MINUTES. xvii 



There is yet another question to which I feel obliged to advert, 

 and that is the question of the President's power to use force in our 

 foreign relations. By the constitution of the United States the 

 power to declare war is vested in the Congress. Sometimes orators 

 and writers speak of " recognizing the existence of a state of war," 

 as if this differed from declaring war; but the co-existence of the 

 two phrases may be ascribed to motives of political strategy rather 

 than to any belief or supposition that they denoted different legal 

 conceptions. In reality the word " war " comprehends two mean- 

 ings. It denotes (i) acts of war, and (2) the international condi- 

 tion of things called a " state of war." Acts of war do not always 

 or necessarily develop into the general international condition of 

 things called a state of war, but they are nevertheless war and in- 

 volve the " making " of war in a legal sense. The fact is notorious 

 that in many instances hostilities or war de facto have long preceded 

 the formal declaration of war, and that when the declaration was 

 made it was regarded as relating back to the time when hostilities 

 began. As was shown by Lieut. Col. Maurice, of the British War 

 Office, in his " Hostilities without Declaration of War," published 

 in London in 1883, there were less than ten clear instances in the 

 hundred and seventy-one years, from 1700 to 1870, inclusive, where 

 a declaration of war preceded hostilities or the actual making of 

 war. This served to kill the project then pending for the building 

 of a tunnel under the English Channel between Great Britain and 

 France. 



There can hardly be room for doubt that the framers of the 

 constitution, when they vested in the Congress the power to declare 

 war, never imagined that they were leaving it to the executive to 

 use the military and naval forces of the United States all over the 

 world for the purpose of actually coercing other nations, occupying 

 their territory, and killing their soldiers and citizens, all according 

 to his own notions of the fitness of things, so long as he refrained 

 from calling his action war or persisted in calling it peace. I will 

 take the specific case which the author of the essay mentions of the 

 capture and occupation of Vera Cruz in April, 19.14, by the forces 

 of the United States. The author discusses the question whether 



