As things not made for him, claims all by arms”;
and he quotes Lucan also, who shows a soldier exclaiming:—
“Now, Peace and Law, I bid you both farewell.”
The old Antigonus, who, when besieging a city, laughed at a man who brought him a dissertation on Justice, and Pompey, who exclaimed, “Am I, when in arms, to think of the laws?”[79]—these seem to be the models for our Government on the coasts of San Domingo.
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]