intimate experience with that power in connection with the Benjamin Franklin's Treaties with France of 1778.11

The present debate about the respective war powers of the President and of Congress is a response to the bitter experience of Korea and Vietnam. Those wars were fought under the authority of treatiesthe United Nations Charter in the case of Korea, and the Southeast Asia Collective Defense Treaty in the case of Vietnam. Without reference to those treaties, and to the roles of the President and of Congress in making, interpreting, applying, and abrogating treaties, the conflicts in Korea and Vietnam are constitutionally unintelligible, and indeed bizarre. But the treatment of the problem is cursory, at best, in all four of the articles to which this letter is directed. Van Alstyne recognizes the issue when he writes

Second, even assuming a limited power in Congress to shift the determination to embark upon war to the President, under specified conditions expressed in clear and definite guidelines, the transfer of such authority cannot be accomplished by treaty. The House of Representatives' prerequisite consent to this nation's involvement in war was most deliberately required by the declaration of war clause after consideration of several alternatives, including the specific proposed alternative of vesting the power jointly in the Senate and President alone which was itself rejected. As the House does not consent to treaties, manifestly a treaty cannot be among the possible means of delegating its authority. To imply that the constitutional draftsmen could possibly have formulated a document so specific in its precautions against involvements of war while simultaneously creating an enormous loophole of exclusive Senate power to give it away by simple treaty ratification is wholly without logic or evidence.12

Van Alstyne's argument is perfectly logical. But, like so many logical arguments, it is destroyed by a page of history.

While the attempt to reconstruct the state of mind of the Founding Fathers is often shadowy and intangible work, we can be certain of one feature of their original intent: they accepted the possibility that the United States, like every other nation, could if it wished enter into treaties of military alliance. The United States had such an alliance with France, embodied in two treaties, plus a secret annex, a Treaty of Alliance, signed in Paris on February 6, 1778, and ratified on May 4, 1778, and abrogated by Act of Congress on July 7, 1798, and a Treaty of Amity and Commerce, signed on February 6, 1778, and ratified on May 4, 1778. The Founding Fathers regarded the alliance with gratitude and reverence as a pillar of the Nation's existence. Surely these two related treaties are covered by the provision of Article VI of the Constitution, that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." I attach a copy of the French treaties of 1778 to this letter, for ready reference.

For our purposes, two aspects of those treaties are of special importance, the American guarantee of "the present possessions of the Crown of France in America" in Article 11 of the Treaty of Alliance, and the provisions of Articles 21-29 of the Treaty of Amity and Commerce, which France, and many Americans, construed as authorizing France to fit out privateers and to establish consular prize courts in American ports, in the event of war between France and Great Britain, after the end of our War of Independence.

11 W. M. Malloy, "Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and other Powers, 1776-1909," pp. 468-483 (1910). 12 Van Alstyne, op. cit. supra, note 1, at p. 22.

France declared war on Great Britain in 1793, setting in train a spectacular chain of events which drew the United States into war with both France and Britain at different times, and led to the abrogation by Congress of the Treaty of Alliance, the destruction of the Federalist Party, and the end of the political career of John Adams.

It also led to an intensive examination of the respective constitutional authority of Congress and the Presidency in the conduct of foreign relations and the use of force, especially in relation to the French treaty-the only treaty involving the possible use of force to which the United States was a party between 1798 and 1945, when the Charter of the United Nations was ratified. The more active participants in these decisions, which have proved authoritative ever since, were Washington, Hamilton, Jay, Jefferson, Randolph, and Madison. It would be hard to challenge their credentials as expositors of the original intent.

When war between France and Britain broke out in 1793, President. Washington faced a terrible dilemma. The country was passionately pro-French, and anti-English. The state of public opinion was described by John Marshall in these terms:

Early in April, the declaration of war made by France against Great Britain and Holland reached the United States. This event restored full vivacity to a flame, which a peace of ten years had not been able to extinguish. A great majority of the American people deemed it criminal to remain unconcerned spectators of a conflict between their ancient enemy and republican France. The feeling upon this cccasion was almost universal. Men of all parties partook of it. Disregarding totally the circumstances which led to the rupture, except the order which had been given. to the French minister to leave London, and disregarding equally the fact that actual hostilities were first commenced by France, the war was confidently and generally pronounced a war of aggression on the part of Great Britain, undertaken with the sole purpose of imposing a monarchical government on the French people. The few who did not embrace these opinions, and they were certainly very few, were held up as objects of public detestation; and were calumniated as the tools of Britain, and the satellites of despotism.

Yet the disposition to engage in the war, was far from being general. The inclination of the public led to a full indulgence of the most extravagant partiality; but not many were willing to encounter the consequences which that indulgence would infallibly produce. The situation of America was precisely that, in which the wisdom and foresight of a prudent and enlightened government, was indispensably necessary to prevent the nation from inconsiderately precipitating itself into calamities, which its reflecting judgment would avoid.13

But there was no American Navy, and very little by way of an Army. If French privateers sailed out to raid the seas from American ports, the British would have the right under international law to engage in reprisals, both from Canada and from the sea, and they would surely do so. It was not too much to fear the end of the infant Republic. Determined to preserve neutrality despite the Treaty, Washington confronted conflicting advice. Some argued that only Congress could determine upon a course of neutrality-that the power to determine the status of the Nation under international law in relation to pending hostilities was within the exclusive authority of Congress. Congress alone could issue a formal declaration that the Nation was. at war, within the meaning of the law of nations. It followed, these men contended, that only Congress could issue a formal declaration. of neutrality. The greater power included the lesser one.

13 "The Life of George Washington," vol. II, pp. 256-257 (2d ed. 1834).

Hamilton, who agreed with Washington that the only safe course was neutrality, urged the President not to receive Citizen Genet as Ambassador, and not to recognize the revolutionary government in France. These decisions, Hamilton urged, were purely Presidential. If the President refused to recognize the new Government in France, he could treat the French Treaty as suspended until a better day, and avoid the conflict about whether the Treaty was compatible with American neutrality, and whether the President could issue a declaration of neutrality. Jefferson, as Secretary of State, came to support the policy of neutrality (although in deference to his sensibilities the word "neutrality" was avoided), but he was offended by the thought that revolutionary America would refuse to receive the representative of revolutionary France. Washington steered a careful course, balancing his prima donna ministers, and the domestic political forces they represented, and at the same time seeking to reassure both Britain and France, without provoking either to hostility. Thus he decided to receive Genet, in the first instance. Genet came, amid wild excitement, and began to commission privateers and undertook other military and political activities incompatible with American neutrality.

The astute President, with the support of his Cabinet, decided not to call Congress into special session, but issued a proclamation of neutrality on his own authority. Hamilton, who consulted with Jay on the subject, and had his concurrence, believed it to be entirely within the President's authority to determine the operation of national treaties in the first instance, as an important example of the right of the executive to decide upon the obligations of the country with regard to foreign nations.

*** To apply it to the case of France, if there had been a treaty of alliance, offensive and defensive, between the United States and that country, the unqualified acknowledgement of the new government would have put the United States in a condition to become an associate in the war with France, and would have laid the Legislature under an obligation, if required, and there was otherwise no valid excuse, of exercising its power of declaring war.

This serves as an example of the right of the executive, in certain cases, to determine the condition of the nation, though it may, in its consequences, affect the exercise of the power of the Legislature to declare war. Nevertheless, the executive cannot thereby control the exercise of that power. The Legislature is still free to perform its duties, according to its own sense of them; though the executive, in the exercise of its constitutional powers, may establish an antecedent state of things, which ought to weigh in the legislative decisions.

The division of the executive power in the Constitution creates a concurrent authority in the cases to which it relates.

Hence, in the instance stated, treaties can only be made by the President and Senate jointly; but their activity may be continued or suspended by the President alone.

No objection has been made to the President's having acknowledged the republic of France, by the reception of its minister, without having consulted the Senate; though that body is connected with him in the making of treaties, and though the consequence of his act of reception is to give operation to those heretofore made with that country. But he is censured for having declared the United States to be in a state of peace and neutrality with regard to the Powers at war, because the right of changing that state, and declaring war, belongs to the Legislature.

It deserves to be remarked, that as the participation of the Senate in the making of treaties, and the power of the Legislature to declare war, are exceptions out of the general "executive power" vested in the President, they are to be construed strictly, and ought to be extended no further than is essential to their execution.

While, therefore, the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the "executive power" to do whatever else the law of nations, co-operating with the treaties of the country, enjoin in the intercourse of the United States with foreign Powers.

In this distribution of authority, the wisdom of our Constitution is manifested. It is the province and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of

war.

But though it has been thought advisable to vindicate the authority of the executive on this broad and comprehensive ground, it was not absolutely necessary to do so. That clause of the Constitution which makes it his duty to "take care that the laws be faithfully executed," might alone have been relied upon, and this simple process of argument pursued:

The President is the Constitutional EXECUTOR of the laws. Our treaties, and the laws of nations, form a part of the law of the land. He who is to execute the laws must first judge for himself of their meaning. In order to the observance of that conduct which the laws of nations, combined with our treaties, prescribed to this country, in reference to the present war in Europe, it was necessary for the President to judge for himself, whether there was any thing in our treaties incompatible with an adherence to neutrality. Having decided that there was not, he had a right, and if in his opinion the interest of the nation required it, it was his duty as executor of the laws, to proclaim the neutrality of the nation, to exhort all persons to observe it, and to warn them of the penalties which would attend its non-observance.

The proclamation has been represented as enacting some new law. This is a view of it entirely erroneous. It only proclaims a fact, with regard to the existing state of the nation; informs the citizens of what the laws previously established require of them in that state, and notifies them that these laws will be put in execution against the infractors of them.14

The concurrent nature of the foreign relations power was soon demonstrated. The Government, seeking to stop the belligerent activities of Genet, brought indictments against several Americans for privateering in behalf of France. Indictments were obtained for violating the law of nations, and committing acts of war in violation of the international law duties of the United States, as proclaimed by the President. But juries would not convict. Congress then passed a Neutrality Act, supporting the President's course, and his interpretation of the Treaty of Alliance.

Of course in 1793, President Washington and then the Congress decided not to join France in war with Great Britain under the treaty, but to declare our neutrality. Suppose the President's initial decision had gone the other way, and had in turn been duly supported, or not opposed, by Congress? Suppose he had put garrisons and naval forces in the French islands of the Caribbean which were among the French possessions in America we had guaranteed to France "from the present time and forever" under article 11 of the Treaty of Alliance. Suppose he had convoyed vessels to those islands, and repelled British attacks on the vessels, or on the islands.

Would it be possible to say under those circumstances that the President could not respond to such "sudden" attacks exactly as if they were "sudden" attacks upon the United States? When through a treaty, or through a joint resolution of the Congress, or both, the United States guarantees the territorial integrity and political independence of an ally, or of another nation, can the President take no steps to implement that guarantee, to head off the danger that it might have to be fulfilled by war itself, without the prior consent in each case of Congress? Is it constitutional for a treaty to declare, as

14 Alexander Hamilton, Works (H. C. Lodge, ed.) "Pacificus," pp. 442-444, conveniently available, with Madison's answer, in E. S. Corwin, "The President's Control of Foreign Relations" (1917), c. 1.

article 5 of the North Atlantic Treaty does, that an armed attack against one or more of the allies shall be considered an attack against them all? That declaration flies in the face of the supposed constitutional principle Mr. Berger and others find in the original intent of the Founding Fathers. Their version of the Constitution would confine the President's emergency powers to attacks on the territory of the United States. Either the treaty is unconstitutional, or their version of the orginal intent is inadequate and erroneous.

The reasoning of Van Alstyne, Berger and Wormuth would equally disable the United States from participating in the activities of the United Nations, as the policies adopted by the United Nations in Korea, the Congo, Greece, and Rhodesia, among others, demonstrate. That organization does sometimes authorize or indeed require the use of coercive measures, including the use of force, both under article 51 and chapter VII of the charter. Their theory would declare such activities under the charter, and the United Nations Participation Act, unconstitutional.

Berger notes with apparent approval the activities of Presidents Wilson and Roosevelt before the First and Second World Wars, when they convoyed vessels, and, in President Roosevelt's case, established bases in Greenland, Iceland, and Bermuda, without benefit of a treaty obligation to Britain or France, or a joint resolution of the Congress 15 Would he equally approve preventive and precautionary steps of this order with regard to the obligations of a treaty?

In applying a treaty, there is clearly a spectrum of decisions that can and should be made, from the purely Presidential to the purely congressional. As the experience of 1793 attests, the President has an independent power to interpret and apply the treaty in the first instance as the supreme law of the land which he must enforce, and in the exercise of his share of the national authority to conduct foreign relations. That is what the United States does every day in voting at the United Nations. When those decisions involve ccercive measures, or indeed other substantive changes, Congress may tacitly accept the President's construction and application of the treaty, or overrule it, as it did recently in the case of imports from Rhodesia. Exactly the same process occurs in the conduct of our affairs at the North Atlantic Council, the International Monetary Fund, and many other multilateral bodies based on treaties or executive agreements made under the authority of treaties or statutes, or cn a purely Presidential basis.

This realistic sense of the wide range of policies and actions which may be involved in carrying out a treaty obligation animates the testimony of Secretary of State Dulles in his exposition of the Southeast Asia Collective Defense Treaty before the Senate Foreign Relations Committee in 1954. Article IV of that treaty provides:

1. Each Party recognizes that aggression by means of armed attack in the treaty area against any of the Parties or against any State or territory which the Parties by unanimous agreement may hereafter designate, would endanger its own peace and safety, and agrees that it will in that event act to meet the common danger in accordance with its constitutional processes. Measures taken under this paragraph shall be immediately reported to the Security Council of the United Nations.

2. If, in the opinion of any of the Parties, the inviolability or the integrity of the territory or the sovereignty or political independence of any Party in the treaty area or of any other State or territory to which the provisions of paragraph 1 of this Article from time to time apply is threatened by any fact or situation which 15 Berger, op. cit. supra, note 1, 121 U. of Pa. L. Rev. at p. 66.