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United States District Court, New York:
THE AMERICAN JOURNAL OF INTERNATIONAL LAW is supplied to all members
The annual subscription to non-members of the Society is five dollars per
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THE SHARE OF THE PRESIDENT OF THE UNITED STATES
IN A DECLARATION OF WAR
A SUBJECT of warm debate in the convention which framed the Constitution of the United States was where the power of making or declaring war should be vested.
The committee of detail reported in favor of giving Congress power "to make war.” Pinkney opposed this on the floor, preferring to bestow it on the Senate. That this was also the view of Hamilton appears in the draft of a constitution which he gave to Madison, towards the close of the convention. In the debate on the report, Pinkney urged that it “would be singular for one authority to make war, and another, peace.” Butler, who followed him, thought the President was the proper depositary. It was then moved to make the clause read “to declare war," instead of "to make war." Gerry said that he had “never expected to hear in a republic a motion to empower the executive alone to declare war.” Mason thought that neither the executive nor the Senate could safely be intrusted with the power of war; and finally the word declare was substituted for make by the large majority of States.
As a declaration of war takes thus the shape of a special Act of Congress, it requires, like any other bill, order, vote, or resolution, the approval of the President. It must be then the product of an agreement of mind between three depositaries of governmental power. The two Houses of Congress first successively agree, and the President then manifests his assent.
It will be remembered that a formal declaration of war, until recently, was not, as a matter of international law, necessary or indeed usual. Most wars during the eighteenth and nineteenth centuries were fought
1 Farrand, Records of the Federal Convention, III, 619, 622.
Ibid., II, 143, 168, 182; Elliot, Debates, V, 439.
under the rule of a word and a blow, with the blow coming first and the word possibly left unsaid.3
The United States, since it adopted its present Constitution, has been engaged in eight foreign wars.
The first, coming at the close of the eighteenth century (1798-1800), was a limited or imperfect war, as distinguished from a general war. Congress authorized acts of hostility on the sea against vessels of France by way of reprisal, without any formal declaration of war. "Such a declaration by Congress might have constituted a perfect state of war, which was not intended by the government.” 4The reasons of the action taken by Congress were stated; namely, “depredations on the commerce of the United States," and captures of American vessels “in violation of the law of nations and treaties between the United States and the French nation.”
The second war was with Tripoli (1800-1805). She declared war against us. We recognized a state of war as existing, but acted only on the defensive, through a naval expedition, and made, ourselves, no formal declaration of war.
The third war was against Algiers, and our action (Act of March 3, 1815) was substantially the same as that in the case of the Tripolitan
The fourth war was that of 1812 with Great Britain. Congress then made a declaration of the existence of war between the two countries. No statement was made as to its causes or objects (Act of June 18, 1812).
The fifth was the Mexican War. Here the President informed Congress that Mexico had invaded the United States and that a state of war existed. Congress responded by an Act (of May 13, 1846) reciting that war existed by the act of Mexico and providing for the support of hostilities. A motion in the House of Representatives for a declaration of war was rejected by a large majority. The House of Representatives in the next Congress, on January 31, 1848, passed a resolution “that the war was unnecessarily and unconstitutionally begun
3 Woolsey, Introduction to the Study of International Law, sec. 115; Calvo, Le Droit International, IV, secs. 1903 et seq.; Takahashi, International Law applied to the Russo-Japanese War, Chap. 1, sec. 1; this JOURNAL, 2: 57.
Bas v. Tingy, 4 Dallas, 37: see Talbot v. Seaman, 1 Cranch, 1.