STATEMENT OF PROF. RUHL J. BARTLETT, FLETCHER SCHOOL OF LAW AND DIPLOMACY

Professor BARTLETT. Thank you, Senator Fullbright.

If I can be of any appreciable service to the committee it will be in the form of providing a brief historical survey of the events and ideas that have led to what appears to be the present situation of the Congress in relation to its influence in foreign affairs and with particular attention to the use abroad of the armed forces of the United States. I am aware, Mr. Chairman, of the speeches and comments on these subjects that have already been made in the Senate and committee hearings by distinguished Senators whose competence concerning the Constitution is greater than mine and whose cogent remarks are a matter of record. No need exists to repeat what they have said. I would like to refer, however, in a few particulars to the Constitution and to its framers for the purposes of emphasis and of introduction to my later remarks.

FRAMERS OF THE CONSTITUTION

The framers of the Constitution were surely a remarkable group of men and they had before them a wealth of American experience in virtual self-government, experience they had acquired either by observation and participation in government or through study of the past. From the founding of the first English colony in America until the Revolution there had been 165 years of colonial rule, a period almost as long as the time that has elapsed since the adoption of the Constitution. The framers were familiar with this era and with the experiences of the Continental Congresses, the Congress of the Confederation, and with the provisions of the several State constitutions. They were deeply impressed with the power of the British Crown to declare war and were fearful of establishing an executive authority that might develop monarchial tendencies. They feared that the desire for achievement, or fame, or prestige, or the exhilaration derived from the exercise of power, or belief in their superior wisdom regarding the national interest might lead the Executive away from the necessary restraints of constitutional government.

The framers of the Constitution feared also the existence of large standing armies in peacetime and realized the danger of military supremacy over civilian control. At the same time, on the hard basis of their experiences, they saw the need of conferring on the central government exclusive authority over foreign affairs, of making the President commander in chief of the armed forces of the United States and of the militia when called into national services, and of providing for the possibility of a standing military establishment, particularly in view of the needs of continuous frontier defense.

AUTHORITY OF CONGRESS UNDER CONSTITUTION

The complex constitutional arrangements under which the fears just mentioned were quieted and the obvious needs of the Nation satisfied are well known to this committee and to all students of the Constitution. The important consideration here is that the authority

to initiate war was not divided between the Executive and the Congress; it was vested in the Congress and the Congress alone. It was clearly recognized that the President would have not only the right but the duty to use the armed forces at his disposal to "repel" sudden attacks on the United States, and that as commander in chief he would direct the armed forces for any purpose specified by the Congress, but these authorities and duties did not extend to the initiation of hostilities.

This is not a matter of interpretation or controversy: it is a simple fact. When Jefferson learned of the provision of the Constitution that placed the authority to declare war solely in the Congress, he considered this as one of the most wise provisions, for, as he said, it permitted the legislature "to hold in leash the dogs of war.”

PRECEDENTS SET BY FIRST FOUR PRESIDENTS

Presidents Washington and Adams scrupulously complied with the Constitution in placing responsibility on the Congress for deciding on any offensive action of the armed forces, Washington in regard to Indian affairs and Adams in connection with maritime matters. The latter arose as the result of attacks by France on American shipping contrary to international law and to the Franco-American treaty of amity and commerce.

The Congress "authorized" the President to protect American ships against French spoilation. This episode which is sometimes called the undeclared war, or the naval war, or the quasi-war with France would probably be called a limited war today, and is interesting not only because the President took only such action as was authorized by Congress, but also because it was a clear precedent that offensive military action short of a declared war was within the province of Congress.

Soon after Mr. Jefferson became President he sent a naval squadron to the Mediterranean with instructions to protect American commerce against piracy, but the Navy was not permitted to engage in offensive action, even retaliation, for in the President's view this would amount to war which the Congress had not declared. Subsequently, military action against piracy from Tripoli and other north African states was authorized by Congress. The same deference to the Congress with regard to the use of the armed forces that was shown by Jefferson was followed by President Madison in connection with problems of foreign policy in east and west Florida.

The first four Presidents are mentioned in particular because they were of the generation of the Revolution and of the establishment of the Constitution, but broadly speaking the precedents they established set the pattern for Presidential restraint in the use of the armed forces throughout the 19th century.

When the United States was invited to adhere to the "Holy Alliance," the Secretary of State replied that adherence to such an alliance would be for Congress to determine. After President Monroe had delivered his famous message to the Congress of December 1823, and Colombia inquired exactly what the United States would do if a European nation intervened in Latin America the Secretary of State replied that it would be a matter for the Congress to determine.

INCIDENTS OF EXPANSION OF EXECUTIVE AUTHORITY

During the 19th century the Navy was used in many instances to suppress piracy, to suppress the slave trade by American ships, and to protect American lives and property in areas where government was temporarily in abeyance because of civil disorder or where what were called primitive societies existed which could not be dealt with through diplomatic channels and where acts of violence had occurred against American citizens. In such cases it was considered that the President had authority to act under general laws and was not required to seek the approval of the Congress in each case.

The only expansion of executive authority in these matters was the occasional use of reprisals in the so-called primitive areas although in a general sense reprisals were considered as acts that required specific congressional approval. In addition to these items there developed during the 19th century the use of the armed forces without specific authorization of Congress in what was called hot pursuit across territorial borders of individuals who had committed criminal acts within American territory.

President James Buchanan's statement of December 1859, that "without the authority of Congress the President cannot fire a hostile gun in any case except to repel attacks of an enemy," represented perhaps an ultraconservative view of the executive authority, but to a large degree it was characteristic of Presidential thinking during the 18th and 19th centuries.

Some people might reason that President Polk exceeded his constitutional powers when he sent troops to the Rio Grande River in 1846, that President Grant exceeded his powers in connection with his attempt to annex the Dominican Republic, and that President McKinley stretched beyond reason the argument that the armed forces were being used to protect life and property when he sent troops into China at the time of the Boxer Rebellion.

It is doubtful, however, that these episodes provided significant exceptions to the general rule. The use of the armed forces without specific authorization of Congress under what may be called 19th century rules continued into the 20th century, and these cases: suppression of piracy, suppression of the slave trade in American ships, protection of American commerce in primitive areas, "hot pursuit" of alleged criminals, and the protection of American life and property in places where civil order was in abeyance make up the great majority of cases where the armed forces have been used without specific authority of Congress in each case. It was always understood that any use of troops in places of civil disorder was to be neutral as far as local factions were concerned, and that troops were not to be used against a sovereign state without congressional authority or in such a way as to constitute war.

USE OF THE ARMED FORCES IN THE 20TH CENTURY

Major advances in the use of the armed forces of the United States under executive authority developed in the 20th century. The first instance was the use of the Navy in 1903 to prevent the landing of Colombian troops to suppress a rebellion in the Colombian state of Panama. President Theodore Roosevelt held that he acted in this

instance under authority of the Colombian-American Treaty of 1846. It is highly doubtful that this treaty authorized the United States to use its armed forces under the circumstances that existed in Panama, but this is not the issue here.

The action taken by President Roosevelt was against a sovereign state, might have led to war, and was certainly in derogation of the authority of Congress to declare war under any interpretation of that right consistent with the Constitution or with any precedent that had been firmly established during the past century and over. President Roosevelt sent troops into Cuba theoretically under terms of a treaty between the United States and Cuba, and used the Navy in the Dominican Republic pending the approval of a treaty between that country and the United States.

When the Senate failed to act on the treaty its principal provisions were put into effect by extensive agreement. This affair was probably more relative to the right of the Senate to approve treaties than the right of Congress to control offensive use of the armed forces, but both rights were involved. Secretary of War William H. Taft, defended President Roosevelt's right to send troops to Cuba under the theory that since the United States had a treaty right to intervene in Cuba in accordance with the Cuban-American Treaty of 1903, and since a treaty is the supreme law of the land, the President could execute the treaty without authority from Congress. This theory had been advocated earlier, but there was no foundation for it in the Constitution or in any consistent practice up to that time.

PROTECTION OF AMERICAN LIFE AND PROPERTY

When Mr. Taft became President and had an occasion to send troops into Cuba, his Secretary of State defended the action under the right of the President to protect American life and property rather than the alleged right to execute treaties.

During the next quarter century after 1903 American troops were landed in at least a half-dozen countries of the Caribbean area generally under the guise of protecting life and property, but often for political reasons, and in some instances such as in Haiti, the Dominican Republic, and Nicaragua, American military government was established for a period of years. As time passed some uneasiness existed in the Congress about the use of the armed forces in the Caribbean area without congressional authority but executive policy was always defended with the traditional arguments.

A new departure in Presidential action arose in connection with the Tampico and Vera Cruz incidents of 1914. A detailed account of the American occupation of Vera Cruz is not necessary. The important consideration is that whatever may have been the wisdom of his reasons, President Woodrow Wilson decided that military force should be used against Mexico in order, in the President's words, to "enforce respect" for the Government of the United States.

CONGRESSIONAL RESOLUTION ON PRESIDENT'S USE OF ARMED FORCES

The President told Congress that he believed the Executive possessed the authority to use the armed forces for the purpose stated but thought it would be better in such a serious action to have congres

sional approval. The House of Representatives almost immediately complied by passing a resolution that the President was "justified" in the employment of the armed forces "to enforce amends to the Government of the United States for affronts and indignities committed against it."

The resolution as passed by the House met with opposition in the Senate, not so much with its purpose as with its wording, and produced a debate which centered around the authority of the Congress to declare war. Some Senators thought the President had authority to take his contemplated action, some thought it would be an act of war and that Congress should declare war.

While the Senate was considering the matter, the President decided that an emergency existed requiring immediate action and ordered the seizure of Vera Cruz. This act intensified somewhat the debate in the Senate but in the end it passed by a large majority a resolution similar to but not identical with the one passed by the House of Representatives.

This left the question of Presidential authority exactly where it was at the beginning of the episode. The seizure of Vera Cruz was in effect an act of reprisal, and although such acts had frequently been authorized by the Executive during the 19th century in areas designated as "primitive" and primarily in Eastern Asia, the landing at Vera Cruz could not be justified under any of the earlier precedents.

GENERAL PERSHING'S EXPEDITION INTO MEXICO

The expedition of Gen. John J. Pershing into Mexico after the raid of March 1916 on Columbus, New Mexico, by Francisco Villa is doubtless well known to the committee. The interesting consideration about this affair is that the Congress had been willing to authorize the President to intervene in Mexico on account of incidents there involving American citizens prior to the Villa raid.

The President did not favor such action by Congress apparently because he opposed general intervention in Mexico which congressional action might promote. After the Villa raid the President sent the Pershing expedition into Mexico without congressional authorization and under the doctrine of the President's right to use the armed forces in the "hot pursuit" of bandits.

The Senate, nevertheless, passed a resolution after the Pershing expedition had entered Mexico approving the use of the armed forces for the sole purpose of apprehending the Villa raiders. This resolution was never reported out of the Committee on Foreign Affairs of the House of Representatives. What started as a "hot pursuit" episode which the President thought would be terminated quickly, became a prolonged intervention lasting almost two years and led very close to outright war with Mexico.

Although the President never requested congressional authority in this affair, he was prepared to ask for approval to use the armed forces against Mexico if conflict with Mexican governmental forces had broken out. It would seem beyond doubt that with American troops in Mexico, perhaps engaged in actual conflict and their lives endangered, the Congress would have been under enormous pressure to comply with a Presidential request for a declaration of war.

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