1 It is presumed that this does not conflict with Article 24, by which all members of the United Nations confer on the Security Council “primary responsibility for the maintenance of international peace and security,” and agree that the Council “acts on their behalf.“

2 See Edward S. Corwin, Cong. Rec., August 1,1945, Appendix, pp. A3994-3998, who, on the authority of the Lend-Lease Act of March 11, 1941, concludes that the Congress can delegate its war-making powers to the President. We may doubt the legality of the Lend- Lease Act in international law and this construction as a matter of Constitutional law. Congress cannot delegate its war-declaring or war-making power. Senator Vandenbergseems to share Mr. Corwin's view. The “destroyer deal” (1940) and the armed occupation of Iceland and Greenland (1941) cannot be explained legally. As acts of war, they needed the assent of Congress. For the “destroyer deal” this was inferentially given in 1941.

3 It is uncertain whether this commitment includes only the original agreement or subsequent agreements as to how and where the quota shall be used. The Security Council has power to decree other acts of war, like sanctions, blockades, etc.

4 See the list of American interventions (about 150) and a consideration of the Constitutional questions here under discussion in James G. Rogers, World Policing and the Constitution, Boston, 1945, pp. 123. See also, on the practical impossibility of an international police force, Fred Rodell in Time, Sept. 13, 1943, pp. 105-108.

5 It is impossible to reach agreement on all the instances in which American troops have been landed abroad for the protection of American citizens. Clark lists some thirty non- American interventions before 1911, mostly in the weak countries of Asia and the Pacific Islands. He lists forty-three interventions in China from 1911 to 1933. Most of the other interventions (about seventy) occurred in the Caribbean countries and Central America. The interventions were occasioned mostly by local disorders, revolutions, supervising elections, offenses against American citizens (and therefore punitive in nature), the pursuit of pirates and slavers, at the request of the local government, under extraterritoriality or other treaty, a mere demonstration of force, and a variety of other occasions. The number of troops was usually very few, under 100, although about 5,000 were involved in the Boxer troubles in China, and the legation guards in Peking and elsewhere numbered about 1,000 men. When the troops exceeded about 100 in number, the consent of Congress will often be found. Only the interventions in China and a few of those in the Caribbean lasted more than a few days. None of the interventions conducted at Presidential initiative were expected to lead to war, though some authorized by Congress led to a war or an analogous status. We are not now discussing rebellion or invasion, where the President can use the armed forces to defend the nation without the preliminary consent of Congress. Nor could we decline an undeclared war. Congress usually “recognizes”the existence of a state of war, thus throwing the onus of starting war on the other party.

6 Geofroy v. Riggs, 1890, 133 U. S. 268.

7 (1920) :252 U.S. 416.

8 Same, at 439-4.

9 Professor Corwin seems to differ from this opinion, although he finds no precedent in the landings abroad of American troops to protect American citizens.

10 There is a recent disposition to “by-pass” the treaty-making power when action by Congress is necessary to effectuate a policy. This was done in the case of the Panama Resolution of 1942-1943, which carried out an undisclosed executive agreement and should have been a treaty; see Herbert Briggs, “Treaties, Executive Agreements, and the Panama Joint Resolution of 1943,”in Am. Pol. Sci. Rev., Vol. 37 (1943), p. 686. It was done in 1944 in the case of UNRRA, when a multilateral executive agreement of 1943 was cast in the form of a bill and, after changes by representatives of the Senate and by the Congress, was passed by both Houses; see Briggs, Herbert, “The UNRRA Agreement and Congress,” this Journal, Vol. 38 (1944), p. 650.Google Scholar It was done in the case of the Bretton Woods Agreement in 1945, also cast in the form of a bill, amended in each house, and passed by both Houses: Cong. Rec, July 19,1945, p. 7908, and July 20,1945, p. 8003. It was done in the resolution by which the United States joined the Food and Agricultural Organization: Cong. Rec., July 21,1945, p. 8043. In all these cases a treaty should have preceded the vote of Congress.

11 See the following two quasi-official statements on American law and policy:

Senator Fulbright: “Within the short space of 5 years this nation has come to recognize the utter futility and absurdity of passive detachment from the affairs of the world. Regardless of the skeptics, who think people never learn from experience, I believe our people now recognize that neutrality and non intervention constitute a disastrous foreign policy.” (Cong. Rec, July 23, 1945, p. 8097.)

Assistant Secretary of State Berle, November, 1943: “Nor have we any intention to scrap the well-settled policy of non-intervention in the affairs of other states. The policy of non-intervention in other peoples’ affairs is and must be the first principle of sound doctrine. Unless this is the settled practice of nations, there can be no principle of sovereign equality among peace-loving states and probably no permanent peace at all.” (Department of State Bulletin, Nov. 27, 1943, p. 384, 386.) If Senator Fulbright's view becomes the official national policy, it can readily be imagined that, without knowing much about the circumstances, the United States will be a party to every war occurring anywhere. This is supposed to make for the peace of the world. There is a considerable opinion urging United States intervention to insure the conformity of foreign domestic governments with American wishes. See Loewenstein, “The Trojan Horse,“ in The Nation, Vol. 159 (1944), p. 235. Criticism in Orton, The Liberal Tradition, New Haven, 1945, pp. 231-239. What legal effect the atomic bomb will have is unpredictable.