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The Share of the President of the United States in a Declaration of War

Published online by Cambridge University Press:  04 May 2017

Simeon E. Baldwin
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Extract

A Subject of warm debate in the convention which framed the Constitution of the United States was where the power of making or declaring war should be vested.

The committee of detail reported in favor of giving Congress power “to make war.” Pinkney opposed this on the floor, preferring to bestow it on the Senate. That this was also the view of Hamilton appears in the draft of a constitution which he gave to Madison, towards the close of the convention. In the debate on the report, Pinkney urged that it “would be singular for one authority to make war, and another, peace.” Butler, who followed him, thought the President was the proper depositary. It was then moved to make the clause read “to declare war,” instead of “to make war.” Gerry said that he had “never expected to hear in a republic a motion to empower the executive alone to declare war.” Mason thought that neither the executive nor the Senate could safely be intrusted with the power of war; and finally the word declare was substituted for make by the large majority of States.

Type
Research Article
Information
American Journal of International Law , Volume 12 , Issue 1 , January 1918 , pp. 1 - 14
Copyright
Copyright © American Society of International Law 1918

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References

1 Farrand, , Records of the Federal Convention, III, 619, 622 Google Scholar.

2 Ibid., II, 143, 168, 182; Elliot, Debates, V, 439.

3 Woolsey, Introduction to the Study of International Law, sec. 115; Calvo, Le Droit International, IV, sees. 1903 et seq.; Takahashi, , International Law applied to the Russo-Japanese War, Chap. 1, sec. 1; this Journal, 2: 57 Google Scholar.

4 Bas v. Tingy, 4 Dallas, 37: see Talbot v. Seaman, 1 Cranch, 1.

5 Life and Works, X, 167.

6 Scott, The Hague Peace Conferences, I, 519, 522.

7 Talbot v. Janson, 3 Dall., 133,160.

8 American Political Science Review, XI, 660.

9 VII, 153.

10 Fleming v. Page, 9 How., 603, 614.

11 Stewart v. Kahn, 11 Wall., 493, 507.

12 Ex parte Milligan, 4 Wall., 2, 120.