a government of law to that of a military dictator . . . " 24 As a matter of fact, the growth of executive power into a practical dictatorship in time of war, does not seem to have been especially feared in this country. During the Eevolution, at- tempts were made, both in New York and Virginia, to create a dictator, who in the latter state was to be "invested with every power legislative, executive, and judiciary, civil and military, of life and death over our persons and over our properties, ' ' 25 a proposal apparently approved by such a democrat as Patrick Henry. 26 Washington was actually given the power of a dictator on three separate occasions; 27 while Lincoln has been referred to by impartial writers as exercising ' ' more arbitrary power than any Englishman since Oliver Cromwell," and as one whose acts were "worthy of a Tudor. ' ' 28 During the recent World War, the necessity of making the President the supreme dictator in order to win the war was seriously suggested in Congress. 29 z* Speech in U. S. Senate, June 27, 1862. Worts of Charl&s Sumner, VII, 139-140. But of. Sumner 's remarks in a speech at Boston, only a few months later (Oct. 6): "In war there is no constitutional limit to the activity of the executive, except the emergency. The safety of the people is the highest law. There is no blow the President can strike; there is nothing he can do against the> Rebellion, that is not constitution- al. Only inaction can be unconstitutional." Ibid., 217. 25 Elliot 's Debates, II, 357-361; Writings of Thomas Jefferson, III, 231. 26 It was, however, bitterly opposed by Jefferson. Elliot's Debates, III, 160; Writings of TJwmas Jefferson, III, 231. 27 See resolves of Dee. 27, 1776, Sept. 17 and Nov. 14, 1777. Jour. Cont. Cong., VI, 1045-1046; VIII, 752; IX, 905. See also Elliot's Debates, III, 79. 28 Rhodes, Historical Essays, 213; cf. Bryce, American Commonwealth, I, 65-66, 72 ; Ford, Eise and Growth, of American Politics, 280. 29 Senator Harding (Ohio) made the suggestion in August, 1917: "What the United States needs and what it must have if it is to win the war is a supreme dictator, with sole control of and sole responsibility for every phase of war activity, and this today means practically every phase of Government. Not only does this country need such a dictator, 19] INTRODUCTION 19 That the President can of his own accord constitutionally as- sume dictatorial power in time of war has been denied by the courts as "an extravagant assumption ; " 30 altho most au- thorities hold that the war powers of the President constitute a " latent power of discretionary action" capable of almost un- limited expansion in times of emergency and making the Presi- dent practically absolute within a certain sphere of action. 31 The exact limits of this sphere of action for the President and the line of demarcation between his war powers and those of Congress, are difficult to determine. An attempt to draw such a line and to delimit such a sphere of action was made in a fam- ous case in the following language: "Congress has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essen- tial to the prosecution of war with vigor and success, except such as interfere with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander-in-Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature and by the principles of our institutions. The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxilliary powers. Each includes all authorities essential to its due exercise. But neither can the President in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law. ' ' 32 Other authorities have in my opinion it is sure to have one before the war goes much further. . . The sooner it conies the better for all of us. ... For supreme dictator at the present moment there is but one possible man, the President of the United States." N. Y. Times, Feb. 10, 1918. so Jones v. Seward, 40 Barb. (N. Y.), 563, 571 (1863). 31 Goodnow, Comparative Administrative Law, I, 32; Watson, On the Constitution, II, 914; Baldwin, Modern Political Institutions, 91-92; Channing, History of the United States, III, 513; W. A. Dunning, "The War Power of the President," New Republic, XI, 76-79 (May 19, 1917). For a somewhat extravagant claim as to the absolute nature of the Presi- dent's war powers, see remarks of Senator Lewis, in U. S. Senate, June 30, 1917. Cong. Eecord, LV, Pt. 5 (65 Cong., 1 Sess.), 4552, 4553. 32 Ex parte Milligan, 4 Wall., 2, 139 (1866). 20 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [20 attempted a briefer and simpler delimitation by saying that " Congress regulates whatever is of general and permanent im- portance, while the President determines all matters temporary and not general in their nature. ' ' 33 The main source of the President's war powers is of course the Constitution. Besides certain powers relating directly to war that are expressly conferred upon the President by that in- strument, 34 other powers and duties are vested in him that may have an important bearing on the conduct of war; 35 while still other clauses of the Constitution not referring directly to the President may by necessary implication add to his war powers. 36 Other. of the President's powers with regard to war are derived from international law and practise, are conferred by statute, or are established as a result of custom and usage. To define more clearly these war powers of the President, to determine their nature and source, and to discover the manner of their ex- ercise, is the purpose of this study. The most common forms through which the President in per- son exercises his powers, are by proclamations and executive orders, the former generally containing announcements and de- cisions of the widest interest and broadest scope, the latter usual- ly concerning matters not of such general interest. Either may be issued as a result of express or implied statutory authoriza- tion, or by virtue of the President's constitutional position as Chief Executive. The great increase in the number of these proclamations and executive orders issued in war time is also an excellent indication of the growth of the war powers of the Executive over his power in time of peace. Other forms of presidential action include rules and regula- tions issued under statutory authority or by virtue of the Presi- dent 's constitutional power; directions, instructions, or orders to heads of departments and other agencies; and decisions on lie, National Administration of the United States, 33; of. Von Hoist, Constitutional Law of the United States, 193. s* Art II, Sec. 2, 01. 1 (commander-in-chief). as Art I, Sec. 7, Cl. 2, 3 (sign and veto bills); Art II, Sec. 1, Cl. 8 (oath of office) ; Sec. 2, 01. 1 (power of pardon) ; Sec. 2, 01. 2 (power with regard to foreign relations and appointment of officers) ; Sec. 3 (recommend measures, call special session, and execute the laws). so Art. I, Sec. 9, 01. 2 (habeas corpus); Art IV, See. 4 (guaranty of republican government and of protection). 21] INTRODUCTION 21 matters requiring his approval or coining to him through ap- peals from the decisions of subordinate officials. Finally, the commissioning of officers appointed by him with or without the consent of the Senate, the recommendation of measures to Con- gress, and the signing or vetoing of bills, may be included among the means through which the President exercises his authority, and which must be considered in connection with this study of his powers. 37 Not all of the acts required of the President can possibly be performed by him personally, and the courts have definitely recognized that he may act through the heads of departments. ' ' The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties," and the acts of the heads of departments are "in legal contemplation the act of the President." 38 It has also been held that heads of departments may in turn act through subordinate officials in the departments; 39 but the question as to how far this delegation of power may be carried and still be considered the act of the President seems as yet to be unsettled by the courts. It has been pointed out that most orders and regulations are in fact prepared by subordinate of- ficials in the several departments, altho issued in the name of the head of the department or in the name of the President; and also that in some cases, and especially during the recent war, such orders and regulations have been issued by subordinate of- ficials, acting by authority of the head of the department, in matters where the statutes vested the power in the President. 40 This practise, undoubtedly becoming more common, opens up a vast new field for a study of the exercise of Presidential pow- ers. Since, however, as has been suggested, it is still an open question how far such exercise of authority by subordinate of- ficials can be considered as the act of the President, this study makes no attempt to include any exercise of power but by the President himself, or for which he may clearly be immediately responsible. 37 Cf. Fairlie, National Administration of ihe United States, 41-42. as Wilcox v. Jackson, 13 Pet, 498, 513 (1839) ; United States v. Eliason, 16 Pet., 291 (1842). 39 United States v. Warfield, 170 Fed. Eep., 43 (1909). 40 J. A. Fairlie, in Michigan Law Bev., XVIII, 188 (Jan., 1920). I. Powers Relating to the Beginning of War CHAPTER II CONTROL OF FOREIGN RELATIONS The function of managing the foreign relations may be classi- fied into two distinct branches: (1) the power of intercourse, intercommunication, and negotiation; (2) the power of entering into formal or binding international compacts. 1 The latter pow- er is shared by the President with the Senate, 2 but the former belongs exclusively to the President. ' ' The President is the sole organ of the nation in its external relations, and its sole repre- sentative with foreign nations. ' ' 3 Altho diplomatic negotiations and intercourse are regular- ly conducted through the Department of State, the acts of that department are in legal contemplation the acts of the President, 4 and, in fact, the Department of State has generally been recog- nized as having a special status, as being more directly sub- ject to the control of the President than any other department. This was clearly set forth by Senator John C. Spooner in a speech before the United States Senate on January 23, 1906, when he said: "The act creating the Department of State in 1789, was an exception to the acts creating the other Depart- ments of the Government. . . . It is a Department which from the begining the Senate has never assumed the right to direct or control, except as to clearly defined matters relating to duty imposed by statute and not connected with the conduct of our foreign relations. We direct all the other heads of De- 1 Pomeroy, Constitutional Law (Bennett's ed.), 564; Fairlie, National Administration of the United States, 29-30. 2 Constitution, Art. II, Sec. 2, Cl. 2. a John Marshall, in House of Eepresentatives, Mar. 7, 1800. Annals of Cong., 6 Cong., 613; cf. Pomeroy, op. cit., 564; Corwin, The President's Control of Foreign Relations, 33. * Jones v. United States, 137 U. S., 202, 217 (1890) ; Crandall, Treaties: Their Making and Enforcement (2nd ed.), 93. 25 26 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [26 partments to transmit to the Senate designated papers or in- formation. We do not address directions to the Secretary of State. We direct requests to the real head of that Department, the President of the United States, and, as a matter of courtesy, we add the qualifying words, 'if in his judgment not incompat- ible with the public interest. ' " 5 This control which the President exercises over our foreign relations has, with regard to his war power, several principal phases. In the first place, it gives the President the whole pow- er of initiating and formulating the foreign policy of the govern- ment, and virtually of committing the nation to its execution. Jefferson expressed this idea in a letter to M. Genet, November 22, 1793: "He (the President) being the only channel of com- munication between this country and foreign nations, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the nation ; and whatever he communi- cates as such, they have the right, and are bound to consider as the expression of the nation. ' ' 6 Ex-President Taf t, referring to the President's power of conducting the diplomatic corres- pondence, expressed the same thought in the following words: "He is bound in such correspondence to discuss the proper con- struction of treaties. He must formulate the foreign policies of our government. He must state our attitude upon questions constantly arising. While strictly he may not bind our govern- ment as a treaty would bind it, to a definition of its rights, still in future discussions foreign Secretaries of other countries are wont to look for support of their contentions to the declarations and admissions of our Secretaries of State in other controversies as in a sense binding upon us. There is thus much practical framing of our foreign policies in the executive conduct of our foreign relations. ' ' 7 President Wilson has put the case for the President even more strongly : ' ' One of the greatest of the Presi- dent 's powers (is) . . . his control, which is very absolute, of the foreign relations of the nation. The initiative in foreign affairs, which the President possesses without any restriction whatever, is virtually the power to control them absolutely. The e Cong. Record, 59 Cong., 1 Sess., 1420; cf. Ogg & Beard, National Governments and the World War, 97. Am. State Papers, For. Eel., I, 184. 7 Our Chief Magistrate and His Powers, 113. 27] CONTROL OP FOREIGN RELATIONS 27 President cannot conclude a treaty with a foreign power without the consent of the Senate, but he may guide every step of dip- lomacy, and to guide diplomacy is to determine what treaties must be made, if the faith and prestige of the government are to be maintained. He need disclose no step of negotiation until it is complete, and when in any critical matter it is completed the government is virtually committed. Whatever its disinclina- tion, the Senate may feel itself committed also. ' ' 8 This power of the President has also been definitely upheld by the Supreme Court, 9 and there can thus be no question as to his right and power under ordinary circumstances to initiate and formulate such diplomatic policies as he may deem proper, and virtually commit Congress and the country to their execution. It is also freely conceded by authorities that the Executive De- partment, by means of this branch of its power over foreign re- lations, "holds in its keeping the safety, welfare and even per- manence of our internal and domestic institutions. ' ' 10 This fact, that policies leading to disturbed relations with other pow- ers and even endangering the peace and safety of the country may be, and in fact have been, adopted at the will of the Execu- tive, has led to considerable discussion as to the propriety of en- trusting the sole responsibility for these matters to the President. The question has been raised whether, in view of the power of Congress to declare war, the President is under a constitutional obligation not to formulate and prosecute such diplomatic pol- icies as might incur the risk of war, or whether, in case grave consequences are feared, he should not at least advise and con- sult with Congress. The idea that the President is under some such obligation has been brought forward on several occasions. It was raised in 1826, when the proposal of President Adams to send representa- tives to the Panama Congress 11 aroused the opposition of such senators as Hayne, Woodbury, White, Van Buren, and Benton, s Constitutional Government, 77-78; See also President Wilson's let- ter to Senator Fall, Dec. 8, 1919. Infra, 35-36; S. E. Baldwin, in Yale Eev., IX, 407. Foster v. Neilson, 2 Pet., 253, 309 (1829); Williams v. Suffolk In- surance Company, 13 Pet., 415, 420 (1839). 10 Pomeroy, op. cit., 565. 11 Richardson, Messages and Papers of the Presidents, II, 318-320. 28 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [28 largely on the ground that this Congress was to be really a con- gress of belligerents, and that the United States, by taking part, would compromise its neutrality, become involved in ' ' entangling alliances," and incur the risk of war with Spain. 12 Their senti- ments were expressed by Van Buren (later President), when he said: "It is, then, the design of the Executive to enter into an agreement at the Congress . . . that if the powers of Eur- ope make common cause with Spain, or otherwise attempt the subjugation of Spanish America, we shall unite with the latter, and contribute our proportion to the means necessary to make the resistance effectual; and further, that we shall bind our- selves, at that Congress, as to the manner in which we shall re- sist any attempts, by the European powers, to colonize any por- tion of this continent." Such a proposal he characterized as "a measure by which the the peace of the country is to be ex- posed to a contingency beyond the control of our Government by which the great question of peace or war will be taken from the Representatives of the people by which, instead of re- taining that freedom of action which we now possess, we shall bind ourselves, in a certain event, to pursue a certain course, whatever those, to whom the Government of the country may have been committed, shall think the honor or interest of the country may require." 13 In the House of Representatives there was likewise consider- able opposition to the President's proposal on the same grounds. Thus Mr. Rives spoke of the result of our participation in the Congress as "most probably the adoption of measures endanger- ing the future peace of the country, ' ' and of the President 's dec- laration with regard to foreign interference in the affairs of South America as "a conditional, or, to use a more diplomatic phraseology, a provisional declaration of war ; " 14 while Mr. Hamilton remarked, "We have become, at the exclusive will of the President, the arbitrator of the New World, and, in that character, have sent bullying protests to the old. The Cabinet has, in our name, made two solemn contracts, to go to war in two contingencies, without, ' as a matter of preliminary advisement, ' even condescending to consult us. " 15 Others spoke to the same izBenton's Debates, VIII, 423, 425, 435, 436, 441, 446, 450, 462. "/MA, 446-447. i* Ibid., IX, 107, 111. Ibid., 136. 29] CONTROL OF FOREIGN RELATIONS 29 effect, and an attempt was even made to instruct the envoys to the Congress by attaching conditions to the resolution provid- ing for the mission. 16 These conditions were vigorously opposed in the House by Webster and others as an invasion of the power of the President to instruct ministers, 17 and were eventually voted down. 18 There was, however, considerable sentiment to the effect that while there was no power in the House to issue instructions either to the President or to ministers, still the House, through its power of granting or refusing appropriations, might exercise a re- straint upon foreign diplomatic intercourse a power which should, however, be exercised only when the policy of the Execu- tive was clearly tending to involve the country in war. 19 Sena- tor Johnston (of Louisiana) probably best summed up the posi- tion of the President and his supporters when he said: "There is nothing peculiar in the present case. The President has, at all times, the power to commit the peace of the country, and involve us in hostilities, as far as he has power in this case. To him is confided all intercourse with foreign nations. To his dis- cretion and responsibility is intrusted all our delicate and dif- ficult relations: all negotiations and all treaties are conducted and brought to issue by him. ' ' 20 Even Van Buren, who had spoken against the mission, admitted that, no matter what ac- tion the Senate or Congress might take, the President could still constitutionally provide for such mission on his own author- ity. 21 Whether or not the Panama mission of 1826 actually carried with it the dangers attributed to it by its opponents may still iBenton's Debates, IX, 91. IT Ibid., 94-95, 101, 115, 150. is Ibid., 217, 218. i See, for example, remarks of Mr. Thompson. Ibid., 182. 20 Ibid., VIII, 439. 21 Ibid., 441. ' ' But though neither Congress nor the court may direct the President in the discharge of his constitutional powers, yet either the Senate or the House separately, or both concurrently, may pass resolutions expressive of their desires in relation to questions of an international character, and the President may give such resolutions any weight he chooses, notwithstanding that they have no legal effect. Indeed, it is a part of the President's discretion to pay heed to such resolutions or not, as he elects." Corwin, The President's Control of Foreign Eelations, 40. 30 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [30 be a matter of some dispute, but is of little consequence to this study. The important point to be noted, on which both advo- cates and opponents of the mission were agreed, is that, if it was within the power of the President alone to decide upon a cer- tain diplomatic policy, such as this mission, it was likewise within his power, and his alone, to determine whether or not its consequences might involve the peace and safety of the country. The President having made his decision and carried out his policy, Congress and the country would be committed to it, re- gardless of consequences. This power of the President has been demonstrated in actual practise again and again. During a period of about twenty-five years (1823-1849), the Cuban policy of the Executive was con- sistently friendly to Spain and a guaranty of Spanish sover- eignty; after the Mexican War that was changed to a policy whose chief end was the acquisition of Cuba by the United States, and in the development of which American diplomacy has been characterized as "aggressive and intolerant;" while during the period after the Civil War, it was again changed to a policy of commercial and humanitarian interest, culminating finally in actual intervention and war. 22 President Grant's handling of the Virginius incident in 1873, President Cleveland's of the Venzuelan affair of 1895, and Presi- dent Wilson's of the Mexican situation throughout the entire course of his administration, illustrate the power of the Presi- dent both to bring on and to avert diplomatic crises. 23 Mention need only be made of such events as Washington's neutrality 22 Benton, International Law and Diplomacy of the Spanish-Ameri- can War, 14-20; Rhodes, History of the United States, II, 350-354. See message of President Cleveland to Congress, Dee. 7, 1896; and President McKinley's statement of the grounds for intervention, in his message of Apr. 11, 1898. Eichardson, op. cit., IX, 719-721; X, 147. 23 Rhodes, op. cit., VII, 29-36 ; Chadwick, Relations of the United States and Spain: Diplomacy, 314-357. "In an hour, by this executive act (Cleveland's action in the Venezuelan affair), we are brought face to face with a question of war with the leading power in Europe, and the danger of it passes away through a diplomatic correspondence, for the issue of which the President was again alone responsible. The very ground of our interference in this quarrel of Venezuela what was it but a doctrine proclaimed, and indeed invented, by a President of the United States? The Monroe Doctrine has laid down the law for our hemisphere, and it was the single act of the executive department." Baldwin, Modern Political In- stitutions, 105-106. 31] CONTROL OF FOREIGN RELATIONS 31 policy, the Monroe Doctrine, the annexation of Texas, the Mexi- can War, the Alabama Claims settlement, the acquisition of the Panama Canal, the Big Stick doctrine, our entrance into the war with Germany "all these, and many more," says Cor- win, "must be set down to the credit of executive leadership in the field of foreign relations. ' ' 24 It may therefore be asserted that the President, through his control of diplomatic intercourse, holds in his keeping the peace and safety of the United States, that he may initiate such dip- lomatic policies and so conduct diplomatic negotiations as to force the country into a war, "without any possibility of hin- drance from Congress or the Senate. ' ' 25 A second phase of the President's control of foreign relations that should be considered in this connection is his power to rec- ognize the belligerency or independence of new states and gov- ernments. This power of recognition is not expressly granted by the Constitution, but is implied from the general power to enter into diplomatic relations with foreign countries through the making of treaties and the exchange of accredited envoys. 26 It is not conferred in terms upon any one department of the government, but is now generally conceded as belonging to the Executive. 27 In practise, recognition has always been extended as the exclusive act of the President. 28 24 The President 's Control of Foreign Relations, 126 ; cf. Ford, Rise and Growth of American Politics, 279, 280. 25 Fairlie, National Administration, 30 ; Pomeroy, Constitutional Law, 565. 26 Constitution, Art. II, Sec. 2, Cl. 2 ; Sec. 3 ; cf. Taf t, Our Chief Mag- istrate and His Powers, 112-113; Story, Commentaries on tlie Constitution, II, 370-371. For a more extended discussion of this question, see an ar- ticle by the writer, ' ' The Power of Recognition, ' ' in Am. Jour. Int. Law, XIV, 519-539 (Oct., 1920). 27 In several cases the courts have declared the power of recognition to be vested in the ' ' political department ' ' of the government, without indicating clearly whether the executive or legislative department, or both, was meant. Rose v. Himely, 4 Cr., 241 (1801) ; Gelston v. Hoyt, 3 Wheat., 246, 324 (1818); Foster v. Neilson, 2 Pet., 253, 307 (1829); Jones v. United States, 137 U. S., 202, 212 (1890). However, in other cases, both the language and tone of the decisions are such as to show that the exe- cutive department is meant. United States v. Hutchings, 2 Wheeler 's Crim- inal Cases, 543, cited in Sen. Doc. No. 56, 54 Cong., 2 Sess., 24; Williams v. Suffolk Insurance Company, 13 Pet., 415, 420 (1839) ; Eennett v. Cham- 32 WAR POWERS OP THE EXECUTIVE IX UNITED STATES [32 New states generally come into existence by breaking off from an actually existing state, and altho recognition even in such cases is " a normal act, quite compatible with the maintenance of peaceful intercourse with the mother-country," provided the new community has actually won its contest and successfully maintained its independence and separate existence, 29 author- ities agree that premature recognition is a wrong done to the parent state, that it amounts to an act of intervention, and may properly be considered by the parent state as a cause for war. 30 Through the exercise of this power the President is thus upon occasion enabled to determine the question of peace or war for the United States. l>ers, 14. How., 38, 46, 50-51 (1852); United States v. Trumbull, 48 Fed. Eep., 99, 104 (1891) ; The Stata, 56 Fed. Eep., 505, 510 (1893). See also Senate Document No. 56, 54 Cong., 2 Sess., containing a report of the Senate Committee on Foreign Relations, presented to the Senate Jan. 11, 1897, in which, after an exhaustive investigation into the whole sub- ject of recognition, it was held that the power of recognition rested prop- erly with the President. In 1864, the Mexican situation brought about the passage of a House resolution declaring that ' ' Congress has a con- stitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as well in the recognition of foreign powers as in other matters ; ' ' and in 1896, a concurrent resolution was passed recognizing a state of war in Cuba and offering the good offices of the United States for the recognition of Cuban independence. These reso- lutions were ignored by Presidents Lincoln and Cleveland, respectively, on the ground that recognition was a matter for the Executive alone. Cong. Globe, XXXV, Pt. I, 65, 67; LatanS, America as a World Power, 9. The joint resolution of 1898 authorizing intervention in Cuba, declared "That the people of the island of Cuba are, and of right ought to be, free and independent ; ' ' but authorities hold that this is a mere state- ment of policy and not to be regarded as a claim by Congress to the pow- er of recognition. Benton, International Laiv and Diplomacy of the Span- ish-American War, 99; Corwin, The President's Control of Foreign Eela- tions, 80-81. Senator King (Utah) proposed a Senate resolution, May 23, 1919, for the recognition of the Omsk government of Eussia, which seems to have been buried in committee. Cong. Record, 66 Cong., 1 Sess. (May 23, 1919), 154. 28 For the manner in which recognition has been extended to other countries by the United States, see Senate Document No. 40, 54 Cong., 2 Sess. z Lawrence, Principles of International Law (6th ed.), 88. so Ibid.; Hall, International Law (6th ed.), 83; Moore's Digest of International Law, I, 73. 33] CONTROL OF FOREIGN RELATIONS 33 The serious responsibility thus resting upon the President has been recognized on several occasions. When the South American provinces were clamoring for recognition in 1817, President Monroe, altho sympathetic with their aspirations, evidently feared possible complications with Spain, 31 and in spite of pressure from Clay and his following in Congress, 32 de- clined to recognize these new states until he was satisfied that Spain would not resent the act with war. 33 President Jackson, curiously enough, was likewise extremely cautious about arousing the hostility of Mexico through a pre- mature recognition of Texas, declined to receive the Texan com- missioners sent to Washington in March, 1836, to ask for rec- ognition, 34 and apparently was unwilling to take the sole re- sponsibility in cases involving possible international complica- tions. Eeferring to the Texas situation in his message of De- cember 21, 1836, he spoke of the acknowledgment of a new state as independent as "at all times an act of great delicacy and re- sponsibility, but more especially so when such state has forcibly separated from another of which it had formed an integral part and which still claims dominion over it. A premature recognition under these circumstances, if not looked upon as a justifiable cause of war, is always liable to be regarded as proof of an un- friendly spirit to one of the contending parties." He therefore si See memorandum of questions submitted to his Cabinet, Oct. 25, 1817. Writings of James Monroe, VI, 31. 82 Clay in 1817 mounted what John Quincy Adams called "his South American great horse," and by means of resolutions proposed by himself and his followers, kept the question of recognition of these provinces con- stantly before Congress from 1818 to 1822, in an effort to force the hand of the President. Memoirs of John Quincy Adams, IV, 28; Annals of Cong., 15 Cong., 1 Sess., II, 1468, 1569, 1646, 1652, 1655; i~bid., 16 Cong., 1 Sess., II, 2223, 2229-2230; 2 Sess., 1071, 1077, 1081, 1091-1092; ibid., 17 Cong., 1 Sess., I, 854, 982. sa ' < The delay which has been observed in making a decision on this important subject will, it is presumed, have afforded an unequivocal proof to Spain, as it must have done to other powers, of the high respect enter- tained by the United States for her rights and of their determination not to interfere with them. . . It may be presumed that the successful progress of the revolution through such a long series of years. . . will reconcile the parent country to an acommodation with them on the basis of their unqualified inde- pendence. " Message to Congress, Mar. 8, 1822. Eichardson, op. cit., II, 116-118. 34 Beeves, American Diplomacy under Tyler and Polk, 78. 34 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [34 announced that he considered it "with the spirit of the Con- stitution and most safe," that the power of recognition, when probably leading to war, should be exercised "with a previous understanding with that body by whom alone war can be de- clared, and by whom all provision for sustaining its perils must be furnished. ' ' 35 The Senate Committee on Foreign Kelations, in its report of January 11, 1897, already mentioned, 36 altho strongly up- holding the President's right to the power of recognition, em- phasized also the dangers involved in the exercise of that power, since the older nation might regard such recognition as a cause of war. The question whether a nation should recognize an- other, and thus risk going to war with a third, was stated to be largely a question of expediency, of which the Executive was the best qualified to judge, tho it was added that "if recogni- tion of such independence is liable to become a casus belli with some foreign power, .... it is most advisable as well as proper for the Executive first to consult the legislative branch as to its wishes and postpone its own action if not assured of legislative approval. If, on the other hand, the Executive did not consider that the time had arrived to act, expressions of opinion by the legislature should be made with some caution." It seems therefore to be the general consensus of opinion that, while the power of recognition belongs properly to the President, it is a power that may easily involve serious complications with foreign nations, and in such cases should be exercised with due regard for the wishes of that branch of the government whose function it is to declare war. It should be noted, however, that any action of Congress would be merely advisory, that the whole power rests with the President alone. "It is the proper prov- ince of the Executive to refuse to be guided by a resolution on the part of the legislature, if, in his judgment, to do so would be unwise. The legislature may express its wishes or opinions, but may not command. ' ' 37 ss Eichardson, op. cit., Ill, 266-267. so Senate Document No. 56, 54 Cong., 2 Sess., 2. 37 Willoughby, Constitutional Law, I, 462 ; cf. Corwin, op. cit., 82. "It is not, indeed, a power likely to be abused, though it is pregnant with conse- quences often involving the question of peace or war. And, in our own short experience, the revolutions in France, and the revolutions in South America, have already placed us in situations to feel its critical character, and the 35] CONTROL OF FOREIGN RELATIONS 35 From his power to receive and send accredited envoys, the President also derives the power to withdraw the diplomatic representatives of the United States at his pleasure, or dismiss those of foreign powers, and thus sever all relations with any particular country a power which a distinguished authority has said "may be so exercised as to produce most momentous results." 38 This power to sever diplomatic relations is a power that has always been considered as peculiarly within the province of the President, and until very recently no attempt was ever made by Congress to assert any authority in that respect. However, the unsettled condition of affairs in Mexico, and the opinion of some people that President Wilson was being too patient in his handling of Mexican affairs, led to the introduction by Senator Fall (New Mexico), on December 3, 1919, of a concurrent reso- lution requesting the President to withdraw recognition from the Carranza Government and "to sever all diplomatic relations now existing between this Government and the pretended Gov- ernment of Carranza. ' ' 39 Tho this resolution clearly went oeyond the traditional view that the President alone has the entire responsibility for deciding whether or not diplomatic relations should at any time be severed, there seemed to be a disposition on the part of the Foreign Relations Committee of the Senate to recommend it favorably and push it to a vote. President Wilson, however, in a letter of December 8, 1919, to Senator Fall, vigorously as- serted the power and responsibility of the Executive in this mat- ter, expressing himself as follows: "I should be gravely con- cerned to see any such resolution pass the Congress. It would constitute a reversal of our constitutional practice, which might necessity of having at the head of the government an executive of sober judgment, enlightened views, and firm and exalted patriotism. ' ' Story, Com- mentaries, II, 371. SB Burgess, Political Science and Comparative Constitutional Law, II, 251. Hamilton did not seem to appreciate the tremendous possibilities in the ex- ercise of this power, especially to receive ministers, for he passed it by with this brief comment: "This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government. ' ' The Fed- eralist, No. 68 (Goldwin Smith ed., pp. 383-384). 39 See text of resolution in N. Y. Times, Dec. 4, 1919. 36 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [36 lead to very great confusion in regard to the guidance of our foreign affairs. I am convinced that I am supported by every competent constitutional authority in the statement that the initiative in directing the relations of our Government with foreign Governments is assigned by the Constitution to the Executive, and to the Executive only. Only one of the Houses of Congress is associated with the President by the Constitution in an advisory capacity, and the advice of the Senate is provided for only when sought by the Executive in regard to explicit agreements with foreign Governments and the appointment of diplomatic representatives who are to speak for this Govern- ment at foreign capitals. The only safe course, I am confident, is to adhere to the prescribed method of the Constitution. We might go very far afield if we departed from it. ' ' 40 Upon receipt of this letter, Senator Lodge, chairman of the Senate Committee on Foreign Relations, immediately announced that the committee would not push the Fall resolution, but would leave the entire responsibility for the Mexican situation with the President, thus virtually acknowledging the soundness of the President 's position. 41 The breaking of diplomatic relations, while not in itself an act of war, and not necessarily resulting in war, is meant to be a marked protest and generally does lead to war. 42 President Wil- son thus understood very well, as did the whole country, that his action, on February 3, 1917, in dismissing the German ambassa- . T. Times, Dec. 9, 1919. 41 ' ' Of course the committee will do nothing now. The President de- sires complete responsibility for the Mexican situation to rest on him. Let it rest there. We desired only to assist him ; he does not wish us to do so. He does not even allow us to express our support or make a suggestion. The committee will not again consider the resolution. We are through. ' ' State- ment of Senator Lodge. N. T. Times, Dec. 9, 1919. 42 See T. S. Woolsey, "The Beginning of War," Proc. Am. Pol Soi. Assn., I, 54-68, esp. 57-60. Diplomatic relations with Brazil were severed in 1827 and with Mex- ico in 1858, but in each case were very shortly restored without any in- tervening complications; with Mexico they were broken off also in 1836, and continued broken for three years, without war ; relations between Turkey and the United States were severed Apr. 20, 1917, but war was never declared between the two countries. Beeves, American Diplomacy under Taylor and Polk, 76; Moore's Digest, VII, 103-105; N. Y. Times Current Hist. Mag., VI, 437. 37] CONTROL OF FOREIGN RELATIONS 37 dor to the United States and recalling Ambassador Gerard from Berlin, was very likely the first step towards actual war, al- tho in his address to Congress on that date he expressed him- self as hopeful that further complications might be avoided. 43 Finally, the President may to a considerable extent determine questions relating to the peace of the United States through his power to enter into so-called executive agreements with other powers. The Constitution requires that treaties can only be made by the President by and with the advice and consent of the Sen- ate, 44 but "treaties" by no means include every sort of interna- tional arrangement entered into. Agreements of various sorts, some concerning only minor and routine matter, others on mat- ters of considerable importance and delicacy, are frequently made by the President without the knowledge or consent of the Senate, and are by long practise considered to be within the range of his authority. 45 Such agreements, altho not a part of the "supreme law of the land," as are treaties, nevertheless are considered binding upon the administration making them, but not upon succeeding administrations. 46 As a matter of fact, most of these agreements covering matters of any considerable importance have been respected by the successors of those mak- ing them, and have by general consent come to have the effect of a settled law. Such executive agreements take the various forms of a protocol, a modus vivendi, an exchange of notes or memoranda, or a mere "gentlemen's agreement," and are entered into by the Presi- dent by virtue of his power as Commander-in-Chief or of his diplomatic powers. 47 As an example of executive agreements based upon the first class of powers may be mentioned the agree- ment of 1817 with Great Britain for the limitation of naval armaments on the Great Lakes. This agreement was brought about by an exchange of notes 43 gee text of address in McKinley, Collected Materials for the Study of the War (1st ed.), 11-12. 44 Art. II, Sec. 2, 01. 2. 45 J. B. Moore, in Pol. Sci. Quar., XX, 388-390; Ogg & Beard, Na- tional Governments and the World War, 102. 46 Butler, The Treaty-Making Power of the United States, II, 370; Angarica v. Bayard, 127 U. S., 251, 261 (1888). 47 Corwin. The President's Control of Foreign Eelations, 116. 38 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [38 between the British minister at "Washington (Mr. Bagot) and the Acting Secretary of State (Mr. Rush), and provided that neither party should keep in service on Lakes Champlain and Ontario more than one, and on Lake Erie and the upper lakes more than two armed vessels, none of these to be armed with more than one cannon, and all other armed vessels of both parties to be dis- mantled. 48 Altho President Monroe nearly a year later submit- ted the arrangement to the Senate for its approval, 49 this action was merely perfunctory, since the agreement had become ef- fective immediately after the date of the original exchange of notes (April 28-29, 1817), through orders issued by the Secretary of the Navy to the naval officers commanding on the Great Lakes. 50 The arrangement was definitely undertaken as a meas- ure to preserve the peace between the two countries, 51 and re- mains to this day as a striking example of what may be done towards that end by purely Executive action. Another agreement between these two countries of somewhat similar import with respect to armament was entered into by means of a protocol signed at London, December 9, 1850, by the United States minister (Abbott Lawrence) and Lord Palmer- ston, under which the British government ceded Horseshoe Keef in Lake Erie to the United States, the latter agreeing to erect a 48 Am. State Papers, For. Eel, IV, 205-206. 49 Message to the Senate, Apr. 6, 1818. Ibid., 202. John Quincy Adams says on Jan. 14, 1818, that the President did not think it necessary to communicate the arrangement to Congress. Memoirs, IV, 41. The Senate gave its approval Apr. 16, 1818, following which the President issued a formal proclamation April 28, announcing that the agreement was in effect. Am. State Papers, For. Eel., IV, 207. eo The terms of the agreement were communicated by Mr. Bush to Secretary of the Navy Crowninshield on Apr. 30, 1817, and the necessary orders were issued by the latter May 2. Ibid., 206-207. 5i "The President (Madison), being satisfied that, if each nation should maintain on the lakes a naval force, it would expose both to con- siderable and useless expense, while it would multiply the risks of col- lision between them, instructed Mr. Adams, shortly after the peace, to make the proposals. . .in the hope that it might be carried into immediate effect." Monroe to Bagot, Aug. 2, 1816. Ibid., 203. "This arrange- ment for mutual disarmament on the lakes has undoubtedly been the great- est single factor in the continuance of peaceful relations between the United States and Great Britain during the last one hundred years."' Updyke, Diplomacy of the War of 1812, 465-466. 39] CONTROL OF FOREIGN RELATIONS 39 light-house but to maintain no fortifications. The agreement was ratified by an exchange of notes in London, February 10, 1851, with no formal ratification on the part of either country, and the light-house was erected in 1856 upon the appropriation of the necessary funds by Congress. 52 In 1859 a dispute between the United States and Great Britain over the island of San Juan off the Pacific coast, which threat- ened to cause serious difficulty between the two countries, was settled by an agreement, reached through an exchange of notes, for joint military occupation of the island. 53 This arrangement which continued until the entire island was given over to the United States under an arbitral decision in 1873, was upheld by the courts as a proper exercise of Executive authority, even to the extent of modifying, in the interest of peace, existing sta- tutes for the government of the disputed territory. 54 Perhaps the most remarkable exercise of the President's power to make international agreements without the consent of the Senate, by virtue of his authority as Commander-in-Chief, is the protocol concluded September 7, 1901, between China and the Allied Powers that had intervened during the Boxer upris- ing. This protocol required reparation for the murder of the German minister, and punishment of the principal authors of the outrages committed against foreigners during the uprising; prohibited to China the importation of arms and ammunition or of materials used exclusively for their manufacture; demand- ed an indemnity of 450,000,000 taels; constituted an extrater- ritorial quarter for the foreign legations in Peking; permitted temporary occupation by the Powers of certain strategic points ; 62 J. B. Moore, in Pol. Sci. Quar., XX, 390. ss Crandall, Treaties: Thevr Making and Enforcement, 106; Foster, Prac- tice of Diplomacy, 321. r, i ' < The power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national gov- ernment, and adheres where the executive power is vested. . . This par- ticular convention should be allowed to modify for the time being the operation of the organic act of this Territory, so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference in the government of that island." Watts v. United States, 1 Wash. Terr., 288, 294 (1870), quoted in Crandall, op. tit., 106-107. 40 WAE POWERS OF THE EXECUTIVE IN UNITED STATES [40 and required numerous undertakings on the part of China, es- pecially with regard to the conduct of her foreign relations. 55 This protocol was signed on the part of the United States by W. W. Kockhill, whose appointment as special commissioner to China had not been submitted to the Senate ; it went into effect without any further ratification, the whole matter thus being carried on and concluded by authority of the Executive alone. It is now authoritatively recognized that the President, with- out legislative authority, but solely by virtue of his powers as Commander-in-Chief, may permit or refuse the entry of foreign troops into the United States. 56 By virtue of the same authority, arrangements were made with Mexico in 1882, through an ex- change of notes, for the reciprocal passage of troops across the border in pursuit of hostile Indians. It is worthy of note that the Mexican Executive was distinctly authorized by the Mexican Senate to permit such crossing of troops, while in the United States the terms of the agreement were referred, not to the Sen- ate, but to the General of the Army, and approved by him and the Secretary of War. 57 These arrangements were renewed at various times, 58 and form the basis for the attempted agreements of like nature during the border troubles in 1916. 59 A similar 65 See text of protocol in For. Eel. 1901, App., 312-318. Foster calls this "probably the broadest exercise of executive authority in foreign matters without the concurrence of the Senate." Practice of Diplomacy, 318. ee Tucker v. Alexandra/, 183 U. S., 424, 435 (1902). Cf. Washington's refusal to permit British troops to cross United States territory in 1790, and the opinions of his Cabinet on the question. Writings of George Washington, XI, 497, n. ; Writings of Thomas Jefferson, V, 238-239 ; Works of Alexander Hamilton, IV, 20-49; Life and Works of John Adams, VIII, 497-500. 57 For. Bel. 1882, 396-397, 405, 419-426. The memorandum signed by Secretary Frelinghuysen and Minister Eomero stated that since the Mexi- can Senate had authorized the President of Mexico to allow the passing of Mexican troops into the United States and of United States troops into Mexico, "and the Constitution of the United States empowers the Presi- dent of the United States to allow the passag6 without the consent of the Senate, this agreement does not require the sanction of the Senate of either country, and will begin to take effect twenty days after this date (July 29, 1882)." 88 June 28, 1883; Oct. 31, 1884; Oct. 16, 1885; June 25, 1890; Nov. 25, 1892; June 4, 1896. 59 N. Y. Times Current Hist. Mag., IV, 403, 616, 618-619, 627. 41] CONTROL OP FOREIGN RELATIONS 41 arrangement with Great Britain for the reciprocal crossing of the Canadian boundary was proposed by Secretary Frelinghuy- sen in 1883, but was rejected by Canada on the ground that it involved the "risk of complications worse than that of Indian raids." 60 Among executive agreements entered into by virtue of the President 's diplomatic powers, and dealing with matters causing considerable dispute, difficulty, and possible complications, may be mentioned an agreement of 1885 with Great Britain, reached by an exchange of memoranda, with regard to the fisheries question ; 61 a modus vivendi with the same country in 1899 fix- ing a provisional boundary between Alaska and Canada; 62 the protocol of 1873 settling the Virginius affair with Spain ; 63 Sec- retary of War Taft's adjustment of the boundaries of the Panama Canal Zone ; 64 and the Root-Takahira and Lansing- Ishii agreements of 1907 and 1917, respectively. 65 The action of President Roosevelt in 1905 with regard to e See report of the Indian Commissioner for the Northwest Territories (Canada). For. Eel. 188S, 528. ei For. Eel. 1885, 460-469. ' ' This agreement proceeds from the mu- tual good-will of the two governments, and has been reached solely to avoid all misunderstandings and difficulties which might otherwise anse from the abrupt termination of the fishing of 1885 in the midst of the season." Statement of Secretary Bayard. Ibid., 460. 62 For. Eel. 1899, 328-330. esCrandall, op. cit., 107-108. 6 * " I had no power to make a treaty with Panama, but I did have, with the authority of the President, the right to make rules equivalent to law in the Zone. I therefore issued an order directing the carrying out of the plan agreed upon, in so far as it was necessary to carry it out on our side of the line, on condition that, and as long as, the regulations to be made by Panama were enforced by that government. This was ap- proved by Secretary Hay and the President, and has constituted down until the present day, I believe, the basis upon which the two govern- ments are carried on in this close proximity. It was attacked vigorously in the Senate as a usurpation of the treaty-making power, and I was summoned before a committee in the Senate to justify what had been done. There was a great deal of eloquence over this usurpation by Mr. Morgan and other Senators, but the modus vivendi continued as the practical agreement between the nations for certainly more than seven years, and my impression is that it is still in force in most of its pro- visions." Taft, Our Chief Magistrate and his Powers, 111-112. as for. Eel. 1908, 510-512; Am. Jour. Int. Law, XII, Supp., 1-3. 42 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [42 Santo Domingo is especially noteworthy in this connection, in that a treaty was first negotiated providing that the United States should guarantee the integrity of that country, take charge of its customs, and settle its obligations; and when this treaty failed of ratification in the Senate, President Roosevelt nevertheless put its terms into effect through a modus vivendi. For two years the affairs of that island were administered under the sole authority of this executive agreement, until in 1907 the Senate yielded and ratified a slightly revised treaty. 68 The President is thus enabled, through his power of entering into these executive agreements which do not require the sanc- tion of the Senate, to assume complete responsibility for the handling of matters of almost every variety in the field of foreign relations, many of which involve complications and deli- cate questions that might, easily affect the peace and safety of the United States. 66 Latane, America as a World Power, 280-281 ; J. B. Moore, in PoL Sci. Quar., XX, 386-387; Roosevelt, Autobiography, 551-552. CHAPTER III MILITARY MEASURES SHORT OF WAR By virtue of his position as Commander-in-Chief, as well as by authority of other constitutional and statutory provisions, the President may undertake numerous military measures that are short of actual war. In the first place, there are many instances in which he may employ the armed forces to aid the civil au- thorities within the United States. Thus, for example, the con- stitutional clause guaranteeing to every state a republican form of government and protection against domestic violence, 1 is held to give the President power to use troops, without special legis- lative sanction, when needed for those purposes, and even to an- ticipate and prevent local disturbances by a show of force. 2 In 1878 an attempt was made to restrict the President 's power to use the armed forces in executing the laws of the United States through an act of Congress forbidding the employment of the army as a posse comitatus, except as expressly authorized by the Constitution or by statute. 3 It has been held, however, in spite of that statute, that the provisions of the Constitution vest- ing the President with the executive power and making it his duty to ' ' take care that the laws be faithfully executed, ' ' 4 must be construed as giving to the President the general power of enforcing the laws and the "peace of the United States" by any means that he may find necessary. 5 ' ' Congress may, by dis- 1 Art. IV, Sec. 4. 2 Lieber, The Use of the Army in Aid of the Civil Power, 30-37,45; Winthrop, Abridgment of Military Law, (2nd ed.), 336-337. Cf. the send- ing of troops under Gen. Wood to Gary in 1919 to prevent disorder dur- ing the steel strike. 3 Act of June 18, 1878. 20 Stat. at L., 145, 152 (Sec. 15). * Art II, Sec. 1, Cl. 1 ; Sec. 3. 5 Lieber, op. tit., 14, 37, 40, 55; Ex parte Siebold, 100 U. 8., 371, 394-395 (1879); In re Neagle, 135 U. S., 1, 63-64, 67, 69 (1890). Cf. 43 44 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [44 banding the Army, render it impossible for the President to resort to his constitutional power as executive and commander- in-chief of employing the Army in aid of the civil power, in the execution of the laws, or may couple an appropriation for the support of the Army with a condition as to the use of the money appropriated ; but, if it be true that the Constitution di- rectly vests the President with (this) duty and power . . . Congress cannot make the exercise of such power illegal. It may prevent its exercise, but it cannot make it illegal. ' ' 6 These constitutional powers are also reinforced by statutory authorization to use the armed forces in aid of the civil power in several specific instances. Thus the President is expressly em- powered to employ the land or naval forces to such extent as may be necessary for the protection of civil rights ; for carrying out the guarantees to the Indians; for the preservation of the public lands and forests; and for the enforcement of the laws with respect to quarantine, extradition, and neutrality. 7 In none of these instances should the exercise of his powers by the President cause any difficulties or complications with foreign nations, except in the case of the enforcement of the neu- trality laws of the United States. In this connection, mention need only be made of such incidents as Washington's famous neutrality proclamation of 1793, 8 the Fenian invasion of Canada President Cleveland's use of troops in Chicago during the railroad strike of 1894, over the protest of Gov. Altgeld. 6 Lieber, op. tit., 56-57. See also opinions of ex- Attorney General Miller and Senator Edmunds. Ibid., 15 n., 43; cf. Pomeroy, Constitution- al Law (Bennett ed.), 537-538. iU. S. Rev. Stats., Sees. 1984, 1989; 2118, 2147, 2150-2152; 2460, 5596; 4792, 5275; 23 Stat. at L., 322; 31 ibid., 618; 35 ibid., 1088, 1089. These are conveniently listed in Army Regulations (ed. 1917), 106-109. 8 The first neutrality law of the United States was not passed until 1794, hence Washington's proclamation was based not on statutory au- thority, but on the obligations of neutrality as defined in the law of nations. Writings of George Washington, XII, 281-282. Cf. with Wilson's proclamations of neutrality in 1914. U. S. Stats., 63 Cong., 2 Sess., Pt. 2, Procs., 62 ff. The right of the President to commit the country to a policy of neutrality wa's vigorously condemned and defended by Madison and Hamilton, respectively, in the famous Helvidius and Pacificus letters. For pertinent extracts of these letters, as well as for comment upon them, see Corwin, The President's Control of Foreign Relations, ch. 1. 45] MILITARY MEASURES SHORT OF WAR 45 in 1866, 9 the numerous filibustering expeditions against Cuba and other countries, 10 and the strong feeling of the Central Pow- ers against the manner in which the neutrality of the United States was enforced during the the first years of the recent World "War, to indicate the delicate nature of the President's responsibility in this regard, and the possible international com- plications that may result. 11 The President has also been empowered on some occasions, and on other occasions has exercised the power without specific authority, to undertake military measures for the protection of the so-called ''inchoate" interests of the United States meas- ures that involve a considerable interference with the rights of other nations and are therefore fraught with serious possibilities. As early as January 15, 1811, a resolution of Congress asserted the peculiar interest of the United States in the Spanish province of Florida and declared, "That the United States, under the peculiar circumstances of the existing crisis, cannot, without serious inquietude, see any part of the said territory pass into the hands of a foreign Power; and that a due regard to their own safety compels them to provide, under certain contingencies, for the temporary occupation of the said territory ; they, at the same time, declare that the said territory shall, in their hands, remain subject to future negotiation. ' ' Following out the sentiment of this resolution, an act of the same date authorized the President, by means of the military and naval forces, to take possession of, hold, and occupy the terri- For an excellent account of this incident, together with the compli- cations it involved, see Oberholtzer, History of the United States since the Civil War, I, 524-537, esp. 528, 532, 534-535. 10 Latane, America as a World Power, 8-9 ; Chadwick, Relations of the United States and Spain: Diplomacy, 411-426; Smith, Parties and Slav- ery, 251-256. 11 President Polk in 1848 found it difficult to reconcile his frank sympathy for the Irish with his duty to enforce the neutrality laws against American citizens aiding the Irish revolt, and when called upon by the British government to act, hesitated in the hope that the issue might be evaded. With regard to the expedition of the so-called ' ' Buffalo Hunt- ers" against Mexico in the same year, he had no such qualms, but im- mediately sent instructions to Gen. Taylor to use such military force as was necessary to check the movement. Diary of James K. Polk, IV, 104- 106, 109, 112. 46 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [46 tory of East Florida, if necessary to prevent its occupation by any foreign government, and to establish a temporary govern- ment over that region ; while another act of February 12, 1813, authorized him to take similar action with regard to West Flor- ida. 12 As a result of these acts, Amelia Island in East Florida, cap- tured from the Spanish in 1811 by a party of so-called "pa- triots," assisted by a few American troops and gun-boats, was held by the United States and subject to regulations imposed by American officers for more than a year ; while in West Flor- ida, the city of Mobile was seized by General Wilkinson in 1813, under orders from the President, and never surrendered. 13 Again in 1819, the treaty ceding Florida to the United States having been signed, but not yet ratified by Spain, President Mon- roe suggested to Congress that the interests of the United States in Florida were such that he should be authorized to occupy that territory and carry out the provisions of the treaty as if it were in effect. 14 Military measures for the occupation of Flor- ida were contemplated, even to the extent of reducing St. Au- gustine by "regular siege," if necessary, 15 but fortunately for the peace of the two countries, Congress did not see fit at that time to authorize such action. 16 12 These are the famous ' ' secret laws ' ' referred to by John Quincy Adams as ' ' those singular anomalies of our system which have grown out of that error in our Constitution which confers upon the legislative assemblies the power of declaring war." He also says that there are four of these secret laws and one resolution; "and one of the laws, that of 25th June, 1812, is so secret that this day it could not be found among the rolls at the Department." Memoirs, TV, 32 (Dee. 30, 1817). The act of 1812 referred to by Adams has apparently not yet been found or pub- lished, while the fourth law to which he refers is probably that of Mar. 3, 1811, which placed the ban of secrecy on these acts, including itself. The injunction of secrecy was removed July 6, 1812, but the laws were not published until 1818. See Annals of Cong., 15 Cong., 1 Sess., II, App., 2601-2604. is Thomas, Military Government in Newly Acquired Territory of the United States, 55-56. i* Message of Dec. 7, 1819. Richardson, Messages and Papers of the Presidents, II, 57; cf. Memoirs\ of John Quincy Adams, IV, 480. i* Jameson, ' ' Calhoun Correspondence, ' ' in Eeport, Am. Hist. Assn., 1899, II, 164-165, 165-166. 1 The act for carrying the treaty into effect was passed Mar. 3, 1821, while the exchange of ratifications occurred in February. 47] MILITARY MEASURES SHORT OF WAR 47 The right of the President to undertake military measures for the protection of these "inchoate interests" of the United States, even without legislative sanction, was apparently first asserted in 1844. In that year President Tyler, having entered into negotiations with Texas for its annexation to the United States, ordered such a concentration of the land and naval forces as to protect Texas against the danger of a Mexican invasion while the treaty of annexation was under consideration in the Senate. 17 In response to a Senate resolution of inquiry, the Presi- dent defended his action by declaring it as his opinion "that the United States having by the treaty of annexation acquired a title to Texas which required only the action of the Senate to perfect it, no other power could be permitted to invade and by force of arms to possess itself of any portion of the territory of Texas pending your deliberations upon the treaty without plac- ing itself in a hostile attitude to the United States and justifying the employment of any military means at our disposal to drive back the invasion. ' ' 18 In spite of vigorous denunciation of this action in Congress and a threat of impeachment against President Tyler, 19 the same doctrine of an inchoate interest in Texas was advocated by President Polk. He declared that "the moment the terms of annexation offered by the United States were accepted by Texas the latter became so far a part of our country as to make it our duty to afford such protection and defense ; " 20 and therefore, IT Corwin, The President's Control of Foreign Eelations, 156; Beeves, American Diplomacy under Tyler and Polk, 169; Eichardson, op. tit., IV, 317. is Message to Senate, May 15, 1844. Richardson, op. cit., IV, 317. i Beeves, op. cit., 163. Senator Benton replied to the President's message as follows : ' ' This is a reversal of the power of the Senate, and a reading backwards of the Constitution. It makes an act of de- feasance from the Senate necessary to undo a treaty which the President sends to us, instead of requiring our assent to give it validity. It as- sumes Texas to be in the Union, and protected by our Constitution from invasion or insurrection, like any part of the existing States or Terri- tories; and to remain so till the Senate puts her out by rejecting the treaty! This, indeed, is not merely reading, but spelling the Constitution backwards! It is reversing the functions of the Senate and making it a nullifying, instead of a ratifying body." Cong. Globe, XIII, App., 498 (28 Cong., 1 Sess., June 1, 1844). 20 Message to Congress, Dec. 2, 1845. Bichardson, op. cit., IV, 388. 48 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [48 in May, 1845, he ordered General Taylor to cross into Texas to protect it pending annexation. 21 Clearly, the action of Presi- dent Polk had more basis than that of President Tyler. Tyler considered himself empowered to protect territory whose acquisi- tion was merely proposed in a treaty not yet ratified, and which, in fact, failed of ratification; while Folk's action had at least the justification that the annexation of Texas was then an as- sured fact, altho at that time not formally in effect. President Grant's policy with regard to Santo Domingo (1869- 1871) likewise involved the principle of an inchoate interest on the part of the United States which the President was empow- ered to protect. Having negotiated with President Baez a treaty of annexation by a most unusual method and almost without the knowledge of his Cabinet, Grant sent a strong naval force to the island to protect it from invasion and from internal disorder, not only during the consideration of the treaty by the Senate, but even after its rejection, 22 on the ground that "the Govern- ment of the United States is peculiarly interested in the exemp- tion of the Dominican Republic both from internal commotions and from invasions from abroad. ' ' 23 The President's action was severely condemned on the floor of the Senate, especially by such men as Sumner and Schurz. Schurz declared the doctrine that the President could, by mak- ing a treaty, create an inchoate right to some foreign territory, and then, without authority from Congress, commit acts of war for the enforcement of that inchoate right, to be "the hugest absurdity, the most audacious preposterosity, the most mischie- vous, dangerous, and anti-republican doctrine that ever was broached on the floor of the Senate. ' ' 24 Senator Sumner likewise bitterly scored the action of the President, and offered a resolution condemning the employment of the Navy without the authority of Congress against a friendly foreign nation or in belligerent intervention in the affairs of a 21 Bichardson, op, cit., IV, 388-389 ; Beeves, op cit., 277. 22Bhodes, History of the United States, VI, 346-354; Corwin, op. cit., 158. For Grant's instructions to the U. S. naval officers, see Moore's Digest of International Law, I, 278. 23 Secretary of State Fish to Mr. Bassett, minister to Hayti, Nov. 16, 1870. Moore's Digest, I, 279. The treaty had been rejected June 30, pre- ceding. 24 Cong. Globe, 42 Cong., 1 Sess., Pt. II, App., 52. 49] MILITARY MEASURES SHORT OF WAR 49 foreign nation, as "an infraction of the Constitution of the United States and a usurpation of power not conferred upon the President." The resolution further declared, "That while the President, without any previous declaration of war by act of Congress, may defend the country against invasion by foreign enemies, he is not justified in exercising the same power in an outlying foreign island, which has not yet become part of the United States ; that a title under an unratified treaty is at most inchoate and contingent, while it is created by the President alone, in which respect it differs from any title created by act of Congress ; and since it is created by the President alone, with- out the support of law, whether in legislation or a ratified treaty, the employment of the Navy in the maintenance of the Govern- ment there is without any excuse of national defense, as also without any excuse of a previous declaration of war by Con- gress." 25 However, other Senators, such as Harlan (Iowa) and Morton (Indiana) came to the defense of the President, and Sumner's resolution was laid on the table by a large majority (38-16), 26 so that there would seem to be some point to Professor Corwin's remark about Harlan 's argument that it "at least demonstrated the futility of attempting to confine the President's protective function to the mere duty of repelling invasion or immediate physical attack. ' ' 27 President Roosevelt's action in 1903 in preventing the inter- ference of Colombia in the Panama revolution was likewise based on the ground of an inchoate interest on the part of the Uni- ted States in the Panama Canal and therefore in the success of the revolution. 28 The President may also on his own authority undertake mili- 25 Cong. Globe, 42 Cong., 1 Sess., Pt. II, 294. 26/fetU, 329. 27 The President 's Control of Foreign Relations, 160. President JRoose- velt's action with regard to Santo Domingo in 1905 was similar to that of President Grant in that the contemplated measures were undertaken even after a treaty authorizing them had been rejected. Roosevelt's ac- tion, however, was not based on the doctrine of inchoate interest, but seems to be more properly classified under the policy of police super- vision. Infra, 54; cf. also supra, 41-42. 28 See Jones, Carribbean Interests of the United States, 199-203; Roosevelt, Autobiography, 553-569. 50 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [50 tary measures for the protection of American rights and inter- ests abroad. 29 This power was exercised in 1853 in the famous Koszta incident, when Martin Koszta, a native of Hungary who had become an American declarant (not yet fully naturalized), but who had been seized at Smyrna at the instigation of the Aus- trian authorities, was released through the vigorous action of an American naval captain in training his guns upon the Austrian vessel on which Koszta was held. The incident caused consid- erable excitement and was protested by the Austrian govern- ment; but Captain Ingraham's action was sustained by public opinion, by Congress, and by the Executive, Secretary of State Marcy laying down the principle that any individual "clothed with our national character" is entitled to claim the protection of this government, "and it may respond to that claim without being obliged to explain its conduct to any foreign power; for it is its duty to make its nationality respected by other nations and respectable in every quarter of the globe. ' ' 30 Another demonstration of this power occurred a year later (1854), when Greytown (San Juan), in Nicaragua, was bom- barded ' ' until the town was laid in ashes, ' ' in default of repara- tion demanded for an attack on the United States consul. 31 This action was approved and defended before Congress by President Pierce, 32 and later upheld by the courts, Justice Nelson declar- ing that it is to the President, as the Executive head of the Na- tion, that citizens abroad must look for protection of person and property, and that, for this purpose, "the whole Executive power of the country is placed in his hands, under the Constitution, and the laws passed in pursuance thereof ; and different Depart- ments of government have been organized, through which this power may be most conveniently executed, whether by negotia- tion or force a Department of State and a Department of the Navy." He further declared that the duty of such interposi- tion abroad, for the protection of the lives or property of the 2 Corwin, op. cit., 142 ; Boot, Military and Colonial Policy of the Uni- ted States, 157-158. so Rhodes, History of the United States, I, 416-419. The Supreme Court also referred to this incident with approval in a decision rendered some years later. In re N eagle, 135 U. S., 1, 64 (1890). si Ehodes, op. cit., II, 9-10. 32 Message to Congress, Dee. 4, 1854. Eichardson, op. cit., V, 280-284. 51] MILITARY MEASURES SHORT OF WAR 51 citizen, ''must, of necessity, rest in the discretion of the Presi- dent." 33 The attack by American war vessels upon the Barrier forts of China in 1856, in order to avenge an alleged insult to the flag, 34 undertaken without authority of Congress, was apparent- ly approved even by the cautious Buchanan, altho further active participation in a military expedition into Chinese terri- tory was declined as beyond the authority of the President alone to undertake. Secretary Cass thus stated the position of the administration : ' ' 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 elswhere, and will do again when necessary. But military expeditions into the Chinese territory can not be undertaken without the authority of the National Legislature. ' ' 35 President Buchanan also, without authority from Congress, ordered a naval force to Cuban waters with directions "to pro- tect all vessels of the United Statesmen the high seas from search or detention by the vessels of war of any other nation. ' ' A con- flict with Great Britain was avoided only by the latter 's aban- donment of her claim to the right of visit and search in time of peace. 36 Even the qualification upon the President's powers admitted by Secretary Cass in 1857 was abandoned in 1900, when Presi- dent McKinley, without any express authorization from Con- gress, sent a naval force under Admiral Kempff and an army of about 5000 men under General Chaffee to China, not merely 334 Blatchford, 451, 454, quoted in Corwin, op. cit., 144. s* For account of this affair, see Foster, American Diplomacy in the Orient, 225-227. SB Cass to Lord Napier, Apr. 10, 1857. Moore 's Digest, VII, 164. 36 Richardson, op. cit., V, 507. Buchanan was, however, curiously in- consistent, deeming it necessary to appeal to Congress for authority to protect American citizens in Nicaragua, New Grenada, and Mexico, and to keep the Panama and Tehuantepec routes of transit open and safe for them. "The executive government of this country," he said, "in its intercourse with foreign nations is limited to the employment of diplo- macy. When that fails it can proceed no further. It can not legitimately resort to force without the direct authority of Congress, except in re- 52 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [52 for the purpose of rescuing and protecting the lives and property of American citizens in China, but also to cooperate with the forces of the other Powers in avenging and punishing the mur- der of the representatives of these Powers that had been killed during the Boxer uprising. Altho the ensuing campaign involved hard fighting and many casualties, the President said that our declared aims "involved no war against the Chinese nation. We adhered to the legitimate office of rescuing the im- periled legation, obtaining redress for wrongs already suffered, securing wherever possible the safety of American life and prop- erty in China, and preventing a spread of the disorders or their recurrence. ' w A still more recent example of this exercise of the President's power is the action of President Wilson in April, 1914, in or- dering a force of sailors and marines to capture Vera Cruz by way of reparation for Huerta 's affront to the flag of the Uni- ted States. This measure, characterized by an eminent histor- ian as "an act of war ' ' which looked to Latin- American countries like "the beginning of a war of conquest" and which was "fiercely resented in Mexico," was undertaken without author- ity from Congress, 38 the city, moreover, being occupied for a period of seven months (until November 23, 1914) by an army of 6000 men under General Funston. 39 The power of the President to employ the land and naval forces on his own authority, whether for the purpose of protect- sisting and repelling hostile attacks. . . Without the authority off Congress the Executive can not . . . , without transcending his con- stitutional power, direct a gun to be fired into a port or land a seaman or marine to protect the lives of our countrymen on shore or to obtain re- dress for a recent outrage on their property. . . Without the au- thority of Congress the President can not fire a hostile gun in any case except to repel the attacks of an enemy." Richardson, op. tit., V, 516, 539, 570. 37 Message to Congress, Dec. 3, 1900. For. Eel. 1900, xiv. For an ac- count of the expedition, see Boot, Military and Colonial Policy of the Uni- ted States, 333, 336-347; cf. Taft, Our Chief Magistrate and His Powers, 114-115. ss Vera Cruz was captured Apr. 21, 1914. The next day Congress passed a resolution declaring the use of troops justifiable and disclaiming any purpose to make war. 38 Stat. at L., 770. 39Qgg, National Progress, 293-295. 53] MILITARY MEASURES SHORT OF WAR 53 ing the so-called "inchoate interests" and honor of the United States, or the rights and property of American citizens abroad, has thus been demonstrated in actual practise again and again, and seems also to have been approved by Congress, by the courts, and by public opinion. It seems scarcely necessary to suggest the possibilities of international complications and conflicts that may result from an unwise exercise of this power, and hence the enormous responsibility for the peace of the United States that rests in this way upon the shoulders of the President. But in addition to these powers of protection, which are, after all, inherent in government, a more recent development of American foreign policy has vested in the President considerable power with respect to intervention and police supervision over the affairs of other nations. The so-called "zone of the Carib- bean," because of its proximity and strategic importance to the United States, the unsettled character of the governments in that zone, and the inclination of the United States under the Monroe Doctrine to look with disfavor upon action by any for- eign power, is now considered as being under the general police supervision of the United States ; the policy of this country hav- ing undergone a gradual change from one of sympathetic inter- est but absolute non-interference in the affairs of these Carib- bean states to one of direct and active intervention in their in ternal affairs. 40 This power of intervention and police supervision was prob ably first exercised by President Cleveland in 1885, when dur- ing the course of a civil war in Colombia, he sent troops to keep open the transit across the Isthmus of Panama. Altho this action was taken under authority of a provision (Article 35) in the treaty of 1846 with Colombia, its execution, as the President informed Congress, "necessarily involved police control where the local authority was temporarily powerless, but always in aid of the sovereignty of Colombia. ' ' 41 The doctrine upon which the exercise of such police control 40 Jones, Caribbean Interests of the United States, 17-23. See also several articles by P. M. Brown "Our Caribbean Policy," Proc. Acad. Pol. Set., VII, 418-422; "American Diplomacy in Central America," Am. Pol. Sci. Eev., VI, supp., 152-163 ; ' ' American Intervention in Cen- tral America," Am. Jour. Race Development, IV, 409-426. 41 Message to Congress, Dee. 8, 1885. Richardson, op. cit., VIII, 326. 54 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [54 might be justified was laid down by President Roosevelt in his message to Congress, December 6, 1904, when he said : ' ' Chron- ic wrongdoing, or an impotence which results in a general loos- ening of the ties of civilized society, may in America, as else- where, ultimately require intervention by some civilized nation, and in the Western Hemisphere the adherence of the United States to the Monroe Doctrine may force the United States, how- ever reluctantly, in flagrant cases of such wrongdoing or im- potence, to the exercise of an international police power. ' ' 42 The doctrine here laid down has since been developed into a definite policy largely through numerous military measures undertaken on the sole authority of the President. Thus, in 1905, even before he entered into the executive agreement with Santo Domingo already referred to, 43 President Roosevelt di- rected United States naval forces to interfere and prevent any fighting in that country which might menace the custom- houses. 44 United States marines have since been landed on sev- eral occasions both in Hayti and Santo Domingo to preserve order and to maintain the customs service; since 1912 the lat- ter country has been favored with at least one visit a year from United States cruisers ; and in 1916 a military occupation of the island was established that has apparently not yet been aban- doned (June, 1920). * 5 42 For. Eel. 1904, xli. 43 Supra, 41-42, 49n. 44 ' ' Santo Domingo had fallen into such chaos that once for some weeks there were two rival governments in it, and a revolution was being car- ried on against each. . . The situation had become intolerable by the time that I interfered. There was a naval commander in the waters whom I directed to prevent any fighting which might menace the custom-houses. He carried out his orders, both to his and my satisfaction, in thorough- going fashion. On one occasion, when an insurgent force threatened to attack a town in which Americans had interests, he notified the com- manders on both sides that he would not permit any fighting in that town, but that he would appoint a certain place where they could meet and fight it out, and that the victors should have the town. They agreed to meet his wishes, the fight came off at the appointed place, and the victors, who if I remember rightly were the insurgents, were given the town. ' ' Roosevelt, Autobiography, 549. 45 Ogg, op.