Evening star. [volume] (Washington, D.C.) 1854-1972, 1898-03-30

Constitutional Rights of Congress and
the President.
WHEN POWER MAY Be ASSUMED
Treatment Of Property Of Enemy's
Subjects.
SUSPENSION OF INTERCOURSE


relations between the United States and
Spain may speedily terminate in an open
declaration of war. by one of the parties,
has started general discussion as to the
precedents in that line the part of the
United States. War Is usually, but not
always. preceded by declaration thereof,
although the formal declaration of war,
which was borrowed from the Romans,
has gradually fallen into disuse. As in
this country, an act of Congress is neces-
sary to declare war, the passage of such an
act is a sufficient declaration thereof Ac-
ccrding to Daniel Webster, Secretary of
State: 1.-The war making power in this
government rests entirely with Congress-
and the President can authorize beliger-
ent operations only in the cases expressly
pre- vided for by the Constitution and the
law"
If, however, before war be declared by
Congress. the nation that has refused to
recognize the ultimatum, commits acts Of
dc probation or in contravention Of the law
existing between nations during a time Of
peace, then the President, without calling
upon Congress in the first instance, may
take such measures as he deems necessary
to protect the country and the interests
of it's citizens whether the same be in
foreign country, on the high seas or with
in the borders Of his country.
Powers OF the President.
In the prize cases Judge Black said, in
regard to this point:
by the Constitution, Congress alone has
the power to declare a national or foreign
war. The Constitution confers on the
President the whole executive power. He
Is bound to take care that the laws be
faithfully executed. He is commander-in-
chief of the army and navy of the United
States and Of the militia of the several
states when called into the actual service
of the United States. He has no power to
initiate or declare a war, either against
foreign nation or a domestic state, but by
the acts Of Congress of February %, 1905,
and March 3, 1907, he is authorized to call
out the militia and use the military and
naval forces of the United States in case
of invasion by foreign nations, and to sup
press instruction against the government
of a state of the United States.
"If war be made by the invasion of
foreign nation the President is not only
authorized but bound to resist force by
force. He does not initiate the war. but is
bound to accept the challenge without wait
ing for any special legislative authority;
and whether the hostile party be foreign
is none the less a war, although the dec
laration of it be 'unilateral.' Lord Stowell
observes: 1t is not the less war on that
account, for war may exist without dec
laration on either side. 1t Is so laid down
by the best writers on the law Of nations.
declaration by one country only is not a
mere challenge to be accepted or refused
at pleasure by the other.
"The battles of Palo Alto and Resaca de
la Palma had been fought Before the pas
sage of the act of Congress of May ID,
1916. which recognized a state of war as
existing by the act of the republic of Mex
ico.' This act not only::-preSfded for the
future prosecution of the war, but was
itself a vindication apd ratification of the
act Of the President In accepting the chai-
lenge without previous formal declara-
tion Of war by Congress-,
To Repel Hostile Acts.
1t THEREFORE appears that the latent and
implied power vested in the President as
commander-in-chief of the army and navy,
makes it incumbent upon him to instantly
repel every hostile act in the nature OF
war or Instruction, whether the act be
committed inside or outside Of the country.
Thus in the present instance, while Con-
gresS alone has the power to declare war,
the President need not of necessity delay
calling for troops to protect the country
after overt acts on the part Of Spain. This
was exemplified in the call for $1,000 troops
by President Lincoln in his proclamation of
April Is. 1861, although Congress did not
convene in extraordinary session until the
following 4th of July.
In December. 1905. President Jefferson.
in discussing Spanish depredations our
territory, said: considering that Congress
alone Is constitutionally invested with the
power of changing our conditions from
peace TO war, nave thought 1t my duty to
await their authority for using force In
any degree that could be avoided. 1 have
barely instructed the officers stationed in
the neighborhood of the aggressions to
protect our citizens from violence, to pa
troll within the borders actually delivered
to US, and not to go out of them, but.
when necessary, to repel an inroad or to
rescue citizen or his property
In lieu of war, limited hostilities NAV be
declared between nations; that Is. thew
may be declared as to places persons or
things. Although Such condition may be
a public war;" 1t ia usually described as
an imperfect war" Congress may de-
clare such war, or it may declare a gen
eral war;" the extent and operation of
which are restricted and regulated by the
law of nations alone
Laws of Civilized Warfare.
II general war is declared, the situation
is governed by the general laws of civilized
warfare. and everything that is recognized by
the international code of laws may be done
by one belligerent to cripple, weaken and
destroy the other. even to the confiscation
OF property on land and sea. AS a general
thing. the property of a citizen. of q belHg-
eIent nation found within the territory of
the other nation Is respected, as are the
owners life and liberty, but in this coun-
try such property could be confiscated by
Congress and the Supreme Court, il such