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EDITORIAL COMMENT:

Argentina and Germany: Dr. Drago's Views. James Brown Scott..... 140

The espionage act. Charles Cheney Hyde........................... 142

The custodian under the trading with the enemy act. T. 8. Woolsey...

The international relations of Japan, China, and the United States.

James Brown Scott............................... ..........

Treatment of enemy aliens. Amos 8. Hershey........... ......... 156

War and law. Philip Marshall Brown.........

War between Austria-Hungary and the United States. James Brown

Scott...............

..................

Foreign enlistments in the United States. James Brown Scott....... 172

International law and the war: Meeting of the Executive Council.....

Requisitioning of Dutch ships by the United States. James Brown Scott. 340

Dual Citizenship in the German Imperial and State citizenship law.

David Jayne Hill................................

356

The Trading-with-the-Enemy Act. Chandler P. Anderson.....

363

Alsace-Lorraine. James Brown Scott......

Sir Graham Bower on prize law changes. Theodore 8. Woolsey...... 371

Proposed Neutrality of France at the beginning of the war. James

Brown Scott...

.......... 375

The defence of international law. George Grafton Wilson........ 378

The closing of the Central American Court of Justice. James Brown

Scott...................................

..... 380

Treatment of prisoners. Theodore 8. Woolsey...

382

The Nobel Peace Prize. James Brown Scott .........

383

The dawn in Germany? The Lichnowsky and other disclosures. James

Brown Scott.........................

Lord Haldane's diary of negotiations between Germany and England

in 1912. James Brown Scott.........

689

The German-Swiss commercial agreement. Theodore 8. Woolsey ....... 596

Private peace parleys. James Brown Scott....

The German demand for Rintelen. Charles Cheney Hyde......... 602

In Memoriam-Louis Renault. James Browon Scott........

606

The Severance of diplomatic relations between Peru and Germany. Juan

Bautista de Lavalle ...............

........... 610

The amendment of the naturalization and citizenship acts with respect

to military service. James Brown Scott....

Suits between States. James Brown Scott..........

619

The case of the Lusitania. George G. Wilson..

813

Legal status of the Brest-Litovsk and Bucharest treaties. Amos S.

Hershey ................................ .......

The Egyptian capitulations. Philip Marshall Brown.

820

The military service conventions. Lester H. Woolsey...

824

British justice in Palestine. Philip Marshall Brown.......

828

Dr. Restrepo's views of the relations between Latin America and the

United States. James Brown Scott............................

832

Lord Haldane's diary of negotiations between Germany and England

in 1912. James Brown Scott...

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BOOK REVIEWS:

Hill: The Rebuilding of Europe. A survey of Forces and Conditions..... 211

Hart: The Monroe Doctrine: An Interpretation..

Evans: Leading Cases on International Law.... .......... 220

Roxburgh: International Conventions and Third States......

222

Stephen: War in Disguise; or the Frauds of the Neutral Flags..

224

Müller: Die Volkerrechtliche Stellung des Papstes und die Friedens-

konferenzen.....

226

Catellani: L'Italia e l'Austria in Guerra.....

227

Chitwood: The Immediate Causes of the Great War..

228

Doran and Company: The Deportation of Women and Girls from Lille. 229

Organisation centrale pour une Paix durable: Recueil de Rapports sur

les différents points du Programme-Minimum ......

230

Omond: The Law of the Sea..

Elliott: The Philippines.....

..........

Rogers: America's Case against Germany.....

433

Suárez: Los Extranjeros en Venezuela.....

Rodriguez: Teoria Crítica de las Bases del Derecho Internacional Privado.

Lévy-Ullmann: Élements d'Introduction générale à l'Étude des Sciences

juridiques..................

Grotius Society: Problems of the War............

Gutierrez: La Neutralidad y la Beligerancia de la República de Cuba

durante la Guerra actual...... ....

......... 442

Scott: Survey of International Relations between the United States

and Germany...........................

Huberich: The Law relating to Trading with the Enemy............. 676

Phillimore: Three Centuries of Treaties of Peace and their Teaching...

Nippold: Die Gestaltung des Völkerrechts nach dem Weltkrieg...... 689

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THE AMERICAN JOURNAL OF INTERNATIONAL LAW is supplied to all members
of the American Society of International Law without extra charge, as the mem.
bership fee of five dollars per annum includes the right to all issues of the
JOURNAL published during the year for which the dues are paid. (Members
residing in foreign countries pay one dollar extra per annum to cover foreign
postage.)

The annual subscription to non-members of the Society is five dollars per
annum (one dollar extra is charged for foreign postage), and should be placed
with the publishers, the Oxford University Press, American Branch, 35 West
32nd Street, New York City.

Single copies of the JOURNAL will be supplied by the publishers at $1.25
per copy.

Applications for membership in the Society, correspondence with reference to
the JOURNAL, and books for review should be sent to James Brown Scott, Editor
in Chief, 2 Jackson Place, Washington, D. C.

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

War.

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

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

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

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

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