appears from your letter of the 16th instant they are provided for the purpose of forcibly resisting the Peruvian authorities. You must be aware that such a resistance would be an act of private war, which can never receive any countenance from this Government. The naval commander of the United States in the Pacific will also, under existing circumstances, be directed to abstain from protecting any vessels of the United States which may visit those islands for the purposes forbidden by the decrees of the Peruvian Government until he shall receive further orders."

Mr. Webster, Sec. of State, to Mr. Jewett, Aug. 21, 1852, 40 MS. Dom.
Let. 300.

III. POWER TO MAKE.

§ 1105.

"To this state of general peace with which we have been blessed. one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger."

President Jefferson, annual message, Dec. 8, 1801, Richardson's Messages,
I. 326

On December 6, 1805, President Jefferson, when discussing Spanish depredations on our territory, said: "Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided. I have barely instructed the officers stationed in the neighborhood of the aggressions, to protect our citizens from violence, to patrol within the borders actually delivered to us, and not to go out of them but when necessary to repel an inroad, or to rescue a citizen, or his property."

See 2 Am. State Papers, For. Rel. 613.

"The act of March 3, 1815, having premised that the Dey of Algiers had commenced a predatory warfare against the United States, gave to the President the same authority as in the preceding

case of Tripoli, to instruct the commanders of public armed vessels, and to grant commissions to the owners of private armed vessels, to subdue, seize, and make prize of all vessels, goods, and effects of or belonging to the Dey of Algiers or to his subjects. (3 Stat. 230.)"

Lawrence's Wheaton (1863), 507.

A naval officer of the United States can not resort to force to compel delivery to him of American seamen unjustly imprisoned on a vessel in a foreign port. His duty is to demand the delivery of such seamen, and if this is refused, to resort to the civil authorities. He can, however, if there is an attempt forcibly to seize such seamen from their own vessels, forcibly intervene. "The employment of force is justifiable in resisting aggressions before they are complete. But when they are consummated, the intervention of the authority of government becomes necessary if redress is refused by the aggressor."

Mr. Clay, Sec. of State, to Mr. Rebello, Mar. 22, 1827, MS. Notes to Foreign

Legs. III. 338.

"But if the claim were never so just, if it had been a case in which this Government were bound officially to interfere and if the amount due to the claimant had been acknowledged by the Hawaiian Government, the President could not employ the naval force of the United State to enforce its payment without the authority of an act of Congress. The war-making power alone can authorize such a measure. The President, therefore, regrets that you should have so far mistaken your powers as to have called upon Commander Du Pont of the Cyane in September last and inquired of him whether he would consider any directions or instructions from me [you] in my [your] official capacity as at all obligatory upon him in case I [you] should find it necessary to use the force under his command to compel compliance with any demands I [you] should think proper to make on this [Hawaiian] Government.' Commander Du Pont very properly replied in the negative; and informed you that under his general instructions he should feel bound to cultivate the most friendly relations with all the officials of this [the Hawaiian] Government.”

Mr. Buchanan, Sec. of State, to Mr. Ten Eyck, comr. to Il awaii, Aug. 28, 1848, MS. Inst. Hawaii, H. 1.

"In the first place, I have to say that the war-making power in this Government rests entirely with Congress; and that the President can authorize belligerent operations only in the cases expressly provided for by the Constitution and the laws. By these no power is given to the Executive to oppose an attack by one independent nation on the possessions of another. We are bound to regard both France and Hawaii as independent states, and equally independent, and though

the general policy of the Government might lead it to take part with either in a controversy with the other, still, if this interference be an act of hostile force, it is not within the constitutional power of the President; and still less is it within the power of any subordinate agent of government, civil or military."

Mr. Webster, Sec. of State, to Mr. Severance, July 14, 1851, MS. Inst.
Hawaii, II. 30; H. Ex. Doc. 48, 53 Cong. 2 sess. 342.

"This proposition, looking to a participation by the United States in the existing hostilities against China, makes it proper to remind your lordship that, under the Constitution of the United States, the executive branch of this Government is not the war-making power. The exercise of that great attribute of sovereignty is vested in Congress, and the President has no authority to order aggressive hostilities to be undertaken.

"Our naval officers have the right-it is their duty, indeed-to employ the forces under their command, not only in self-defense, but for the protection of the persons and property of our citizens when exposed to acts of lawless outrage, and this they have done both in China and elsewhere, and will do again when necessary. But military expeditions into the Chinese territory can not be undertaken without the authority of the National Legislature.”

Mr. Cass, Sec. of State, to Lord Napier, Apr. 10, 1857, MS. Notes to Great
Britain, III. 338.

"I deem it my duty once more earnestly to recommend to Congress the passage of a law authorizing the President to employ the naval force at his command for the purpose of protecting the lives and property of Amercan citizens passing in transit across the Panama, Nicaragua, and Tehuantepec routes against sudden and lawless outbreaks and depredations. I shall not repeat the arguments employed in former messages in support of this measure. Suffice it to say that the lives of many of our people and the security of vast amounts of treasure passing and repassing over one or more of these routes between the Atlantic and Pacific may be deeply involved in the action of Congress on this subject.

"I would also again recommend to Congress that authority be given to the President to employ the naval force to protect American merchant vessels, their crews and cargoes, against violent and lawless seizure and confiscation in the ports of Mexico and the SpanishAmerican states when these countries may be in a disturbed and revolutionary condition. The mere knowledge that such an authority had been conferred, as I have already stated, would of itself in a great degree prevent the evil. Neither would this require any additional appropriation for the naval service.

"The chief objection urged against the grant of this authority is that Congress by conferring it would violate the Constitution; that it would be a transfer of the war-making, or, strictly speaking, the war-declaring, power to the Executive. If this were well founded, it would, of course, be conclusive. A very brief examination, however, will place this objection at rest.

"Congress possess the sole and exclusive power under the Constitution to declare war.' They alone can raise and support armies,' and provide and maintain a navy.' But after Congress shall have declared war and provided the force necessary to carry it on the President, as Commander in Chief of the Army and Navy, can alone employ this force in making war against the enemy. This is the plain language, and history proves that it was the well-known intention of the framers, of the Constitution."

President Buchanan, annual message, Dec. 19, 1859, Richardson's Messages, V. 569.

"The United States believe it to be their duty, and they mean to execute it, to watch over the persons and property of their citizens visiting foreign countries, and to intervene for their protection, when such action is justified by existing circumstances and by the law of

nations."

“In addition to this general declaration, applicable in all countries, there were some peculiar principles asserted, arising out of the condition of Nicaragua and of the transit route from ocean to ocean across its territory. The right of the United States to take care that the public contracts made with our citizens for the construction and use of that route of intercommunication are faithfully observed was explained and maintained, and so far as the legal power of the Executive extends will be enforced, if necessary. This Government

disavowed both the authority and the disposition to determine the conflicting interests of the various claimants, but it required the Government of Nicaragua to act in good faith toward them. And it also announced, that it would not recognize as valid any declaration of forfeiture, past or to come, unless pronounced in conformity with the provisions of the contract, if there are any, or if there is no provision for that purpose, then, unless there has been a fair and impartial investigation in such a manner as to satisfy the United States that the proceeding has been just, and that the decision ought to be submitted to...

"You seem to suppose that the defence of the rights of our country or its citizens, and the avowal that their violation will justify the employment of force, commits the Executive in your case to resort to it, and you accordingly call for the application of the armed

force of the United States for the protection of your rights in Nicaragua.

"The employment of the national force, under such circumstances, for the invasion of Nicaragua is an act of war, and however just it may be, it is a measure which Congress alone possesses the constitutional power to adopt. The President has in three separate messages brought to the attention of that body this subject of the employment of force for the protection of our citizens, and he has stated with equal perspicuity and strength the reasons which imperatively call for the adoption of this policy in various countries upon this continent. In his message to the Senate and House of Representatives of February 18, 1859, the President remarks, referring to a preceding message, that the executive government of this country in its intercourse with other nations is limited to the employment of diplomacy alone, when this fails it can proceed no farther.' But these appeals to Congress have produced no result.

"Cases may occur where the circumstances may justify the employment of our naval or military forces, without special legislative provision, for the protection of our citizens from outrage, but it is not necessary to examine the extent or limit of this right, because the principle is inapplicable in your case, where you demand a forcible interposition with the Nicaraguan Government, in order to give effect to the contract to which you refer.

"In the first place, if the President were empowered to use force, before its application some injurious act must have been consummated, and it would also be necessary that all the facts should be investigated in order to ascertain the justice of armed interference. The principles are laid down in the despatch to General Lamar, but their application depends upon the proceedings of the parties."

Mr. Cass, Sec. of State, to Mr. Body, Sec. Am. Atlantic & Pacific Ship
Canal Co., March 3, 1860, 52 MS. Dom. Let. 11.

For the instruction to Gen. Lamar, June 3, 1858, see MS. Inst. Am. States,
XV. 312, and supra.

As to the action of the President in directing the Navy to protect Santo Domingo during negotiations for annexation, see supra, § 85. Mr. Harlan, in a speech in the Senate, March 29, 1871, defending the President against the criticisms of Mr. Schurz, referred to our Indian wars, to the sending of troops into Utah for the purpose of enforcing the law, to the sending of military forces to the northern boundary during the dispute with Great Britain, to the bombardment of Greytown, to the bombardment of Japanese forts (by the combined navies of the United States, France, and England), and to acts of war committed by foreign fleets within the waters of China. A distinction was drawn in the speeches in defense of the President between mak