The same spirit which set at defiance great principles of International
Law, installing force instead, is equally manifest in disregard of the
Constitution of the United States; and here one of its most distinctive
principles is struck down. By the Constitution it is solemnly announced
that to Congress is given the power “to declare war.” This allotment of
power was made only after much consideration, and in obedience to those
popular rights consecrated by the American Revolution. In England,
and in all other monarchies at the time, this power was the exclusive
prerogative of the Crown, so that war was justly called “the last
reason of kings.” The framers of our Constitution naturally refused to
vest this kingly prerogative in the President. Kings were rejected in
substance as in name. The One-Man Power was set aside, and this kingly
prerogative placed under the safeguard of the people, as represented
in that highest form of national life, an Act of Congress. No other
provision in the Constitution is more distinctive, or more worthy of
veneration. I do not go too far, when I call it an essential element of
Republican Institutions, happily discovered by our fathers.
Our authoritative commentator, Judge Story, has explained the origin of
this provision, and his testimony confirms the statement I have made.
After remarking that the power to declare war is “not only _the highest
sovereign prerogative_, but that it is in its own nature and effects so
critical and calamitous that it requires the utmost deliberation and
the successive review of all the councils of the nation,” the learned
author remarks with singular point, that “it should be difficult in
a Republic to declare war,” and that, therefore, “the coöperation of
all the branches of the _legislative_ power ought upon principle to
be required in this, _the highest act of legislation_”; and he even
goes so far as to suggest still greater restriction, “as by requiring
a concurrence of two thirds of both Houses.”[80] There is no such
conservative requirement; but war can be declared only by a majority of
both Houses with the approbation of the President. There must be the
embodied will of the Legislative and the Executive,--in other words, of
Congress and the President. Not Congress alone, without the President,
can declare war; nor can the President alone, without Congress. Both
must concur; and here is the triumph of Republican Institutions.
But this distinctive principle of our Constitution and new-found
safeguard of popular rights has been set at nought by the President;
or rather, in rushing to the goal of his desires, he has overleaped it,
as if it were stubble.
In harmony with the whole transaction is the apology, which insists
that the President may do indirectly what he cannot do directly,--that
he may, according to old Polonius, “by indirections find directions
out,”--in short, that, though he cannot declare war directly, he may
indirectly. We are reminded of the unratified treaty, with its futile
promise “against foreign interposition,”--that is, with the promise of
the War Powers of our Government set in motion by the President alone,
without an Act of Congress. Here are the precise terms:--
“The people of the Dominican Republic shall, in the shortest
possible time, express, in a manner conformable to their laws,
their will concerning the cession herein provided for; and
the United States shall, until such expression shall be had,
_protect the Dominican Republic against foreign interposition_,
in order that the national expression may be free.”[81]
Now nothing can be clearer than that this provision, introduced on the
authority of the President alone, was beyond his powers, and therefore
_brutum fulmen_, a mere wooden gun, until after the ratification of the
treaty. Otherwise the President alone might declare war, without an
Act of Congress, doing indirectly what he cannot do directly, and thus
overturning that special safeguard which places under the guardianship
of Congress what Story justly calls “the highest sovereign prerogative.”
Here we meet another distinctive principle of our Constitution. As the
power to declare war is lodged in Congress with the concurrence of the
President, so is the power to make a treaty lodged in the President
with the concurrence of two thirds of the Senate. War is declared only
by Congress and the President; a treaty is made only by the President
and two thirds of the Senate. As the former safeguard was new, so
was the latter. In England and all other monarchies at the time, the
treaty-making power was a kingly prerogative, like the power to declare
war. The provision in our Constitution, requiring the participation
of the Senate, was another limitation of the One-Man Power, and a new
contribution to Republican Institutions.
“The Federalist,” in an article written by Alexander Hamilton, thus
describes the kingly prerogative:--
“The king of Great Britain is the sole and absolute
representative of the nation in all foreign transactions. He
can _of his own accord_ make treaties of peace, commerce,
alliance, and of every other description.… Every jurist of that
kingdom, and every other man acquainted with its Constitution,
knows, as an established fact, that the prerogative of making
treaties exists in the Crown in its utmost plenitude; and that
the compacts entered into by the royal authority have the most
complete legal validity and perfection, _independent of any
other sanction_.”[82]
Such was the well-known kingly prerogative which our Constitution
rejected. Here let “The Federalist” speak again:--
“There is no comparison between the intended power of the
President and the actual power of the British sovereign. The
one can perform alone what the other can only do with the
concurrence of a branch of the Legislature.”[83]
Then, again, after showing that a treaty is a contract with a foreign
nation, having the force of law, “The Federalist” proceeds:--
“The history of human conduct does not warrant that exalted
opinion of human virtue which would make it wise in a nation to
commit interests of so delicate and momentous a kind as those
which concern its intercourse with the rest of the world _to
the sole disposal of a magistrate created and circumstanced as
would be a President of the United States_.”[84]
Thus does this contemporary authority testify against handing over
to “the sole disposal” of the President the delicate and momentous
question in the unratified treaty.
Following “The Federalist” is the eminent commentator already cited,
who insists that “it is too much to expect that a free people
would confide to a single magistrate, however respectable, _the
sole authority_ to act conclusively, as well as exclusively, upon
the subject of treaties”; and that, “however proper it may be in a
monarchy, there is no American statesman but must feel that such
a prerogative in an American President would be inexpedient and
dangerous,”--that “it would be inconsistent with that wholesome
jealousy which all republics ought to cherish of all depositaries of
power”; and then he adds:--
“The check which acts upon the mind, _from the consideration
that what is done is but preliminary_, and requires the assent
of other independent minds _to give it a legal conclusiveness_,
is a restraint which awakens caution and compels to
deliberation.”[85]
The learned author then dwells with pride on the requirement of the
Constitution, which, while confiding the power to the Executive
Department, “guards it from serious abuse by placing it _under the
ultimate superintendence of a select body of high character and high
responsibility_”; and then, after remarking that “the President is
the immediate author and finisher of all treaties,” he concludes, in
decisive words, that “no treaty so formed _becomes binding upon the
country_, unless it receives the deliberate assent of two thirds of the
Senate.”[86]
Nothing can be more positive. Therefore, even at the expense of
repetition, I insist, that, as the power to declare war is under the
safeguard of Congress with the concurrence of the President, so is the
power to make a treaty in the President with the concurrence of two
thirds of the Senate,--but the act of neither becomes binding without
this concurrence. Thus, on grounds of authority, as well as of reason,
is it clear that the undertaking of the President to employ the War
Powers without the authority of Congress was void, and every employment
of these War Powers in pursuance thereof was a usurpation.
If the President were a king, with the kingly prerogative either to
declare war or to make treaties, he might do what he has done; but
being only President, with the limited powers established by the
Constitution, he cannot do it. The assumption in the Dominican treaty
is exceptional and abnormal, being absolutely without precedent. The
treaty with France in 1803 for the cession of Louisiana contained no
such assumption; nor did the treaty with Spain in 1819 for the cession
of Florida; nor did the treaty with Mexico in 1848, by which the title
to Texas and California was assured; nor did the treaty with Mexico
in 1853, by which new territory was obtained; nor did the treaty with
Russia in 1867 for the cession of her possessions in North America.
In none of these treaties was there any such assumption of power.
The Louisiana treaty stipulated that possession should be taken by
the United States “immediately after the ratification of the present
treaty by the President of the United States, and in case that of the
First Consul shall have been previously obtained.”[87] The Florida
treaty stipulated “six months after the exchange of the ratification
of this treaty, or sooner, if possible.”[88] But these stipulations,
by which possession on our part, with corresponding responsibilities,
was adjourned till after the exchange of ratifications, were simply
according to the dictate of reason, in harmony with the requirement of
our Constitution.
The case of Texas had two stages: first, under an unratified treaty;
and, secondly, under a Joint Resolution of Congress. What was done
under the latter had the concurrence of Congress and the President;
so that the inchoate title of the United States was created by Act of
Congress, in plain contradiction to the present case, where the title,
whatever it may be, is under an unratified treaty, _and is created
by the President alone_. Here is a manifest difference, not to be
forgotten.
During the pendency of the treaty, there was an attempt by John Tyler,
aided by his Secretary of State, John C. Calhoun, to commit the United
States to the military support of Texas. It was nothing but an attempt.
There was no belligerent intervention or act of war, but only what
Benton calls an “assumpsit” by Calhoun. On this “assumpsit” the veteran
Senator, in the memoirs of his Thirty Years in the Senate, breaks forth
in these indignant terms:--
“As to secretly lending the Army and Navy of the United States
to Texas to fight Mexico while we were at peace with her, it
would be a crime against God and man and our own Constitution,
for which heads might be brought to the block, if Presidents
and their Secretaries, like Constitutional Kings and Ministers,
should be held capitally responsible for capital crimes.”[89]
The indignant statesman, after exposing the unconstitutional
charlatanry of the attempt, proceeds:--
“And that no circumstance of contradiction or folly should
be wanting to crown this plot of crime and imbecility, it so
happened, that, on the same day that our new Secretary here was
giving his written assumpsit to lend the Army and Navy to fight
Mexico while we were at peace with her, the agent Murphy was
communicating to the Texan Government, in Texas, _the refusal
of Mr. Tyler, through Mr. Nelson, to do so, because of its
unconstitutionality_.”[90]
Mr. Nelson, Secretary of State _ad interim_, wrote Mr. Murphy, our
Minister in Texas, under date of March 11, 1844, that “the employment
of the Army or Navy against a foreign power with which the United
States are at peace is not within the competency of the President.”[91]