740.0011 (European War 1939)/12–2041

Memorandum by the Secretary of State to President Roosevelt

Referring further to your personal inquiry of me at Cabinet as to whether considered legal and valid that provision of the Supreme War Council draft to the effect that the President can pledge himself as a member of the War Council “not to cease hostilities against or conclude a separate armistice with the common enemies or any of them, except by common agreement”, herewith enclose opinion by Mr. Hackworth prepared at my request which, in my judgment, makes clear the legal and constitutional validity of this provision. I hope you may have a chance to glance over it.

C[ordell] H[ull]

Memorandum by the Legal Adviser ( Hackworth ) to the Secretary of State

Termination of Hostilities

The Secretary: do not feel that there is the slightest question regarding an undertaking by the President “not to cease hostilities against or conclude a separate armistice with the common enemies or any of them, except by common agreement”.

The Constitution declares that the President “shall be Commander in Chief of the Army and Navy of the United States”. (Art. 2, sec. 2.) The Supreme Court in United States v. Sweeny stated that the object of this provision is “evidently to vest in the President the supreme command over all the military forces,—such supreme and undivided command as would be necessary to the prosecution of a successful war.” [Underscoring supplied.]20 (157 U. S. (1895) 281, 284

The power of the President as Commander in Chief and his duty to prosecute a war to a “successful” conclusion are no less extensive than [Page 9] those of the Congress “To declare war …;21 To raise and support Armies …; To provide and maintain a Navy”, etc. (Art. I, sec. 8.)

The Constitution itself contains no specific grant of power to any branch of the Government to make peace. The matter was discussed, however, at the Constitutional Convention, on August 17, 1787, in connection with the granting of power to Congress to make war. A motion was made to add the words “and peace” after the word “war”, so as to give Congress the power to declare both war and peace. The motion was unanimously rejected. (II Journal of the Constitutional Convention (Hunt’s ed., 1908) 188, 189.)*

While Congress has authority under the Constitution to declare war, once it is declared it is for the President to determine when peace may be concluded. He may conclude an armistice or negotiate a treaty of peace, or both. The armistice is wholly a function of the President but a treaty of peace requires senatorial approval.

Hare, in his work on the Constitution, says that “it is the right of the President, and not of Congress, to determine whether the terms [of peace] are advantageous, and if he refuses to make peace, the war must goon.” (I. Hare, American Constitutional Law (1889) 171–172.)

In the report of the Judiciary committee to the Forty-ninth Congress on the treaty power, it is stated that “Congress cannot create the status of peace by repealing its declaration of war, because the former requires the concurrence of two wills, the latter but the action of one.” (H. Rept. 4177, 49th Cong., 2d sess., p. 9; Henry St. George Tucker, Limitations on the Treaty-Making Power (1915) 342, 356–357.)

In August 1919 Senator Fall of New Mexico presented the following question to President Wilson: “In your judgment, have you not the power and authority, by proclamation, to declare in appropriate words that peace exists and thus restore the status of peace between the Governments and peoples of this country and those with whom we declared war?” The President replied: “I feel constrained to say … not only that in my judgment I have not the power by proclamation to declare that peace exists, but that I could in no circumstances consent to take such a course prior to the ratification of a formal treaty of peace.” (58 Cong. Rec. Pt. 4, pp. 4176, 4177.)

The question of the procedure for terminating war was raised by House Joint Resolution 327 of May 21, 1920 intended to repeal the Joint Resolution of April 6, 1917 declaring a state of war to exist between the United States and Germany, and the Joint Resolution of December 7, 1917 declaring a state of war to exist between the United States and the Austro-Hungarian Government, and to declare a state of peace. (59 Cong. Rec. Pt. 7, p. 7423.)

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The resolution was vetoed by President Wilson on May 27 on the ground that it did not “accomplish any of these objects” for which the United States had entered the war. He stated:

“… I have not felt at liberty to sign this joint resolution because I can not bring myself to become party to an action which would place an ineffaceable stain upon the gallantry and honor of the United States. The resolution seeks to establish peace with the German Empire without exacting from the German Government any action by way of setting right the infinite wrongs which it did to the peoples whom it attacked and whom we professed it our purpose to assist when we entered the war. Have we sacrificed the lives of more than 100,000 Americans and ruined the lives of thousands of others and brought upon thousands of American families an unhappiness that can never end for purposes which we do not now care to state or take further steps to attain?

. . . . . . . . . . . . . .

“… when we entered the war we set forth very definitely the purposes for which we entered, partly because we did not wish to be considered as merely taking part in a European contest. This joint resolution which I return does not seek to accomplish any of these objects, but in effect makes a complete surrender of the rights of the United States so far as the German Government is concerned.

. . . . . . . . . . . . . .

“But the treaty as signed at Versailles has been rejected by the Senate of the United States, though it has been ratified by Germany. By that rejection and by its method we have in effect declared that we wish to draw apart and pursue objects and interests of our own, unhampered by any connections of interest or of purpose with other Governments and peoples.” (59 Cong. Rec. Pt. 9 [8], pp. 7747, 7748.)

However, on July 2, 1921, President Harding signed a Joint Resolution declaring “at an end” the state of war “declared to exist between the Imperial German Government and the United States of America by the Joint Resolution of Congress approved April 6, 1917.” It also declared to be at an end the war between the United States and the Austro-Hungarian Government. (42 Stat. 105.) A joint resolution of Congress announcing the termination of war is undoubtedly valid so far as domestic law is concerned but so far as concerns the international situation, the attitude of the enemy must be taken into account. Peace between the United States and Germany, for example, was not formally restored until the exchange on November 11, 1921 of ratifications of the Treaty of Berlin. President Harding in proclaiming the treaty stated that the war terminated on July 2, 1921. His [Page 11] action in so doing is probably explainable by the fact that the treaty incorporated parts of the Joint Resolution of that date.

The Circuit Court of Appeals for the Third Circuit declared in a decision in 1930 that—

“The Joint Resolution of Congress of July 2, 1921, did not terminate the war. This resolution was not legally binding on Austria, and regardless of its political effect, it was not a legal restoration of peace as that can be accomplished only by a bilateral treaty of peace.…” (First Nat. Bank of Pittsburgh v. Anglo-Oesterreichische Bank, for Use of Anglo-Austrian Bank, Limited, for Use of Grouf, 37 F. (2d) 564, 567–568.)

In the case of Arnold et al. v. Ellison et al., Appellants, the Superior Court of Pennsylvania held that the war between the United States and Germany ended on November 14, 1921, the date when the President proclaimed the treaty of peace between the United States and Germany. The court said:

“Nor can we give our assent to appellants’ contention that the war was terminated by the joint resolution of Congress, passed July 2, 1921, (42 Stat, at L. 105, Sec. 1). A state of war cannot be terminated by a mere declaration of one of the belligerents that there is no longer any reason for its continuation. The actual termination of a war is a mutual matter evidenced by a treaty, duly ratified by both parties, and it cannot properly be said that a war has ended until the ratifications have been exchanged. True, the section of the Trading with the Enemy Act which we have quoted, after fixing ‘the date of proclamation of exchange of ratifications’ as the ‘end of the war’ added ‘unless the President shall by proclamation declare a prior date.’ This seems to contemplate, for the purposes of that act, the possibility of a proclamation declaring the war ended prior to the exchange of ratifications. No such proclamation was made. The only proclamation was that of November 14, 1921, reciting the exchange of ratifications and declaring the war to have terminated on July 2, 1921. We are not persuaded that this proclamation should be given the retroactive effect contended for; to do so would be equivalent to saying that a right of action, to which the statute would have been a bar within a few days after the end of the war, may, by a proclamation made three days later, be set back more than four months, with the effect that it could never be enforced.” (96 Pa. Superior Ct. 118, 124 (1929).)

In the case of Kotzias v. Tyser, the Court of King’s Bench held—“the authorities show that, in the absence of any specific statutory or contractual provision to the contrary, the general rule of international law is that as between civilized Powers who have been at war, peace is not concluded until a treaty of Peace is finally binding upon the belligerents, and that that stage is not reached until ratifications of the treaty of peace have been exchanged between them.” (1920) 2 K. B. 69, 77.

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Furthermore, whatever may be said of the effect of the Joint Resolution of July 2, 1921, it is to be borne in mind that it was the joint act of the Congress and the President. If in the present situation Congress should pass a resolution with the President’s commitment regarding hostilities still outstanding, he could veto it as President Wilson did in 1920 and it could not become operative even domestically unless passed over his veto.

The only way by which Congress could compel the President to “cease hostilities” would be by cutting off the appropriations. Even in such a situation he could do as President Theodore Roosevelt is said to have threatened to do when the Chairman of the Senate Committee on Naval Affairs reportedly announced that Congress would refuse to appropriate money to send the fleet around the world. In referring to the incident he stated:

“… However, I announced in response that I had enough money to take the fleet around to the Pacific anyhow, that the fleet would certainly go, and that if Congress did not choose to appropriate enough money to get the fleet back, why, it would stay in the Pacific. There was no further difficulty about the money.” (Roosevelt, An Autobiography (1913) 592, 598.)

The resolutions of Congress declaring the existence of a state of war between the United States and Japan, Germany and Italy pledge “all of the resources of the country” to bring the conflict to “a successful termination”. Both by the resolutions of Congress and by the Constitution the President is to be the judge as to how best to prosecute the war. Its successful termination may depend upon the ability of the President to make certain that Great Britain, Soviet Russia, and China shall continue in the struggle until the enemies are defeated. The best way to be sure that this situation shall obtain is through a pledge by them not to cease fighting except by common agreement of all four Powers. The President could not obtain such a pledge from the other Powers without making one himself. He is justified in doing so by reason of his responsibility as Commander in Chief and his broad powers in the conduct of foreign relations. As stated by the Supreme Court regarding this latter prerogative:

“In this vast external realm, with its important, complicated, delicate and manifest [manifold] problems, the President alone has the power to speak or listen as a representative of the nation.… Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.” (United States v. Curtiss–Wright Export Corp. et al., 299 U. S. 304, 319 (1936).

Green H. Hackworth
  1. Brackets appear in the original.
  2. Omissions throughout this document indicated in the original.
  3. Article IX of the Articles of Confederation had given Congress sole and exclusive power to determine on peace and war. [Footnote in the original.]