CHAPTER XVI. 



The Power to Make Political Decisions in Foreign Affairs: 

 War and the Use of Force. 



A. The Power to Make War. 



206. The Power to Make War. 



Congress is given power " to declare war, grant letters of marque 

 and reprisal and make rules concerning captures on land and water," 

 and " to provide for calling forth the militia to execute the laws of 

 the union, suppress insurrection and repel invasions." " The Pres- 

 ident shall be 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 " and " he shall take 

 care that the laws be faithfully executed." ^ 



War has been defined as " the relation which exists between 

 states when there may lawfully be a properly conducted contest of 

 armed public forces." ^ It is thus to be distinguished from the use 

 of military force. Battles may be fought, vessels captured and 

 commerce embargoed without war, and on the other hand war may 

 exist without a gun fired or a vessel captured or a trade 

 route disturbed. The Supreme Court has distinguished the recog- 

 nition of " war in the material sense " from " war in the legal 

 sense." ^ We may thus regard war as a definite period of time 

 within which the abnormal international law of war and neutrality 

 has superseded normal international law. What authority in 

 the United States has power to begin and end this period of time? 



207. The Causation of War. 



We have noticed the distinction between " the existence of a con- 

 stitutional power and the existence of an ability to effect certain 



lU. S. Const., I, sec. 8, cl. 11, 15; H, sec. 2, cl. i, sec. 3. 



2 Wilson and Tucker, op. cit., p. 233. See also Grotins, De Jure Belli 

 ac Pacis, liv. I, c. i, par. 2; Vattel, Droit' des gens, liv. Ill, c. i, sec. i. 



3 The Three Friends, 166 U. S. i, supra, sec. 192, and Nelson, J., dissent 

 in the Prize Cases, 2 Black 635, 690. 



370 



