USURPATION OF WAR POWERS CONTRARY TO THE CONSTITUTION.
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]
Again Benton says:—
“The engagement to fight Mexico for Texas, while we were at peace with Mexico, was to make war with Mexico!—a piece of business which belonged to the Congress, and which should have been referred to them, and which, on the contrary, was concealed from them, though in session and present.”[92]
In the face of this indignant judgment, already the undying voice of history, the “assumpsit” of John C. Calhoun will not be accepted as a proper example for a Republican President. But there is not a word of that powerful utterance by which this act is forever blasted that is not strictly applicable to the “assumpsit” in the case of Dominica. If an engagement to fight Mexico for Texas, while we were at peace with Mexico, was nothing less than war with Mexico, so the present engagement to fight Hayti for Dominica, while we are at peace with Hayti, is nothing less than war with Hayti. Nor is it any the less “a crime against God and man and our own Constitution” in the case of Hayti than in the case of Mexico. But the present case is stronger than that which aroused the fervid energies of Benton. The “assumpsit” here has been followed by belligerent intervention and acts of war.
President Polk, in his Annual Message of December, 1846, paid homage to the true principle, when he announced that “the moment the terms of annexation offered by the United States were accepted by Texas, the latter became so far a part of our own country as to make it our duty to afford protection and defence.”[93] And accordingly he directed those military and naval movements which ended in war with Mexico. But it will be observed here that these movements were conditioned on the acceptance by Texas of the terms of annexion definitively proposed by the United States, while our title had been created by Act of Congress, and not by the President alone.
Therefore, according to the precedents of our history, reinforced by reason and authority, does the “assumpsit” of the treaty fail. I forbear from characterizing it. My duty is performed, if I exhibit it to the Senate.
But this story of a violated Constitution is not yet complete. Even admitting some remote infinitesimal semblance of excuse or apology during the pendency of the treaty, all of which I insist is absurd beyond question, though not entirely impossible in a quarter unused to constitutional questions and heeding them little,—conceding that the “assumpsit” inserted in the treaty by the Secretary of State had deceived the President into the idea that he possessed the kingly prerogative of declaring war at his own mere motion,—and wishing to deal most gently even with an undoubted usurpation of the kingly prerogative, so long as the Secretary of State, sworn counsellor of the President, supplied the formula for the usurpation, (and you will bear witness that I have done nothing but state the case,)—it is hard to hold back, when the same usurpation is openly prolonged after the Senate had rejected the treaty on which the exercise of the kingly prerogative was founded, and when the “assumpsit” devised by the Secretary of State had passed into the limbo of things lost on earth. Here there is no remote infinitesimal semblance of excuse or apology,—nothing,—absolutely nothing. The usurpation pivots on nonentity,—always excepting the kingly will of the President, which constitutionally is a nonentity. The great artist of Bologna, in a much admired statue, sculptured Mercury as standing on a puff of air. The President has not even a puff of air to stand on.
Nor is there any question with regard to the facts. Saying nothing of the lapse of the treaty on the 29th March, 1870, being the expiration of the period for the exchange of ratifications, I refer to its formal rejection by the Senate, June 30, 1870, which was not unknown to the President. In the order of business the rejection was communicated to him, while it became at once matter of universal notoriety. Then, by way of further fixing the President with this notice, I refer to his own admission in the Annual Message of December last, when he announces that “during the last session of Congress a treaty for the annexation of the Republic of San Domingo to the United States failed to receive the requisite two-thirds of the Senate,” and then, after denouncing the rejection as “folly,” he proceeds as follows:—
“My suggestion is, that by Joint Resolution of the two Houses of Congress the Executive be authorized to appoint a Commission to negotiate a treaty with the authorities of San Domingo for the acquisition of that island, and that an appropriation be made to defray the expenses of such Commission. The question may then be determined, either by the action of the Senate upon the treaty, or the joint action of the two Houses of Congress upon a resolution of annexation, as in the case of the acquisition of Texas.”
Thus by the open declaration of the President was the treaty rejected, while six months after the rejection he asks for a Commission to negotiate a new treaty, and an appropriation to defray the expenses of the Commission; and not perceiving the inapplicability of the Texas precedent, he proposes to do the deed by Joint Resolution of Congress. And yet during this intermediate period, when there was no unratified treaty extant, the same belligerent intervention has been proceeding, the same war-ships have been girdling the island with their guns, and the same naval support has been continued to the usurper Baez,—all at great cost to the country and by the diversion of our naval forces from other places of duty, while the Constitution has been dismissed out of sight like a discharged soldier.
Already you have seen how this belligerent intervention proceeded after the rejection of the treaty; how on the 21st July, 1870, Commodore Green reported that “a withdrawal of the protection of the United States and of the prospect of annexation at some future time would instantly lead to a revolution headed by Cabral”; how on the 28th August, 1870, Lieutenant Commander Allen reported Baez as “requesting the presence of a vessel on the north side of the island on account of an intended invasion by Cabral”; how at the same time the usurper cries out that he “deems the presence of a ship-of-war in the Bay of Manzanillo of immediate importance”; how on the 3d September, 1870, Commander Irwin reported that Baez “feared an outbreak,” and appealed to the Commander to “bring him some of his men that were at Azua,” which the obliging Commander did; how under date of September 2, 1870, the usurper, after declaring the necessity of a man-of-war at the port of San Domingo, says that “none would be more convenient than the Yantic for the facility of entering the river Ozama, owing to her size”; and how again under date of October 8, 1870, the usurper writes still another letter “to reiterate the necessity of the vessels now in that bay [Samana] coming to these southern coasts.” All these things you have seen, attesting constantly our belligerent intervention and the maintenance of Baez in power by our Navy, which became his body-guard and omnipresent upholder, and all after the rejection of the treaty. I leave them to your judgment without one word of comment, reminding you only that no President is entitled to substitute his kingly will for the Constitution of our country.
In curious confirmation of the first conclusion from the official document, the letter of Captain Temple to Mr. Wade should not be forgotten. This letter has found its way into the papers, and if not genuine, it ought to be. It purports to be dated, Tennessee, Azua Bay, February 24, 1871. Here is the first paragraph:—
“I understand that several of the gentlemen belonging to the expedition are to start to-morrow overland for Port-au-Prince. It may not have occurred to these gentlemen that by so doing they will virtually place themselves in the position of spies, and if they are taken by Cabral’s people, they can be hung to the nearest tree by sentence of a drum-head court-martial, according to all the rules of civilized warfare. For they belong to a nation that, through the orders of its Executive to the naval vessels here, has chosen to take part in the internal conflicts of this country; they come directly from the head-quarters of Cabral’s enemies; they are without arms, uniform, or authority of any kind for being in a hostile region. They are, in fact, spies. They go expressly to learn everything connected with the enemy’s country, and their observations are intended for publication, and thus indirectly to be reported back to President Baez. Surely Cabral would have a right to prevent this, if he can.”
It will be seen that the gallant Captain does not hesitate to recognize the existing rights of Cabral under the Laws of War, and to warn against any journey by members of the Commission across the island to Hayti,—as, if taken by Cabral’s people, they could be hung to the nearest tree by sentence of drum-head court-martial, “according to all the rules of civilized warfare”; and the Captain gives the reason: “For they belong to a nation that, through the orders of its Executive to the naval vessels here, has chosen to take part in the internal conflicts of this country.” Here is belligerent intervention openly recognized by the gallant Captain, and without the authority of Congress. If the gallant Captain wrote the letter, he showed himself a master of International Law whom Senators might do well to follow. If he did not write it, the instructive jest will at least relieve the weariness of this discussion.