there would seem to be equally little doubt, although it has been contended by some that the exercise of this discretion can be limited by congressional statute. That Congress has this right to limit or to forbid the sending of United States forces outside of the country in time of peace has been asserted by so eminent an authority as ex-Secretary Root. It would seem to the author, however, that the President, under his powers as Commander in Chief of the Army and Navy, and his general control of the foreign relations of the United States, has this discretionary right constitutionally vested in him, and, therefore, not subject to congressional control. Especially, since the argument of the court in Myers v. United States with reference to the general character of the executive power vested in the President, and, apparently, the authority impliedly vested in him by reason of his obligation to take care that the laws be faithfully executed, it is reasonable to predict that, should the question be presented to it, the Supreme Court will so hold. Of course, if this sending is in pursuance of express provisions of a treaty, or for the execution of treaty provisions, the sending could not reasonably be subject to constitutional objection" (the Constitutional Law of the United States, 1929, vol. III, p. 1567).

In an address delivered before the American Bar Association in 1917 on the War Powers Under the Constitution, Mr. Hughes stated that "There is no limitation upon the authority of Congress to create an army and it is for the President as Commander in Chief to direct the campaign of that Army wherever he may think they should be carried on.' He referred to a statement by Chief Justices Taney in Fleming v. Page (9 How. 615) in which the Chief Justice said that as Commander in Chief the President "is authorized to direct the movements of the naval and military forces placed by law at his command" (S. Doc. 105, 65th Cong., sess., p. 7).

At the time the approval of the Treaty of Versailles was under consideration in the Senate, there was under discussion a reservation to article 10, presented by Senator Lodge, to the effect that "Congress * * * under the Constitution, has the sole power to declare war or authorize the employment of the military or naval forces of the United States." Senator Walsh, of Montana, stated in debate on November 10, 1919, that the statement was a recital of "What is asserted to be a principle of constitutional law." He said that if—

66 * * * any declaration of that character should ever be made by the Senate of the United States, it would be singularly unfortunate. It is not true. It is not sound. It is fraught with the most momentous consequences, and may involve disasters the extent of which it is hardly possible to conceive.

"The whole course of our history has been a refutation of such a declaration, namely, that the President of the United States, the Chief Executive of the United States, the Commander in Chief of the Army of the United States, has no power to employ the land or naval forces without any express authorization upon the part of Congress. Since the beginning of our Government, our Navy has been sent over the seven seas and to every port in the world. Was there ever any congressional act authorizing the President to do anything of that kind?"

He stated that our Navy travels the sea "in order to safeguard and protect the rights of American citizens in foreign lands. Who can doubt that the President has no authority thus to utilize the naval and land forces of the United States?" Mr. Borah stated:

* * *

"I agree fully with the legal or constitutional proposition which the Senator states, and I hope this [reservation] will be stricken out. It is an act of supererogation to put it in. It does not amount to anything. It is a recital which is not true. It cannot change the Constitution, and it ought not to be there. It would simply be vain and futile and, if I may say so, with due respect to those who drew it, the doing of an inconsequential thing" (58 Congressional Record, pt. 8, p. 8195, Nov. 10, 1919, 66th Cong., 1st sess.).

Not only is the President Commander in Chief of the Army and Navy, but he is also charged with the duty of conducting the foreign relations of the United States and in this field he "alone has the power to speak or listen as a representative of the Nation" (United States v. Curtiss-Wright Export Corp., et al., (299 U. S. (1936) 304, 319)).

Obviously there are situations in which the powers of the President as Commander in Chief and his power to conduct the foreign relations of this country complement each other.

The basic interest of the United States is international peace and security. The United States has throughout its history, upon orders of the Commander in Chief to the Armed Forces, and without congressional authorization, acted to

prevent violent and unlawful acts in other States from depriving the United States and its nationals of the benefits of such peace and security. It has taken such action both unilaterally and in concert with others. A tabulation of 85 instances of the use of American Armed Forces without a declaration of war was incorporated in the Congressional Record for July 10, 1941 (appendix A). See also the appendix to the pamphlet by James Grafton Rogers entitled "World Policing and the Constitution" published in 1945 by the World Peace Foundation.

It is important to analyze the purposes for which the President as Commander in Chief has authorized the despatch of American troops abroad. In many instances, of course, the Armed Forces have been used to protect specific American lives and property. In other cases, however, United States forces have been used in the broad interests of American foreign policy, and their use could be characterized as participation in international policy action.

The traditional power of the President to use the Armed Forces of the United States without consulting the Congress was referred to in debates in the Senate in 1945. Senator Connally remarked:

* * *

"The historical instances in which the President has directed armed forces to go to other countries have not been confined to domestic or internal instances at all." Senator Millikin pointed out that "in many cases the President has sent troops into a foreign country to protect our foreign policy notably in Central and South America." "That was done," he continued, "in order to keep foreign countries out of there was not aimed at protecting any particular American citizen. It was aimed at protecting our foreign policy.' To his remark that he presumed that by the Charter of the United Nations we had laid down a foreign policy which we could protect, Senator Connally replied that that was "absolutely correct." He added:

"I was trying to indicate that fact by reading the list of instances of intervention on our part in order to keep another government out of territory in this hemisphere. That was a question of carrying out our international policy, and not a question involving the protection of some American citizen or American property at the moment.' (Congressional Record, 79th Cong., 1st sess., vol. 91, pt. 8, November 26, 1945, p. 10967.)

During the Boxer Rebellion in China in 1900-1901 the President sent about 5,000 troops to join with British, Russian, German, French, and Japanese troops to relieve the siege of the foreign quarters in Peking and reestablish the treaty status. This was done without express congressional authority. In defining United States policy at the time Secretary of State Hay said:

* * The purpose of the President is, as it has been heretofore, to act concurrently with the other powers; first, in opening up communication with Peking and rescuing the American officials, missionaries, and other Americans who are in danger; secondly, in affording all possible protection everywhere in China to American life and property; thirdly, in guarding and protecting all legitimate American interests; and, fourthly, in aiding to prevent a spread of the disorders to the other provinces of the Empire and a recurrence of such disasters. It is, of course, too early to forecast the means of attaining this last result; but the policy of the Government of the United States is to seek a solution which may bring about permanent safety and peace to China, preserve Chinese territorial and administrative entity, protect all rights guaranteed to friendly powers by treaty and international law, and safeguard for the world the principle of equal and impartial trade with all parts of the Chinese Empire." (V Moore's Digest of International Law, p. 482. See also Taft, op. cit. pp. 114-115; Rogers, op. cit. pp. 58-62.)

After the opening up of Japan to foreigners in the 1850's through the conclusion of commercial treaties between Japan and certain western powers, antiforeign disturbances occurred. In 1863 the American Legation was burned following previous attacks on the British Legation. The commander of the U. S. S. Wyoming was instructed to use all necessary force for the safety of the legation or of Americans residing in Japan. Secretary of State Seward said that the prime objects of the United States were: "First, to deserve and win the confidence of the Japanese Government and people, if possible, with a view to the common interest of all the treaty powers; secondly, to sustain and cooperate with the legations of these powers, in good faith, so as to render their efforts to the same end effective." (V Moore's Digest of International Law, pp. 747-748.)

In 1864 the Mikado, not recognizing the treaties with the western powers, closed the straits of Shimonoseki. At the request of the Tycoon's Government (opposed to the Mikado) American, British, French, and Netherlands forces in a joint operation opened the straits by force. The object of the western powers

was the enforcement of treaty rights, with the approval of the government that granted them. (V Moore's Digest, p. 750; S. Ex. Doc. 58, 41 Čong. 2d sess.)

The

Again in 1868 a detachment of Japanese troops assaulted foreign residents in the streets of Hiogo. One of the crew of the Oneida was seriously wounded. safety of the foreign population being threatened, naval forces of the treaty powers made a joint landing and adopted measures to protect the foreign settlement. (Report of the Secretary of the Navy, 1868, p. XI.)

Former Assistant Secretary of State James Grafton Rogers has characterized these uses of force as "international police action," saying: "They amounted to executive use of the Armed Forces to establish our own and the world's scheme of international order. Two American Presidents used men, ships and guns on a large and expensive scale." (World Policing and the Constitution, published by the World Peace Foundation, 1945, pp. 66, 67.)

In 1888 and 1889 civil war took place in Samoa, where the United States, Great Britain, and Germany had certain respective treaty rights for the maintenance of naval depots. German forces were landed, and the German Government invited the United States to join in an effort to restore calm and quiet in the islands in the interest of all the treaty powers. The commander of the United States naval forces in the Pacific was instructed by the Secretary of the Navy that the United States was willing to cooperate in restoring order "on the basis of the full preservation of American treaty rights and Samoan authority, as recognized and agreed to by Germany, Great Britain, and the United States." He was to extend full protection and defense to American citizens and property, to protest the displacement of the native government by Germany as violating the positive agreement and understanding between the treaty powers, but to inform the British and German Governments of his readiness to cooperate in causing all treaty rights to be respected and in restoring peace and order on the basis of the recognition of the Samoan right to independence. (I Moore's Digest of International Law, pp. 545-546.)

On July 7, 1941, the President sent to the Congress a message announcing that as Commander in Chief he had ordered the Navy to take all necessary steps to insure the safety of communications between Iceland and the United States as well as on the seas between the United States and all other strategic outposts and that American troops had been sent to Iceland in defense of that country. The United States, he said, could not permit "the occupation by Germany of strategic outposts in the Atlantic to be used as air or naval bases for eventual attack against the Western Hemisphere." For the same reason, he said, substantial forces of the United States had been sent to the bases acquired from Great Britain in Trinidad and British Guiana in the south to forestall any pincers movement undertaken by Germany against the Western Hemisphere (Congressional Record, 77th Cong., 1st sess., vol. 87, pt. 6, July 7, 1941, p. 5868).

Thus, even before the ratification of the United Nations Charter, the President had used the Armed Forces of the United States without consulting the Congress for the purpose of protecting the foreign policy of the United States. The ratification of the United Nations Charter was, of course, a landmark in the development of American foreign policy. As noted above, Senator Connally and Senator Millikin agreed that the President was entitled to use armed forces in protection of the foreign policy represented by the Charter. This view was also expressed in the Senate debates in connection with the ratification of the Charter. example, Senator Wiley made the following pertinent statement:

For

"It is my understanding, according to the testimony given before the Foreign Relations Committee of the Senate, that the terms 'agreement or agreements' as used in article 43 are synonymous with the word 'treaty.' On the other hand, I recognize that Congress might well interpret them as agreements brought about by the action of the Executive and ratified by a joint resolution of both Houses. These agreements would provide for a police force and the specific responsibility of each nation. But outside of these agreements, there is the power in our Executive to preserve the peace, to see that the 'supreme laws' are faithfully executed. When we become a party to this charter, and define our responsibilities by the agreement or agreements, there can be no question of the power of the Executive to carry out our commitments in relation to international policing. His constitutional power, however, is in no manner impaired" (Congressional Record, 79th Cong., 1st sess., vol. 91, July 27, 1445, p. 8127-8128).

An even fuller exposition of the point was made by Senator Austin, who stated: "Mr. President, I am one of those lawyers in the United States who believe that the general powers of the President-not merely the war powers of the

President but the general authority of the President-are commensurate with the obligation which is imposed upon him as President, that he take care that the laws are faithfully executed. That means that he shall take all the care that is required to see that the laws are faithfully executed.

"Of course, there are other specific references in the Constitution which show that he has authority to employ armed forces when necessary to carry out specific things named in the Constitution; but the great over-all and general authority arises from his obligation that he take care that the laws are faithfully executed. That has been true throughout our history, and the Chief Executive has taken care, and has sent the armed forces of the United States, without any act of Congress preceding their sending, on a great many occasions. I have three different compilations of those occasions. One of them runs as high as 150 times; another of them 72 times, and so forth. It makes a difference whether we consider the maneuvers which were merely shows of force as combined in the exercise of this authority--as I do-or whether we limit the count to those cases in which the armed forces have actually entered upon the territory of a peaceful neighbor. But there is no doubt in my mind of his obligation and authority to employ all the force that is necessary to enforce the laws.

"It may be asked, How does a threat to international security and peace violate the laws of the United States? Perhaps, Mr. President, it would not have violated the laws of the United States previous to the obligations set forth in this treaty. Perhaps we have never before recognized as being true the fundamental doctrine with which I opened my remarks. But we are doing so now. We recognize that a breach of the peace anywhere on earth which threatens the security and peace of the world is an attack upon us; and after this treaty is accepted by 29 nations, that will be the express law of the world. It will be the law of nations, because, according to its express terms, it will bind those who are nonmembers, as well as members, and it will be the law of the United States, because we shall have adopted it in a treaty. Indeed, it will be above the ordinary statutes of the United States, because it will be on a par with the Constitution, which provides that treaties made pursuant thereto shall be the supreme law of the land.

"So I have no doubt of the authority of the President in the past, and his authority in the future, to enforce peace. I am bound to say that I feel that the President is the officer under our Constitution in whom there is exclusively vested the responsibility for maintenance of peace." (Congressional Record, 79th Cong., 1st sess., vol. 91, July 26, 1945, pp. 8064-8065.)

Action contrary to the Charter of the United Nations is action against the interests of the United States. Preservation of peace under the Charter is a cornerstone of American foreign policy. President Truman said in his inaugural address in 1949:

"In the coming years, our program for peace and freedom will emphasize four major courses of action.

"First, we will continue to give unfaltering support to the United Nations and related agencies, and we will continue to search for ways to strengthen their authority and increase their effectiveness."

In the Korean situation, the resolution of the Security Council of June 25 determined, under article 39 of the Charter, that the action of the North Koreans constituted a breach of the peace and called upon "the authorities in North Korea (a) to cease hostilities forthwith; and (b) to withdraw their armed forces to the thirty-eight parallel." It also called upon "all members to render every assistance to the United Nations in the execution of this resolution." This is an application of the principles set forth in article 2, paragraph 5, of the Charter, which states: "All members shall give the United Nations every assistance in any action which it takes in accordance with the present Charter * * * "" The Security Council resolution of June 27, passed after the North Korean authorities had disregarded the June 25 resolution, recommended "that members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area. This recommendation was also made under the authority of article 39 of the Charter.

The President's action seeks to accomplish the objectives of both resolutions. The continued defiance of the United Nations by the North Korean authorities would have meant that the United Nations would have ceased to exist as a serious instrumentality for the maintenance of international peace. The continued

existence of the United Nations as an effective international organization is a paramount United States interest. The defiance of the United Nations is in clear violation of the Charter of the United Nations and of the resolutions adopted by the Security Council of the United Nations to bring about a settlement of the problem. It is a threat to international peace and security, a threat to the peace and security of the United States and to the security of United States forces in the Pacific.

These interests of the United States are interests which the President as Commander in Chief can protect by the employment of the Armed Forces of the United States without a declaration of war. It was they which the President's order of June 27 did protect. This order was within his authority as Commander in Chief.

APPENDIX

Excerpt from Congressional Record of July 10, 1941, pp. 5930–5931]

USE OF LAND AND NAVAL FORCES OF THE UNITED STATES FOR PROTECTION PURPOSES

The United States has used its land and naval forces in foreign territories during peacetime on many occasions during the past hundred years. They have been landed, inter alia, for the protection of American citizens and American territory, as in the instance of the Spanish Floridas in 1817; for the protection of American citizens located in disturbed areas; for the suppression of piracy; for meting out punishment (in an early day) to lawless bands who had murdered American citizens; for the suppression of local riots and the preservation of order; for the purpose of securing the payment of indemnity; and to prevent massacre. Although there may have been earlier instances, the first instance that has been drawn to my attention of the landing of United States troops occurred in 1812 when President Monroe sent forces to expel freebooters who had taken possession in the name of the Governments of Buenos Aires and Venezuela of Amelia Island, off the coast of Florida. Although the island belonged to Spain the measure was not taken in concert with the Spanish Government or the local authorities of Florida. I find that as late as 1932 American forces were sent to Shanghai owing to the Sino-Japanese conflict as a measure of protection for the lives and property of American citizens in that area.

A list of various landings of American forces and the occasions therefor follows: