cussed proposal for such a guarantee is that of the League to Enforce Peace. After providing for arbitration and conciliation, this program stipulates that "the signatory Powers shall jointly use forthwith both their economic and military forces against any one of their number that goes to war, or commits acts of hostility, against another of the signatories before any question arising shall be submitted as provided in the foregoing."

It has been objected that the United States could not enter into a treaty with such a provision because, if faithfully executed, it would amount to a delegation of the power to declare war to the international commission which was given the function of declaring when the circumstances contemplated existed, or at least it would deprive Congress of its discretion in performing this "solemn, sovereign act." 47

The question has never arisen for judicial decision, but it appears that the treaty-making power sustained the constitutionality of such a provision in ratifying the treaty with Panama of 1903. Article 1 provides "The United States guarantees and will maintain the independence of the Republic of Panama." It is impossible to interpret this provision except as demanding a declaration of war in certain contingencies.48 Treaties of guarantee 49 and active

47 Cosmos, The Basis of a Durable Peace, New York, 1917, p. 103; W. J. Bryan, Lake Mohonk Conference on International Arbitration, 1916, p. 146. See also St. George Tucker, ed. of Blackstone, 1: 338.

There has been much discussion of the nature of the obligation assumed by states in treaties of guarantee. It is generally agreed that the obligation must be interpreted with reference to the political situation. Thus, in a collective guarantee, the minority of guarantors would not be obliged to go to war if the majority were bent on themselves violating the guarantee. Lord Derby, 1876, Hansard, III, 229: 1891. In 1867 Lord Derby had taken the extreme position that a collective guarantee imposed no obligation unless all the guarantors were in concert. (Hansard, III, 188: 150.) Mr. Gladstone, 1870, 1872, 1877, Hansard III, 203: 1787, 210: 1178, 232: 475; Oppenheim, International Law, 1st ed., 1: 575; G. G. Wilson, Neutralization in Theory and Practice, Yale Review, 4: 474 (April, 1915); C. P. Sanger and H. T. J. Norton, England's Guarantee to Belgium and Luxemburg, London, 1915, p. 120.

"The most emphatic guarantee was that made to Colombia in the treaty of 1846, Art. 35, sec. 1: "And in order to secure to themselves these advantages, etc.,

the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that the free transit from the one to the other sea may not be

alliance 50 have not, it is true, been common in the history of the United States, although in that of other countries they play a prominent part.

Virtually the same constitutional question is at issue in treaties prohibiting war under specified conditions - the discretion of Congress to declare war is equally limited. Of this character are Article 21 of the Treaty of Guadaloupe Hidalgo with Mexico,51 Article 1 of the II Hague Convention, 1907,52 and the twenty-odd Wilson-Bryan peace treaties concluded since 1914. The latter, in requiring the parties "not interrupted or embarrassed in any future time in which this treaty exists; and in consequence the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory." It does not appear to have been effective. See also treaties with France, 1778, Art. 11; Nicaragua, 1867, Art. 15; Cuba, 1903, Art. 7.

50 The only treaty of active alliance concluded by the United States, has been that with France of 1778, concluded before either the Articles of Confederation or the Constitution were in effect. The military coöperation required by Art. 1 referred only to the existing war with Great Britain.

51 "And if by these means they should not be able to come to an agreement, a resort shall not, on this account, be had to reprisals, aggression, or hostility of any kind, by the one republic against the other, until the government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighborship, whether it would not be better that such difference should be settled by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case." Revised, 1853, Art. 7. A number of treaties require the parties to abstain from reprisals or war for violation of the terms of the treaty until the "party considering itself offended shall first have presented to the other a statement of such injuries or damages, verified by competent proof, and demanded justice and satisfaction, and the same shall have been either refused or unreasonably delayed." Morocco, 1787-1836, Art. 24; 1836, Art. 24; Algiers, 1795-1815, Art. 22; Tripoli, 1796-1805, Art. 12; 1805, Art. 15; Tunis, 1797-1904, Art. 15; Brazil, 1828, Art. 33, sec. 3; Peru-Bolivia, 1836–1839, Art. 30, sec. 3; Colombia, 1846, Art. 35, sec. 5; Peru, 1851–1863, Art. 40, sec. 3; Bolivia, 1858, Art. 36, sec. 3.

52 The reservations of the United States on this convention referred only to the manner of arbitration, not to the duty to abstain from war, Malloy, Treaties, etc., p. 2259. The compulsory arbitration provisions of the proposed Taft treaties of 1911 were amended by the Senate on constitutional grounds, but not the one here in question. The majority of the Foreign Relations Committee thought that ultimate decision by a joint high commission on the question of what subjects were justiciable and hence subject to compulsory arbitration would amount to an unconstitutional delegation of power to decide in each instance on this question by the treaty power itself. See infra, note 121.

to declare war or begin hostilities during such investigation and report" (of an international commission, which may occupy a year), limit the discretion of the war power in point of time, while the "Convention respecting the Limitation of Force for the Recovery of Contract Debts" (II Hague, 1907) limits the subject-matter which may ultimately be made a pretext for war.

Treaties of this character could hardly come before the courts for interpretation. A declaration of war contrary to the treaty, or a failure to declare war when required by the treaty, would be equally accepted by the judiciary as valid decisions of a "political question." 53 Yet it is believed that long practice 54 and the reason of the thing fully sustain the constitutional competence of the treaty-making power to conclude such agreements and their validity when ratified. The treaty power does not "declare war"; it simply, in the words of Mr. Taft: 55

53 The Prize Cases, 2 Black 635.

Aside from its first treaty, the French treaty of alliance and guarantee of 1778, no less than thirty treaties, distributed throughout its history, definitely limit the war power of the United States (supra, notes 51 and 52), not to mention the obligation implied in the numerous treaties stipulating for "perpetual peace and amity" between the contracting parties, the many bilateral arbitration treaties providing for the submission to arbitration of all disputes of "a legal nature" which "do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties," and the general pacific settlement treaties of The Hague providing that "in case of serious disagreement or dispute, before an appeal to arms, the contracting Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers."

55 W. H. Taft, address May 26, 1916, before League to Enforce Peace, Enforced Peace, p. 64. Ex-Justice Hughes, in carefully weighed terms, has expressed the same opinion as the ex-President: "Congress alone has the power to declare war, and any agreement made by the United States to coöperate in coercive measures amounting to war would necessarily be subject to the exercise by Congress of its unquestioned authority. But this does not mean that the treaty-making power may not, if it is found to accord with national interests and policies, aid in forming an international organization believed to be necessary and practicable, although its offer of coöperation in any given contingency must be subject to the well-known conditions which inhere in our constitutional form of government. Congress indeed will have all its powers, but its course of action will depend upon the world outlook of the nation, and we should do what we can to promote an enlightened conception of our international responsibility." Address before Long Beach Conference on Foreign Relations, May 28, 1917, Proceedings, Academy of Political Science, Vol. 7, No. 2, p. 14.

creates the obligation to declare war (or refrain from doing so) in certain contingencies. That obligation is to be discharged by Congress under its constitutional power to declare war. If it fails to do so, and thus comply with the binding obligation created by the treaty-making power, then it merely breaks the contract of the Government. It is left to Congress to carry out that which we in a constitutional way have agreed to do. Thus to impose in a constitutional way, by treaty, an obligation on Congress is not to take away its power to discharge it or to refuse to discharge it.

It is probable that the use of force to fulfill the guarantees required by such a concert of Powers would not generally require a declaration of war, but would be within the competence of the President alone. Article 1, section 8, clause 15 of the Constitution authorizes Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions." In conferring this power upon the President, Congress has interpreted it as including the land and naval forces as well as the militia,56 and "danger of invasion" as well as actual invasion.57 A violation of a treaty to which the United States was a party, if not a violation of a "law of the Union,"58 might be accompanied by circumstances amounting to "invasion" or "danger of invasion." 59 The power to determine when these circumstances exist has been held to lie with the President,60 and it was under this power that President Lincoln first called out the national forces to

56 Act of March 3, 1807, 2 Stat. 443.

57 Act of Jan. 21, 1903 (Dick Act), 32 Stat. 776, sec. 4; 35 Stat. 400; 38 Stat. 284; based on Acts of May 2, 1792, and Feb. 28, 1795, 1 Stat. 264, 424.

58 Although by Art. 6, sec. 2, treaties are the "supreme law of the land," for this clause "laws" have been held to refer only to laws of territorial effect. Wickersham, Att. Gen., 29 Op. 322 (1912); Ordronaux, Constitutional Legislation, Philadelphia, 1891, p. 501; J. N. Pomeroy, Constitutional Law, 9th ed., Boston, 1886, p. 387; Kneedler v. Lane, 45 Pa. St. 238, 244 (1863). A contrary opinion was expressed by Judge Advocate General Davis in 1908, Cong. Rec., 42: 6943. See also report of Efficiency and Economy Committee, State of Illinois, 1915, pp. 889 et seq.

59 The proposition that this clause permits the use of forces only within the territory of the United States can hardly be sustained in view of the fact that statutes specify that they may be used "within or without the territory of the United States." 35 Stat. 400, sec. 5; 38 Stat. 284, sec. 4. A use outside the territory, however, could only be justified by hot pursuit of the invader or strategic necessity to apprehend a threatened attack. See Wickersham, Att. Gen., 29 Op. 324; Pomeroy, Constitutional Law, p. 387.

60 Martin v. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 1.

suppress the Southern rebellion.61 Undoubtedly the uses of the militia contemplated by this clause are essentially domestic, yet the practice under it shows that force may be used to the greatest extent without a declaration of war by Congress.

In external affairs an analogous authority to use the forces is given immediately to the President by the implied power over foreign relations and the powers inherent in the "Commander in Chief of the army and navy of the United States." 62 This office undoubtedly confers authority to use these forces for protective and defensive purposes in measures short of war, such as display of force and limited use of force, an authority frequently exercised. Such measures as these, coupled with the economic pressure which might be brought by embargoes and nonintercourse, would be the most important means for carrying out obligations of international guarantee. The latter methods, as interfering with commerce and revenue, would require the sanction of Congress,64

61 It was of course impossible to declare war in this case. See The Prize Cases, 2 Black 635. 62 Art. 2, sec. 2, cl. 1.

Authorized by President alone: Navy dispatched against Tripolitan pirates, 1801 (Jefferson's Message, Dec. 8, 1801; Richardson, 1: 326; action later ratified by Congress, Act. of Feb. 6, 1802, 2 Stat. 129); sloop Dale threatened bombardment of Island of Johanna, 1851 (Moore, 7: 112); bombardment of Greytown, Nicaragua, 1854 (Moore, 7: 112); engagement of U. S. S. Wyoming in Straits of Shimonosiki, Japan, 1863 (Moore, 7: 116); dispatch of U. S. S. Shawmut to Venezuela, 1871 (Moore, 7: 112); dispatch of U. S. S. Wachusett to Ecuador, 1885 (Moore, 7: 108); landing of forces in Peking, China, in defense of legation from Boxers, 1900 (Moore, 5: 476-493); landing of troops at Vera Cruz, Mexico, April 21, 1914 (Am. Year Book, 1914, p. 34; later ratified by joint resolution of Congress expressly denying intention to make war, April 22, 1914, 38 Stat. 770); punitive expedition to Mexico, 1916 (Am. Year Book, 1916, pp. 79, 312; ratified by Senate resolution denying intention to intervene, March 17, 1916, Cong. Rec., 53: 4274).

With authority of Congress but no declaration of war: French reprisals, 17981799 (1 Stat. 361, 572, 578, 743; Moore, 7: 155); dispatch of navy against Algerine pirates, 1815 (3 Stat. 230); dispatch of frigate Sabine to Asuncion, Paraguay, 1858 (joint resolution, June 2, 1858, 11 Stat. 370; Moore, 7: 109).

See E. Root, address in the Senate, Aug. 14, 1912, Cong. Rec. 48: 10929; Military and Colonial Policy of the United States, Cambridge, 1916, p. 157; J. R. Clark, Jr. (Solicitor of Dept. of State), Right to protect citizens in foreign countries by landing forces, Washington, 1912; E. M. Borchard, The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 452.

"Congress has authorized general embargoes in 1794 (1 Stat. 400) and 1807 (2 Stat. 451); nonintercourse with designated foreign states, 1798 (1 Stat. 565)