informing Congress of the state of our relations with the Power against which war may be declared. The second is the doings of Congress in making the declaration, and the third is the approval of the declaration by the President.

The second stage has become much more important since the Hague Convention of 1907, ratified by us and by Germany and Austria-Hungary in 1909, which requires the declaration, if not connected with an ultimatum, to state the reasons (motifs) for its adoption. The President, it may be assumed, if he recommends a declaration of war, will always state what seem to him the reasonable grounds for it. Congress may coincide with him in his views and give the same reasons for its action which the President has given. It may, however, coincide with him in his conclusion, but prefer to rest the declaration on a part only of the grounds specified by him, or even on grounds not stated by him at all. He has had his say, and Congress is now to speak and to speak decisively, subject always to the conditional veto.

Whenever a declaration of war has been enacted and approved, it unquestionably becomes the right and duty of the President to give public notice of it to all neutral Powers. To the Power against which war is declared no formal notice is absolutely necessary before the opening of hostilities, nor indeed ever. It will hear of it soon enough through channels of information open to all.

The most important thing here is to give notice of the fact of the declaration, and the time of its going into effect. It is less necessary to specify immediately the grounds on which it rests. As to what these are, is the declaration itself now the sole evidence? Or can the President, in making his announcements to foreign nations, add to or subtract from those declared by Congress to support its action?

"Results, not processes," Samuel Warren once wrote, "are for the eye of the world." It must be remembered that in announcing a declaration of war, the chief end in view is to state the fact of the existence of war, as evidenced by such a declaration. The grounds for it, or the want of grounds for it, have become, for the time being, comparatively unimportant.

John Bassett Moore begins his consideration of the title "War" in his Digest of International Law, by this remark:

Much confusion may be avoided by bearing in mind the fact that by the term "War" is meant not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force.'

A declaration of war announces, or creates and announces, such a legal condition of things. It may or may not go into further particulars, according to the position of the government making it, in regard to the Hague Convention of 1907. If it states what constitutes this legal condition, and purports to describe the controlling facts leading up to the declaration, its validity and effect will not depend on the truth or falsity or relevancy of what may be set forth in its assignment of causes. They are mentioned merely to give public notice of the grievances which the nation making it claims to have suffered from the nation against which it is directed.

A declaration of war at once charges the President with a double responsibility. In addition to his holding the civil executive power, he must now assume the supreme direction and command of military and naval activities. This, however, he takes subject to limitations not ordinarily existing in other countries.

As the Supreme Court of the United States has held in a leading case, the duty and power of the President under a declaration of war are "purely military," and if he makes conquests they cannot

extend the operation of our institutions and laws beyond the limits. before assigned to them by the legislative power. . . . The genesis and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purpose of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. . . . A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States, by subjugating the enemy's country. 10

The war power, however, as shared between the President and Congress, is not limited to achieving military successes. "It carries with it inherently the power to guard against the immediate renewal of the

9 VII, 153.

10 Fleming v. Page, 9 How., 603, 614.

conflict, and to remedy the evils which have arisen from its rise and progress." 11

As the war power is shared between the President and Congress, but Congress does not share in the executive power, the breadth of the President's prerogatives as to the closing of a war becomes of special importance. The limits imposed directly by the Constitution are few; its main one being the requirement of the consent of the Senate. Those imposed by implication are, so far as the courts have thus far spoken, also few, but of high importance.

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.12

The preamble of the Constitution must also be considered in this connection. "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." May this be construed to include a delegation of power to declare war in order to secure liberty to foreign peoples? Our war with Spain assumed that there is such a power, and the assumption met with general public acquiescence. It was made by the President, this year, in advising the declaration of war by the United States against Germany and AustriaHungary; repeated in his public letters and addresses, and has a strong current of public sentiment in its support. In view of the general trend of opinion as to enlarging the functions of the general government, it is quite unlikely that the courts will ever take a different view.

To make a declaration of war requires the assent of Congress as well as of the President. To end a war, it is enough for him to obtain the assent of the Senate, if he acts under the treaty-making power. Peace could, no doubt, also be restored by an Act of Congress. As a declara

11 Stewart v. Kahn, 11 Wall., 493, 507. 12 Ex parte Milligan, 4 Wall., 2, 120.

tion of war takes the shape with us of a statute, it would seem that it can be repealed by a statute. Its normal effect can also be subjected to limitations and exceptions resting on the authority of the President alone.

While the general and natural mode of ending a war is by treaty, peace may presumably be secured also by an absolute conquest followed by the destruction of the enemy's government. So far as concerns the United States, however, this would seem excluded by the doctrine of Fleming v. Page, unless what had been, for the time being, held as enemy's territory should be only taken to be turned over to such new government as the inhabitants might agree to institute.

SIMEON E. BALDWIN.

ADDRESSES BY ELIHU ROOT ON INTERNATIONAL

SUBJECTS 1

1

THE first impression that we obtain upon opening this book is one rather of surprise at the extraordinarily wide range of subjects which Mr. Root has treated in the course of his addresses and speeches on international questions, to which the volume is confined, a range that covers the ground and sets forth the essential facts as well as the arguments which have served to build up American public opinion and to direct the international thought of this country for almost a generation. The relations with Japan, the Panama Canal, the Conferences at The Hague, the rights and duties of nations, and the protection of citizens residing abroad, have filled a large part of public attention during the last quarter of a century; indeed, some of the questions included here, like the intercourse with Mexico and the Monroe Doctrine, have held the public interest since long before our own time.

Whilst these addresses have been brought together in one general classification under the title of the present volume, they are distinguishable in fact and may be separated into two sets of intellectual production, - and this by the method of Mr. Root himself in his treatment of them, -the one argumentative, as, for example, "The obligations of the United States as to Panama Canal Tolls," "The Treaty with Russia of 1832," the two discussions of the Ship Purchase Bill, and "The Mexican Revolution," all speeches delivered by him in his place in the United States Senate; and the other containing those thoughtfully prepared and highly finished essays presented by him on various public occasions or as presidential addresses at the annual meetings, during several successive years, of the American Society of International Law, which

1 Collected and edited by Robert Bacon and James Brown Scott. Harvard University Press, 1916, pp. ix, 463.

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