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The Power to Declare Neutrality Under American Law
Published online by Cambridge University Press: 12 April 2017
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1 See this Journal, Supp., Vol. 34 (Jan., 1940), p. 44.
2 The recognition of a foreign war by the United States is here treated as identical with the recognition of American neutrality in respect to that war, i.e., if it is “war” and the United States does not wish to become a belligerent, it must be “neutral.” If, on the other hand, the United States does not want to be neutral, foreign hostilities may be recognized as insurgency, aggression, intervention, reprisals, or something other than “war.” This development of numerous classes of hostilities different from “a state of war” has added to the degree of political discretion involved in such recognitions.
3 See Act of June 4,1794 ( Deák, and Jessup, , A Collection of Neutrality Laws, Regulations and Treaties of Various Countries (Washington, 1939), Vol. 2, p. 1118)Google Scholar; Joint Resolution, March 14, 1912 (ibid., p. 1089); Jan. 31,1922 (ibid., p. 1095); May 28,1934 (ibid., p. 1143).
4 This amended the Act of August 31, 1935. See notes 18,19, infra.
5 Deák and Jessup, op. cit., Vol. 2, p. 1079.
6 Ibid., p. 1085. With minor modifications, this Act was incorporated in the Revised Statues of 1874 (Secs. 5281–5291), in the Criminal Code of 1909 (Secs. 9–18), and in the U. S. Code of 1934 (Tit. 18, Secs. 21–30).
7 The Three Friends, 166 U. S. 1 (1897). It was interpreted to apply only to service in behalf of insurgents against a recognized government, not to service in behalf of a recognized government against insurgents, although literally the text applies both ways. The Caron-delet, 37 Fed. 799; The Conserva, 38 Fed. 431; Hoar, Atty. Gen., 1869, 13 Op. 177; Moore, Int. Law Digest, Vol. 7, pp. 904, 1076, 1079; Fenwick, C. G., The Neutrality Laws of the United States (1913), p. 75 Google Scholar.
8 This might also be supposed from the early assumption that the courts could exercise a common law jurisdiction to punish offenses against neutrality (In re Henfield, Fed. Cas. 6360 (1793); Wright, Q., Enforcement of International Law through Municipal Law (1916), p. 115)Google Scholar, and from the explicit grants of jurisdiction to the courts by the Act (Arts. 6, 7).
9 Moore, op cit., Vol. 5, p. 589.
10 Ibid., Vol. 7, p. 1002; Deák and Jessup, op. cit., Vol. 2, p. 1172. This begins: “Whereas it appears that a state of war exists between … and the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers. …”
11 Jefferson to Monroe, July 14, 1793, Moore, op. cit., Vol. 7, p. 1004.
12 Ibid.; Corwin, E. S., The President’s Control of Foreign Relations (Princeton, 1917), p. 7 Google Scholarff.
13 “In every case of a new government and of belligerency, the question of recognition was determined solely by the executive.” In some cases of recognizing new states, especially where recognition might be premature and involve serious political consequences for the United States, the President has “invoked the judgment and cooperation of Congress.” Moore, op. cit., Vol. 1, pp. 243–244. See also, Wright, Q., The Control of American Foreign Relations (New York, 1922), pp. 268, 271Google Scholar.
14 For texts, see Deák and Jessup, op. cit., Vol. 2, pp. 1172–1207. There have been many proclamations applying special legislation, especially in Mexico, the Caribbean and the Far East. Ibid., pp. 1208, 1232.
15 Moore, J. B. writes': “Where the armed conflict is between independent nations, no embarrassment arises, since the parties, wherever the existence of a state of war is duly established, immediately become entitled to the rights of belligerents. But in the case of insurrection or revolt, the question is less simple.” (Op. cit., Vol. 1, p. 164.Google Scholar) But there has been much “embarrassment” in recent years to determine, even in case of hostilities between independent nations, whether “the existence of a state of war is duly established.”
16 Gelston v. Hoyt, 3 Wheat. 246 (1818); The Three Friends, supra; Moore, op. cit., Vol. 1, p. 247, Vol. 7, p. 1078; Wright, op. cit., pp. 172–173. The President might, of course, inform the courts of the existence of a war or hostilities in a particular case without general proclamation (see Moore, op. cit., Vol. 7, p. 1019). Before 1818 the enforcement of neutrality was left mainly to the State governors. Ibid.
17 Deák and Jessup, op. cit., Vol. 2, pp. 1089, 1090, 1092.
18 Ibid., p. 1100.
19 Ibid., p. 1105.
20 Supra, note 1.
21 The determination of when a war has terminated, has sometimes been a more difficult political problem than the determination of when it has begun. Wright, Q., op. cit., pp. 290–293 Google Scholar; The Protector, 12 Wall. 700 (1871); Moore, op. cit., Vol. 7, p. 337.
22 Wright, Q., “When Does War Exist,” this Journal , Vol. 26 (1932), p. 362 Google Scholar ff.; “The Meaning of the Pact of Paris,” ibid., Vol. 27 (1933), p. 57 ff.; comments, Proc. Am. Soc. Int. Law, 1938, pp. 122,146,150,191; “The Existing Legal Situation as It Relates to the Conflict in the Far East,” Institute of Pacific Relations, 1939, p. 93; MacNair, A. D., “The Legal Meaning of War,” Transactions of the Grotius Society (London), 1925 Google Scholar; Eagleton, Clyde, “The Attempt to Define War,” International Conciliation, Nov., 1933, No. 291 Google Scholar; Brierly, J. L., “International Law and Resort to Armed Force,” Cambridge Law Journal, Vol. 4 (1932) , p. 308 Google Scholar ff.; Jessup, Philip C., “The Birth, Death, and Reincarnation of Neutrality,” this Journal , Vol. 26 (1932), p. 789 Google Scholar ff.; Borchard, E. M., “War and Peace,” ibid., Vol. 27 (1933), p. 114 Google Scholar ff.; Williams, Sir John Fischer, “The Covenant and War,” Cambridge Law Journal, Vol. 5 (1933), p. 1 Google Scholar ff., reprinted in Some Aspects of the Covenant of the League of Nations (Oxford, 1934), p. 292 ff.; Lauterpacht, H., “Resort to War,” this Journal , Vol. 28 (1934) , p. 43 Google Scholar ff.; Briggs, H. W., The Law of Nations, Cases, Documents, and Notes (New York, 1938), pp. 718–725 Google Scholar; Wilson, G. G., “War Declared and the Use of Force,” Proc. Am. Soc. Int. Law, 1938, p. 106 Google Scholar ff.; comments of Hindmarsh, A. E., Dunn, F. E., Kunz, J. L., Woolsey, L. H., et al., ibid., pp. 119 ff., 140 ff.; Willoughby, W. W., The Sino-Japanese Controversy and the League of Nations (Baltimore, 1935), p. 541 Google Scholar ff. It seems that a “resort to war” in the sense of Art. 16 of the League of Nations Covenant does not imply that a “state of war” exists; in fact it implies the contrary, for under Art. 16 the members of the League cannot be neutral, as they would be if a “state of war” existed. Failure to distinguish the use of the word “war” in the material and in the legal sense has often caused confusion (The Prize Cases, Nelson, J., dissenting, 2 Black 635 (1863); The Three Friends, supra; Wright, “Changes in the Conception of War,” this Journal, Vol. 18 (1924), p. 761), a confusion which has not always been absent from the organs of the League of Nations in applying Art. 16. (See report of the Council Committee on the applicability of Art. 16 in the Italo-Ethiopian hostilities, Oct. 7, 1935, Minutes, 7th meeting, 89th sess. of Council; Wright, Q. (ed.), Neutrality and Collective Security (Chicago, 1936), p. 203; “The Test of Aggression in the Italo-Ethiopian War,” this Journal , Vol. 30 (1936), p. 50.Google Scholar)
23 Constitution, Art. 1, Sec. 8, cl. 11. Such a declaration constitutes a resolution which, under Art. 1, Sec. 7, cl. 3, is subject to the President’s veto.
24 In the Helvidius letters Madison deduced the power of Congress to declare neutrality from its power to declare war because, he argued, a decision with respect to neutrality involved a judgment on the expediency or duty to declare war. (Corwin, op. cit., p. 21.)
25 Supra, note 13.
26 See Deák and Jessup, op. cit., Vol. 2, pp. 1116 ff., 1114 ff.
27 Ibid., p. 1143.
28 Ibid.
29 A report of the Senate Committee on the Judiciary (54th Cong., 2d Sess., Sen. Rep. 335) stated: “The committee found that the passage of concurrent resolutions began immediately upon the organization of the Government, but their use has been not for the purpose of enacting legislation, but to express the sense of Congress upon a given subject—to adjourn longer than three days, to make, amend, or suspend joint rules, and to accomplish similar purposes, in which both houses have a common interest but with which the President has no concern.” (4 Hinds, Precedents, 3483). See also ibid., Vol. 2, pp. 1566, 1567; Willoughby, The Constitutional Law of the United States (1910), Vol. 1, p. 568; Cong. Rec., Nov. 7,1919, Vol. 58, Pt. 8, p. 8075.
30 Art. 1, Sec. 7, cl. 3.
31 Hinds, op. cit., Vol. 5, p. 7027; Hollingworth v. Virginia, 3 Dall. 378 (1798); Willoughby, op. cit., Vol. 1, p. 529.
32 Senator Lodge said he supported that reservation because he did not want “to see us left where the President … can practically veto our retirement from the league.” Cong. Rec., Nov. 8,1919, Vol. 58, Pt. 8, p. 8136. See Q. Wright, “Validity of the Proposed Reservations to the Peace Treaty,” Columbia Law Review, Vol. 20 (Feb., 1920), p. 127 ff.; Control of American Foreign Relations, p. 107 ff.
33 Senators Williams (Miss.), Robinson (Ark.), Walsh (Mont.). Cong. Rec., Nov. 7, 8, 1919, Vol. 58, Pt. 8, pp. 8079, 8124, 8130.
34 Letter to Senator Hitchcock, Jan. 26, 1920.
35 Senator Lenroot (Wis.), Cong. Rec., Nov. 7, 1919, Vol. 58, Pt. 8, p. 8076. See also remarks by Senator Thomas (Colo.), and colloquy of Senator Thomas with Senator Fall (N. Mex.) and Senator Gore (Okla.), ibid., Nov. 8, 1919, p. 8122.
36 Ibid., pp. 8130–8131. This is merely an application of the familiar distinction between delegation of legislative and of fact-finding power. “The Legislature can not delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which a law makes, or intends to make, its own action depend.” (Harlan, J., in Field v. Clark, 143 U. S. 649 (1892), quoting Lockes Appeal, 72 Pa. St. 491 (1873).) See also Willoughby, op. cit., Vol. 2, p. 1319.
37 “Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” (United States v. Curtiss-Wright Export Corp., 299 U. S. 304 (1936), this Journal, Vol. 31 (1937), p. 338.) See also, Sutherland, Constitutional Power and World Affairs (New York, 1919). “Resolutions expressing general policies or principles on most subjects connected with foreign relations may be constitutionally passed by Congress, and may furnish useful guides to the President. Congressional expressions of opinion on particular issues, however, and attempts to direct the President thereon encroach upon the executive field and may embarrass the President’s action. In practice foreign policy has developed by executive precedent, practice and declaration.” ( Wright, Q., The Control of American Foreign Relations, p. 282.Google Scholar)
38 “The President is the sole organ of the nation in its external relations and its sole representative with foreign nations.” (John Marshall, in House of Representatives, Annals, 6th Cong., Col. 613.) “The President is the constitutional representative of the United States with regard to foreign nations.” (Report of Senate Committee on Foreign Relations, Feb. 15, 1816, Compilation of Reports, 1901, 56th Cong., 2d Sess., Sen. Doc. 231, Vol. 8, p. 24. See also 54th Cong., 2d Sess., Sen. Doc. 56, p. 21.) “The President is the organ of diplomatic intercourse of the Government of the United States, first, because of his powers in connection with the reception and dispatch of diplomatic agents and with treaty making; secondly, because of the tradition of executive power adherent to his office.” (Corwin, op. cit., p. 33.) Other materials to similar effect are cited in Wright, Q., op. cit., p. 21 Google Scholar ff.
39 “Instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution, an act of the Executive authority.” (John Quincy Adams , Sec. of State, Jan. 1, 1819, Moore, , op. cit., Vol. 1, p. 244.Google Scholar) “In the department of international law, therefore, properly speaking a Congressional recognition of belligerency or independence would be a nullity.” (Report of Senate Committee on Foreign Relations, 1897, Sen. Doc. 56, 54th Cong., 2d Sess., p. 22.)
40 Supra, notes 25–28, 38, 39. Henry Clay’s attempt to effect recognition of the “Independent Provinces of the River Plata in South America” by Congressional resolution in 1818 failed. Corwin, op. cit., p. 76; Wright, Q., op. cit., p. 271 Google Scholar; Moore, , op. dt., Vol. 1, p. 82 Google Scholar.
41 Supra, notes 13, 39.
42 Wright, Q., op. cit., pp. 363–365 Google Scholar.
43 President Grant vetoed two resolutions directing appreciative messages to two foreign governments because they “inadvertently infringed upon the constitutional rights of the Executive.” (Richardson, Messages, Vol. 7, p. 431.) See also, Jefferson, Sec. of State, to Genet, French Minister ( Moore, , op. cit., Vol. 4, p. 680)Google Scholar; Bryan, Sec. of State, to Gerard, American Ambassador in Germany, May 13, 1915 (White Book, European War, No. 1, p. 76); Wright, Q., op. cit, pp. 22–23, 278–279Google Scholar.
44 Wright, Q., op. cit., pp. 265–368 Google Scholar, Am. Pol. Sci. Rev., February, 1921; Survey of American Foreign Relations, 1928, C. P. Howland (ed.), pp. 95–105.
45 Wright, Q., Domestic Control of Foreign Relations; Survey of Am. For. Rel., 1928 Google Scholar, C. P. Howland (ed.), pp. 92–95; Royden Dangerfield, In Defense of the Senate (Norman, Okla., 1933), pp. 11–17.
46 See remarks by Hamilton, and Gouvemeur, Morris, Farrand, Records of the Federal Convention, Vol. 1, pp. 290, 513Google Scholar; The Federalist (Ford ed.), Nos. 64 (Jay), and 70 (Hamilton), pp. 429–430, 467.
47 To DeTocqueville’s comment (Democracy in America (New York, 1862), Vol. 1, p. 254) that “it is most especially in the conduct of foreign relations that democratic governments are decidedly inferior to governments carried on upon different principles,” Elihu Root replied, “It is because democracies are not fitted to conduct foreign affairs as they were conducted in DeTocqueville’s day,” and one now has to add in our own day also, “that the prevalence of democracy throughout the world makes inevitable a change in the conduct of foreign affairs,” if, one must add today, democracy is to survive. (Proc. Am. Soc. Int. Law, 1917, p. 9.)