these incidents, whether, supported by congressional action or not, developed into situations analogous to war.

A. PROTECTION OF LIVES AND PROPERTY

Many of the actions not involving a declaration of war have directly concerned the protection of American lives and property.

The fourteenth amendment to the Constitution guarantees the privileges and immunities of citizens of the United States, and these have been held to include the right of protection abroad. In 1873, in the Slaughter House Cases, the Supreme Court said:

Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this, there can be no doubt, nor that the right depends upon his character as a citizen of the United States.2

It has been held that the President may use the armed forces in foreign territory to give this protection.3 There is also a sufficient basis for this action in international law, which has recognized the right of a state to employ its armed forces for the protection of lives and property of nationals abroad. Such action is permissible where the state in which nationals reside, because of revolutionary disturbances or other reasons, is unable or unwilling to afford them the protection to which they are entitled.*

In 1854, the President directed United States naval forces to bombard Greytown, Nicaragua, because of the failure of that country to make reparation for an attack upon the American consul. The legality of this act was questioned in Durand v. Hollins. Mr. Justice Nelson, sustaining the action, said:

Now as respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President. Acts of lawless violence, or of threatened violence to the citizen and his property, cannot be anticipated and provided for, and the protection, to be effectual *** may *** require the most prompt and decided action. *** The great object and duty of government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home * ** 5

The Boxer Uprising of 1900-1901, which led to the capture of Peking by the armed forces of the United States, Great Britain, France, Russia, and Japan, is a good example of what was in reality action by an "international police force" to protect lives and property. Without waiting for congressional authorization, President McKinley sent an American contingent of 2,500 soldiers to fight-together with the forces of other countries-in "preventing a spread of the disorders or their recurrence." The nature of the operation, involving the joint use of armed forces by the United States and other states whose diplomatic representatives were threatened by the siege of the Legation Quarter in Peking, may be considered as collective measures.7

2 16 Wallace 36, at p. 79.

6

3 Perrin v. U.S. (1868), 4 Ct. Cls. 543; In re Neagle (1890) 135 U.S. 1.

4 Clark, J. Reuben. Right to Protect Citizens in Foreign Countries by Landing Forces (2d. Rev. Ed.), Washington, U.S. Government Printing Office, 1929.

$ (1860) 4 Blatch. 451, at p. 454.

See Rogers, J. G., World Policing and the Constitution. Boston, World Peace Foundation, 1945, pp. 58-61; Elihu Root, Military and Colonial Policy of the United States 1916, pp. 333, 336-347; message of President McKinley in Foreign Relations, 1900, p. xiv.

7 Philip C. Jessup has characterized such action as "a measure of forcible self-help, legalized by international law because there has been no international organization competent to act in an emergency,' Sec Force Under a Modern Law of Nations, 24 Foreign Affairs, (1946), p. 98.

Most of the United States action has occurred with the greatest frequency in Latin America, especially during revolutions. United States armed forces have also been used in the South Sea Islands, Africa, in the Near and Far East.

As to the President's power to send troops overseas to safeguard American interests, Edwin Borchard, late professor at Yale University, observed that:

Inasmuch as the Constitution vests in Congress authority "to declare war" and does not empower Congress to direct the President to perform his constitutional duties of protecting American citizens on foreign soil, it is believed that the Executive has unlimited authority to use the armed forces of the United States for protective purposes abroad in any manner and on any occasion he considers expedient."

As regards the President's power to use the forces of the United States for the protection of American lives and property on foreign soil, J. Reuben Clark laid down the following proposition:

1. The use of the forces of the United States in foreign countries to protect the lives and property of American citizens resident in that country does not constitute an act of war, and is, therefore, not equivalent to a declaration of war.

2. Inasmuch as the use in foreign countries of the military forces of this government for the purpose of protecting American life and property therein situated does not amount to an act of war or to a declaration of war, it is doubtful if Congress has authority to control such use.10

A recent prominent example of the President's employment of the armed forces which was justified on the grounds that it would protect lives and property occurred during the Dominican uprising in 1965. According to President Johnson, he ordered the intervention "because the lives of Americans remaining in the Dominican Republic were in danger and the Dominican government had informed the United States it could no longer provide for their safety."" In addition, the action might have been prompted to avoid a Communist takeover of the revolutionary forces, a motive which was indicated in President Johnson's TV address to the nation on May 2, 1965.

B. DEFENSE AGAINST INVASION OR THREATS TO NATIONAL SAFETY

On several occasions Presidents of the United States have acted to repel actual or threatened invasion of the United States or threats to national safety. In 1793, President Washington, acting entirely on his own initiative, directed General Wayne to drive out of the Northwest Territory any British troops which might be found stationed there. In 1816, 1817, and 1818, under presidential orders, American forces invaded Florida to suppress English marauders, freebooters, and Indian tribes who were raiding American settlements.12 In 1846, President Polk directed General Taylor not only to repel any Mexican invasion of disputed territory, but to follow the invaders into Mexican territory until they were defeated. It was only after two battles had been fought that Congress declared that—

2 Moore, Digest of International Law, pp. 400-402, 414-418. Diplomatic Protection of Citizens Abroad, New York, 1916, p. 452.

1 Clark, J. Reuben, op. cit., pp. 39-40.

11 New York Times, April 30, 1965.

13 Clark, J. Reuben, op. cit., p. 52; Bemis, S. F. A Diplomatic History of the United States (3d Ed.), New York, 1950, p. 190; Bailey, T. A. A Diplomatic History of the American People (2d Ed.), New York, 1942, pp. 168-172; Berdahl, C. A. War Powers of the Executive in The United States, Urbana, 1921, pp. 132-133; Upton, E. The Military Policy of the United States (3d Imp.), Washington, 1912, pp. 147–149.

by act of the Republic of Mexico, a state of war exists * * * 13

In 1916 President Wilson sent troops into Mexico under command of General Pershing to apprehend the bandit leader, Villa, who had been raiding border towns. The expeditionary force remained in Mexico for 8 months. Congressional approval was obtained by President Wilson, after Pershing's troops had crossed the border.14

In Martin v. Mott the Supreme Court concluded that the President was empowered to act not only in cases of actual invasion, but also when there was "imminent danger of invasion"; and "imminent danger" was held to be a question of fact to be determined by the President. Mott, a citizen of New York, was contesting a sentence imposed by a court martial for failure to answer a militia call during the War of 1812. An act of Congress in 1795 provided that

Whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion and issue his order for that purpose✶✶✶ 15

Mr. Justice Story said:

The power thus confided by Congress to the President, is doubtless, of a very high and delicate nature. *** But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? *** We are all of opinion, that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of Congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circumstances which may be vital to the existence of the Union.16

President Lincoln's conduct at the beginning of the Civil War represents perhaps the widest use of unilateral Presidential power without prior congressional sanction. However, his action was against internal rebellion and was not a military defense against a foreign power. It was nearly 3 months after the fall of Fort Sumter before President Lincoln convened the Congress in special session on July 4, 1861. In the 10 week interim, he declared a blockade of the Southern States, organized the available State militias into a 90-day volunteer force, called 40,000 volunteers for 3 years' service, added 23,000 men to the Regular Army, and 18,000 to the Navy, used $2,000,000 from unappropriated funds in the Treasury to pay persons unauthorized to receive it, and took other action severely restricting civil rights. Most of this was done without any statutory authorization. The Congress later approved these actions. E. S. Corwin pointed out that Lincoln did this by joining the Presidential powers as Commander in Chief to those deriving from his duty to execute the laws and—

From these two clauses thus united Lincoln proceeded to derive what he termed
the "war powers" to justify the series of extraordinary measures. * * * 17
The exercise of these powers was thoroughly considered by the
Supreme Court in The Prize Cases. The Court stated that the exist-

13 9 Stat. 9; Bemis, S. F. op. cit. pp. 239-240.

14 Callahan, J. M. American Foreign Policy in Mexican Relations, New York, 1932, pp. 561-563, 2 Hackworth, pp. 291-298.

15 1 Stat. 424.

16 (1827) 12 Wheat. 19, at p. 28.

17 Corwin, Edward S., op. cit., p. 229.

ence of war is a question of fact and that the President must meet the danger

In the shape that is presented itself, without waiting for Congress to baptize it with a name *** he must determine what degree of force the crisis demands. *** 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.18 It should be repeated, however, that Lincoln's actions related to a civil war and not to a foreign war. How far is the exercise of wide presidential authority in a civil war applicable to a foreign war? So far as domestic measures are concerned, E. S. Corwin observed thatAn indefinite power must be attributed to the President to take emergency measures, even though Congress is thus confronted with irremediable faits accomplis and a permanent set given to policy touching matters of vital importance to the nation.19

C. PROTECTION OF THE NATIONAL INTERESTS OF THE UNITED STATES AND SUPPort of UNITED STATES FOREIGN POLICY

The President has also sent troops into conflicts for the more general purposes of protection of the national interest of the United States and in support of its foreign policy. Sometimes the national interest has been interpreted in broad terms; at other times the interpretation has been restrictive. Sometimes the foreign policy which troops are dispatched to defend has been embodied in a treaty. At other times, a formal treaty commitment has been lacking.

The extent to which the President can use armed forces to further or protect the foreign policy of the United States has been commented on by Quincy Wright, professor emeritus at the University of Chicago and the University of Virginia, as follows:

National territory, persons, ships, and official agencies are tangible things and there can be no question of the President's right and duty to use the armed forces to protect them when actually attacked or in immediate danger. A more difficult problem arises when more remote danger or intangible policies are the object of attack. Can the President announce in behalf of the United States such policies as the Monroe Doctrine; the Open Door in, and the territorial integrity of, China; the police power corollary of the Monroe Doctrine; the Good-Neighbor policy and United Nations solidarity against aggression, deemed to be in the interest of American defense and prosperity, and use the armed forces to maintain them? The announcement of such policies has often carried the implication that forces would be used if necessary. It would appear doubtful, however, whether the President can justify such uses of force without further authorization of law than can be found in any broad terms of the Constitution. If such policies have the object of maintaining general international law, however, the President may justify action on the ground that international law is part of the law of the land.20

The President has on several occasions deployed troops abroad in defense of certain standards of international order, the maintenance of which has been deemed to be in the U.S. national interest. Thus the U.S. in the nineteenth century joined other nations in extensive armed action against the Barbary States, Japan, Korea, Samoa and China to require them to meet accepted standards of international

18 (1863) 2 B1. 635, at p. 668.

19 Corwin, Edward S., op. cit., p. 234.

20 Power of the President to Commit the United States to Participation in Military Sanctions, 38 American Journal of International Law (1944) at p. 682.

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behavior. It took similar measures on its own against Mexico, Haiti, the Dominican Republic, and Nicaragua, to protect American interests and also to exact payment of financial obligations on behalf of foreign creditors.

Although the President's power to send troops abroad to protect the national interest was at first interpreted narrowly and appeared almost synonymous with his power to protect American lives and property abroad, that definition was gradually broadened so that "By the end of the nineteenth century the capacity of the Executive to protect apparently without distinction the great variety of such interests, whether evidenced by statutes, treaties, international law, or broad foreign policy aims, was well documented." 21

In the past three decades there have been a number of occasions. when the President has independently deployed troops or taken other actions in the defense of our interests or foreign policy aims as he has seen them. President Franklin Roosevelt's destroyers for bases deal, as well as the numerous troop dispositions undertaken at his direction in the years immediately preceding U.S. entry into World War II, fall into this category.

Perhaps the most striking action undertaken by the Executive on his own initiative to defend a foreign policy goal of the U.S. was President Truman's decision to commit U.S. troops to repel the invasion of South Korea, a decision for which congressional approval was never sought.

In defending the President's action, the State Department argued that it had been taken under the United Nations Charter, which is part of both the treaty and international law that the President carries out, and to protect United States interests. According to a memorandum of July 3, 1950, prepared by the Department of State:

The President, as Commander in Chief of the Armed Forces of the United States, has full control over the use thereof. He also has authority to conduct the foreign relations of the United States. Since the beginning of United States history, he has upon numerous occasions utilized these powers in sending armed forces abroad. The preservation of the United Nations for the maintenance of peace is a cardinal interest of the United States. Both traditional international law and article 39 of the United Nations Charter and the resolution pursuant thereto authorize the United States to repel the armed aggression against the Republic of Korea. * * *

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.22

While there was considerable debate in Congress on the legality of the President's action, the issue became blurred because the action was taken under the auspices of the United Nations.

21 Harvard Law Review op. cit., p. 1777.

22 Authority of the President to Repel the Attack in Korea. Department of State Memorandum of July 3, 1950. Department of State Bulletin v. 23, July 31, 1950. pp. 173, 176-177.