chant vessels, their crews and cargoes, against violent and lawless seizure and confiscation in the ports of Mexico and the Spanish-American states, when these countries may be in a disturbed and revolutionary condition. The mere knowledge that such an authority had been conferred, as I have already stated, would of itself, in a great degree, prevent the evil. Neither would this require any additional appropriation for the naval service. "The chief objection urged against the grant of this authority is that Congress, by conferring it, would violate the Constitution-that it would be a transfer of the war-making, or, strictly speaking, the war-declaring power to the Executive. If this were well founded it would, of course, be conclusive. A very brief examination, however, will place this objection at rest. Congress possess the sole and exclusive power under the Constitution 'to declare war.' They alone can raise and support armies,' and 'provide and maintain a navy.' But after Congress shall have declared war, and provided the force necessary to carry it on, the President, as commander-in-chief of the Army and Navy, can alone employ this force in making war against the enemy. This is the plain language, and history proves that it was the well-known intention of the framers of the Constitution." President Buchanan, Third Annual Message, 1859. Mr. Calhoun's report, on June 3, 1812, on behalf of the House Committee on The correspondence between the American legation at London, and Lord Wel- The correspondence with the British Government, after the declaration of war of June 18, 1812, for the purpose of suspending hostilities, is given in 3 Am. St. Pap. (For. Rel.), 585 ff. Under the seventh section of the act of 1799 (1 Stat. L., 716, repealed, see Rev. Stat., § 4652), France was to be deemed an enemy of the United States in March, 1799. Bas. v. Tingy, 4 Dall., 37, 39. Sec discussion of this case, supra, § 248. "By the Constitution Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers ou the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is 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. He has no power to initiate or declare a war, either against a foreign nation or a domestic State, but by the acts of Congress of February 28, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrections against the government of a State or of the United States. "If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority; and whether the hostile party be a foreign invader or States organized in rebellion it is none the less a war, although the declaration of it be unilateral! Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other. "The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized a state of war as existing by the act of the Republic of Mexico. This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the act of the President in accepting the challenge without a previous formal declaration of war by Congress." Grier, J.; The Prize Cases, 2 Black, 668, Dec., 1862. 'A public war, within the Constitution and the rules and articles of war, has existed with the Seminoles since the day Congress recognized their hostilities and appropriated money to suppress them. 3 Op., 307, Butler, 1838. The war between the United States and Mexico was begun by a military conflict in the disputed territory, and the act of Congress declaring war was not passed until after such collision. (See 2 Twiss, Law of Nat., 69; Abdy's Kent (1878), 172.) Supra, §§ 58, 154. On the subject of war without declaration see Mr. Maurice's "Hostilities without Declaration of War," an abstract of the cases in which hostilities have occurred between civilized powers prior to declaration or warning from 1700 to 1870, and review of same by Professor Holland, Revue de droit int., 1885, No. 6, 63–5. See also "Des Hostilités sans déclaration de guerre," by M. Ferand-Giraud, Revue de droit int. for 1885, No. 1, 19. (3) BUT NOT PRACTICALLY ESSENTIAL. § 335. On June 23, 1798, after receiving the message of the President announcing the suspension of diplomatic intercourse with France, Congress authorized the President to officer and arm the "provisional army." On June 25, our merchant vessels were authorized to resist bv force "any search, restraint, or seizure" from any vessel sailing under French colors, and to capture or recapture such vessels. On June 28, the President was authorized to treat persons captured in such vessels as prisoners of war. Prisoners so taken were duly exchanged. Supra, §§ 228, 248. "And whereas actual hostilities have long been practiced on the commerce of the United States by the cruisers of the French Republic under the orders of its Government, which orders that Government refuses to revoke or relax; and hence it has become improper any longer to allow the consul-general, consuls, and vice-consuls of the French Republic above-named, or any of its consular persons or agents hereto. fore admitted in these United States any longer to exercise their consular functions; these are therefore to declare that I do no longer recognize the said citizen Letombe as consul-general or consul, nor the said citizens Rosier and Arcambal as vice-consuls, nor the said citizen Mozard as consul of the French Republic in any part of these United States, nor permit them or any other consular persons or agents of the French Republic, heretofore admitted in the United States, to exercise their functions as such; and I do hereby wholly revoke the exequaturs heretofore given to them respectively and do declare them absolutely null and void from this day forward." Proclamation of July 13, 1798. 9 John Adams's Works, 171. "I think it clear that whatsoever misunderstanding existed between the United States and France (from 1798 to 1800) it did not amount at any time to open and public war. It is certain that the amicable relations of the two countries were very much disturbed; it is certain that the United States authorized armed resistance to French captures, and the capture of French vessels-of-war found hovering on our coasts; but it is certain also, not only that there was no declaration of war on either side, but that the United States, under all their provocations, never authorized general reprisals on French commerce. At the very mo. ment when the gentleman says war raged between the United States and France, French citizens came into our courts, in their own names claimed restitution for property seized by American cruisers, and obtained decrees of restitution. They claimed as citizens of France, and obtained restitution in our courts as citizens of France." The act of May 28, 1798, "it is true, authorized the use of force, under certain circumstances, and for certain objects, against French vessels. But there may be acts of authorized force, there may be assaults, there may be battles, there may be captures of ships and imprisonment of persons, and yet no general war. Cases of this kind may occur under that practice of retorsion which is justified, when adopted for just cause, by the laws and usages of nations, and which all the writers distinguish from general war." "On the same day in which this act was passed, Congress passed another act entitled 'An act authorizing the President of the United States to raise a provisional army,' and the first section declared that the President should be authorized in the event of a declaration of war against the United States or of actual invasion of this territory by a foreign power, or of imminent danger of such invasion,' to cause to be enlisted ten thousand men." Mr. Webster also called attention to the fact that by the act of February 20, 1800, war was still spoken of as a future contingency; and on May 11, 1800, further warlike preparations were stopped. Mr. Webster's speech on French spoliations, 4 Webster's Works, 163–5. As to the spoliations in question, see supra, § 248. See "The controversy turned on whether France was an enemy of the United States, within the meaning of the law. (See further, as to the effect of this war in extinguishing prior claims, Webster's Works, iv., 162. Benton's Thirty Years in the Senate, 487, 494-509. Cong. Globe, 1854-55, 372. Ibid., Index, 120.)" Lawrence's Wheaton (ed. 1863), 878. In the Brit. and For. St. Pap. of 1812-'14 (vol. i) will be found the legislation of Congress prior to the war of 1812; the correspondence with Great Britain relative to overtures for a suspension of hostilities; the correspondence with Russia as to mediation, and with Great Britain between November, 1813, and December, 1814; the several messages of the President as to the war, the correspondence with the commissioners at Ghent, and reports to the Secretaries of the Navy, of War, and of the Treasury, in their respective Departments, during the war. In the same work, for 1814-'15 (vol. 2), are to be found the action of the Government of the United States on the peace of 1815, and the act of Congress of February 18, 1815, relative to the exclusion of foreign seamen from American vessels. A naval officer of the United States cannot resort to force to compel delivery to him of American seamen unjustly imprisoned on a vessel in a foreign port. His duty is to demand the delivery of such seamen, and if this is refused, to resort to the civil authorities. He can, however, if there is an attempt forcibly to seize such seamen from their own vessels, forcibly intervene. "The employment of force is justifiable in resisting aggressions before they are complete. But if they are consummated, the intervention of the authority of Government becomes necessary if redress is refused by the aggressor." Mr. Clay, Sec. of State, to Mr. Rebello, Mar. 22, 1827. MSS. Notes, For. Leg. "To this state of general peace with which we have been blessed one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war, on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger." President Jefferson, First Annual Message, 1801. "It is certain that a condition of war can be raised without an authoritative declaration of war, and, on the other hand, the situation of peace may be restored by the long suspension of hostilities, without a treaty of peace being made. History is full of such occurrences. What period of suspension of war is necessary to justify the presumption of the restoration of peace has never yet been settled, and must in every case be determined with reference to collateral facts and circumstances. "The proceedings of Spain and Chili which have been referred to, although inconclusive, require an explanation on the part of either of those powers which shall insist that the condition of war still exists. Peru, equally with Spain, has as absolute a right to decline the good offices or mediation of the United States for peace as either has to accept the same. The refusal of either would be inconclusive as an evidence of determination to resume or continue the war. It is the interest of the the United States, and of all nations, that the return of peace, however it may be brought about, shall be accepted whenever it has become clearly established. Whenever the United States shall find itself obliged to decide the question whether the war still exists between Spain and Peru, or whether that war has come to an end, it will make that decision only after having carefully examined all the pertinent facts which shall be within its reach, and after having given due consideration to such representations as shall have been made by the several parties inter ested." Mr. Seward, Sec. of State, to Mr. Goñi, July 22, 1868. MSS. Notes, Spain; Dip. Corr., 1868. "Now, if this be the true definition of war, let us see what was the situation of the United States in relation to France. In March, 1799, Congress had raised an army; stopped all intercourse with France; dissolved our treaty; built and equipped ships-of-war, and commissioned private armed ships, enjoining the former and authorizing the latter to defend themselves against the armed ships of France, to attack them on the high seas, to subdue and take them as prize, and to recapture armed vessels found in their possession. Here, then, let me ask, what were the technical characters of an American and French armed vessel, combating on the high seas, with a view the one to subdue the other, and to make prize of his property? They certainly were not friends, because there was a contention by force; nor were they private enemies, because the contention was external, and authorized by the legitimate authority of the two Governments. If they were not our enemies I know not what What, then, is the evidence of legis constitutes an enemy. lative will? In fact and in law we are at war." Washington, J.; Bas v. Tingy, 4 Dall., 34. See as to this question in relation to French spoliations, supra, § 248. In the Prize Cases, 2 Black, 636, it was held by the majority of the court that the late civil war began with the President's proclamation of |