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.

The first impression that we obtain upon opening this book is one rather of surprise at the extraordinarily wide range of subjects which Mr. Root has treated in the course of his addresses and speeches on international questions, to which the volume is confined, — a range that covers the ground and sets forth the essential facts as well as the arguments which have served to build up American public opinion and to direct the international thought of this country for almost a generation. The relations with Japan, the Panama Canal, the Conferences at The Hague, the rights and duties of nations, and the protection of citizens residing abroad, have filled a large part of public attention during the last quarter of a century; indeed, some of the questions included here, like the intercourse with Mexico and the Monroe Doctrine, have held the public interest since long before our own time.

Writers on international law are now in substantial agreement that a belligerent ought not to detain enemy subjects, confiscate their property, or subject them to any disabilities, further than such as the protection of the national security and defense may require. Vattel, in 1758, appears to have been the first writer to adopt the view that had come to be generally held by publicists at the time the present war broke out. “The sovereign,” he said, “who declares war has not the right to detain the subjects of the enemy who are found within his state, nor their effects. They have come to his country in public faith; in permitting them to enter and live in the territory, he has tacitly promised them all liberty and surety for their return. A suitable time should be given them to withdraw with their goods; and if they stay beyond the time prescribed, it is lawful that they should be treated as enemies, though as disarmed enemies.” Alexander Hamilton, in defending the Jay Treaty of 1794, declared that the right of holding property in a country always implies a duty on the part of its government to protect that property and to secure to the owner full enjoyment of it. “Whenever, therefore,” he added, “a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security — the property of a foreigner placed in another country, by permission of its laws, may be justly regarded as a deposit of which the society is the trustee.” Westlake, in 1907, adverting to the numerous treaty stipulations on the subject, remarked that they might be deemed to amount to “a general agreement, on the part of governments, that modern international law forbids making prisoners the persons of enemy subjects in the territory at the outbreak of war, or, saving the right of expulsion in case of apprehended danger to the state, refusing them the right of continuous residence during good behavior.” Referring to the right of expulsion, Ullmann, a respectable German authority, remarks that expulsion can be resorted to against the subjects of the enemy state, but only after a suitable delay has been offered in order to enable those affected to wind up their affairs.

At the present moment, when the very existence of international law as a practical element in the conduct of human affairs is doubted or derided by many and when such precepts as are claimed to be fundamental in that law itself are daily set at nought by belligerents in the world conflict, it has been thought that a brief outline of the earliest conceptions characterizing international jurisprudence will prove neither, useless nor unwelcome.

The term “International Law” has, in the usage of our day, quite superseded the earlier expression “law of nations,” long since adopted as a translation of the Latin phrase jus gentium. The expression “International Law,” however, so familiar to us, properly denotes a wholly variant conception. In modern days it is used by the celebrated D’Aguesseau and occurs in Volume II of his works, page 337 in the edition of 1773; it is shortly afterward employed by Bentham in his “Principles of Morals and Legislation” (XVII, 326, n. 1), and has since his time come into general use. D’Aguesseau’s expression (droit entre les gens) is doubtless, in its turn, an adaptation from Zouche, Professor of Civil Law at Oxford, who uses, about 1650, the term jus inter gentes in harmony with the thought of Grotius as expressed in the opening paragraph of the Prolegomena to his De Jure Belli Ac Pacis, where Grotius explains at the outset the intended subject of his great treatise, — at jus illud quod inter populos plures aut populorum rectores intercedit, sire ab ipsa natura profectum, aut divinis constitutum legibus, sine moribus et pacto tacito introductum, attigerunt pauci, universim ac certo ordine tractavit hactenus nemo; cum tamen id fieri intersit humani generis.

The Constitution wholeheartedly accepted Montesquieu’s theory of the separation of the powers of government into three departments, and the courts have maintained as a fundamental principle of constitutional law that no department shall exercise powers properly belonging to either of the others. The treaty-making power is established in Article II of the Constitution dealing with the executive, and consequently treaty-making has been ordinarily considered one power of the executive department. It is, however, stated that “the executive power shall be vested in a President of the United States of America,” whereas the treaty-making power is vested in the President acting “by and with the advice and consent of the Senate — provided two-thirds of the senators present concur.” Furthermore “treaties made … under the authority of the United States” are “the supreme law of the land.” Thus, both by composition and function the treaty-making power appears to be fully as much legislative as executive, a situation emphasized by Hamilton in the Federalist.

The shade of distinction sought to be shown by the title of this paper may require explanation. Imperfect wording involves either carelessness or ignorance; bad faith indicates dishonesty; nonexecution or disregard implies laxness in the government, if not carelessness; adverse or hostile municipal or judicial action connotes lack of coordination between the internal and external affairs of the State. It follows that such adverse action may be considered from a practical point of view as almost a normal kind of violence against international contracts. It is not to be excused on that account, but it may be considered as a frictional incident almost inseparable under some conditions from the existence of a State. Given either a government of definitely separated elements, such as the United States, or a government without much stability, or a State founded on a type of civilization different from the European order, and this sort of violation of treaty may be forecasted with certainty. Fortunately, however, the instances that cause contractual friction of this sort are of the grosser kinds of personal violence, or are commercial; they are not of a political character, cannot be said to involve policy, and only by a stretch of the imagination involve the tweedledum and tweedledee of international relations, “national honor and vital interest.” They are consequently extremely susceptible to simple and orderly solution.