Board of War

“ The government had already decided to appoint a small committee to advise on the reconstruction of the machinery of the war office. One of Arnold- Forster's first administrative acts was to appoint Viscount Esher, Sir John Fisher, and Sir George Sydenham Clarke as the sole members of this committee, whose report resulted in the constitution, on a new and established footing, of the committee of imperial defence, and in the reconstruction of the hierarchy of the war office more or less on the model of the board of admiralty. ”

“ I hereby establish a Censorship Board to be composed of representatives, respectively, of the Secretary of War, the Secretary of the Navy, the Postmaster General, the War Trade Board, and the chairman of the Committee on Public Information. ”

“ What is that great safeguard of our peace and security, as it is written in the Constitution, that Congress, and not the President alone, shall have the power to declare war — what is it worth if an Executive officer of the Government can initiate or make war without Congressional authority? ”

“ I must exercise my own judgment, and fallow my own sense of duty, I admit that there is a vast difference between a state of peace and a state of war; but I have yet to learn that we must bring to the Constitution of our country any rule of interpretation in war that would not be sound in time of peace. Congress is the law-making power at all times—in war no less than in peace. There are strong reasons why Congress should be more watchful of their prerogative in war than in peace. War, from the necessity of the case, increases Executive patronage, and greatly augments Executive power. ”

“ This spirit of independent judgment is by no means confined to the rank and file. The evidence before the War Committee shows how seldom a General-in-Chief can depend on the hearty co-operation of his Division leaders, and how unreservedly dissent was often expressed by those whose lips discipline ought to have sealed.
The fact is, that a spirit of party impregnates all the military organization of the North: a Federal army is a vast political machine. ”

“ Hence, the recent proposition of the secretary of war, strongly recommended by the president, under color of a new organization of the militia, to create a standing force of two hundred thousand men, an amount which no conceivable foreign exigency can ever make necessary. It is not my purpose now to enter upon an examination of that alarming and most dangerous plan of the executive department of the federal government. It has justly excited a burst of general indignation; and nowhere has the disapprobation of it been more emphatically expressed than in this ancient and venerable commonwealth. ”

“ I will examine a number of the acts of our government by these tests. The constitution declares that "congress shall have power to raise and support armies," an act passed by congress gives the president power "in the even of a declaration of war against the United States, or of actual invasion of their territories by a foreign power, or of imminent danger of such invasion, discovered in his opinion to exist before the next session of congress to cause to be enlisted and to call into actual service, a number of troops not exceeding 10,000; to be enlisted for a term not exceeding three years." ”

“ He can meet the adversary upon land and water with all the forces of the Government. The truth is, this idea of the existence of any necessity for clothing the President with the war power, under the Act of 1795, is simply a monstrous exaggeration, for, besides having the command of the whole of the army and navy, Congress can be assembled within any thirty days, if the safety of the country requires that the war power shall be brought into operation. ”

“ In the Senate, January 22, 1862.
Mr. Wade: But, sir, though the war lies dormant, still there is war, and it is not intended that it shall stay in this quiescent state much longer. The committee to which I belong are determined * * * that it shall move with energy. If the Congress will not give us, or give themselves, power to act with efficiency in war, we must confide everything to the Executive Government and let them usurp everything. ”

“ But to-day, in arranging to make war or to make peace, it is the Cabinet— the two or three in the inner Chamber—who take all responsibility upon themselves. As often as not their decision is largely influenced by party questions—and the questions do not depend on the morality of the war, whether the reason for it is a just one or no. ”

“ SPECTER: You may respond, Attorney General.
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war. ”

“ The very appeal made by the defendant to the 14th section of the 67th article of the army regulations, is a recognition of this right. The power to establish implies, necessarily, the power to modify or repeal, or to create anew. The secretary of war is the regular constitutional organ of the president, for the administration of the military establishment of the nation ”

“ Your committee forbear to enter into a particular examination of the merits of these amendments, but they cannot but remark, that if the fifth, which requires the concurrence of two-thirds of both houses of congress to declare war, were adopted, no nation would ever fear our power. Recent experience has given us but too much reason to apprehend, that a portion of the people in the eastern section of the union are lost to a due sense of national honor. ”

“ The Minister told the committee, that whatever might be the resolution of Congress, respecting a peace or a truce, it was necessary to carry on the war with the utmost vigor. He urged reasons too well known to Congress to be related. ”

“ Whenever the members of a senate, a council, or a congress, attempt to decide military questions, they are sure to err; for, being absent from the theatre of operations, they can neither see clearly the military situation, nor render decisions with promptness in critical times. Besides, their decisions are often halfway measures, neither one thing nor the other; like the laws passed by a bicameral legislature, they are nearly all compromises. In war there must be resolution, boldness, decision; to compromise is to court defeat. ”

“ He had not, however, any expectation that such an attempt could succeed; and, therefore, should submit to the serious consideration of the committee, that, although the constitution had carefully and jealously lodged the power of war, of armies, of the purse, &c. in Congress, of which the immediate Representatives of the people formed an integral part, yet, according to the construction maintained on the other side, the President and Senate, by means of a Treaty of Alliance with a nation at war, might make the United States parties in the war. ”

“ On the 8th, the council of war, ordered by Congress, was convened; at which were present Major-generals Gates, Greene, Stirling, Mifflin, Lafayette, De Kalb, Armstrong and Steuben, and Brigadier-generals Knox and Duportail. After the state of the forces, British and American, their number and distribution, had been laid before the council by the commander-in-chief, and a full discussion had been held, it was unanimously determined to remain on the defensive, and not attempt any offensive operation until some opportunity should occur to strike a successful blow. ”

“ The President may, with the concurrence of the National Assembly, declare war, but, in case of defence against foreign invasion, he may request recognition of the National Assembly after the declaration of the war. ”

“ If the Congress was composed of the representatives of the people, the army was composed in a large proportion of the constituents of the Congress. More than once also, during the course of the war, men who had done good work for their country as soldiers, withdrawing from their original field of action, did equally good service for her as statesmen. And more than once, too, men who had proved themselves wise and eloquent in counsel were found at the head of a regiment, or even in more subordinate positions in the army. ”

“ I dismiss this transaction as another instance of Presidential pretension, which, in the interest of Republican Government, should be arrested.
UNREPUBLICAN SUBORDINATION OF THE WAR DEPARTMENT TO THE GENERAL-IN-CHIEF.
From the Executive Mansion pass now to the War Department, and there we witness the same Presidential pretensions by which law, usage, and correct principle are lost in the will of One Man. The supremacy of the civil power over the military is typified in the Secretary of War, a civilian, from whom Army officers receive orders. ”

“ Even apart from such evidence, there is ample reason to infer that the council of war originated the consultative body, and gave outlines to its structure. Defense against enemies was everywhere the need which originally prompted joint deliberation. For other purposes individual action, or action in small parties, might suffice; but for insuring the general safety combined action of the whole horde or tribe was necessary; and to secure this combined action must have been the first motive for a political gathering. ”

“ These are properly the subjects of deliberation in which not only military, but civil opinions and interests must be represented; for their definition the Secretary of State will do well to refer to a general council of his assistants, and the ultimate settlement will require the judgment of the Cabinet, and sometimes also the sanction of Parliament. In time of war it is generally necessary quickly to levy extra men, and to drain into the army a large part of the resources of the country. ”

“ Perhaps in some future revision of this act, which is in many respects hastily penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military subjection, and to enact express articles of war for the government of the army, as is done for the government of the navy: especially as, by our present constitution, the nobility and gentry of the kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary rule, during their time of exercise. ”

“ The traditional practice of having a civilian Minister inside the Cabinet with all the authority, and a soldier with all the knowledge outside the Cabinet, was devised for electioneering purposes, and not for war. ”

“ Every Member agrees to arbitrate before going to war and to accept the authority of the Council in various ways. Should any Member resort to war it will be deemed to have committed an act of war against all other Members of the League. ”

“ And the officers and men so clothed, armed, and equipped, shall march to the place appointed, and within the time agreed on by the United States in Congress assembled.
The United States in Congress assembled shall never engage in a war ”

“ If congress, or the president of the United States shall apply to this state, to furnish troops to assist in carrying on the war, the request will doubtless meet with the attention which it will merit.
The committee will only take the liberty to remark, that, should the manner in which the war is waged or prosecuted, induce the enemy to retaliate, by an actual invasion of any portion of our territory, or should we be threatened with invasion or attack from any enemies, the militia will always be prompt and zealous to defend their country. ”

“ If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. ”

“ For when we remember that the primitive political assembly is essentially a war-council, formed of leaders who debate in presence of armed followers; and when we remember that in early stages all free adult males, being warriors, are called on to join in defensive or offensive actions—we see that, originally, the attendance of the armed freemen is in pursuance of the military service to which they are bound, and that such power as, when thus assembled, they exercise, is incidental. ”

“ But when the life of a statute is defined by the existence of a war, Congress leaves the determination of when a war is concluded to the usual political agencies of the Government.↑ Cf., e.g., the President's address to Congress on March 17, 1948, recommending the enactment of the European recovery program, universal military training, and the temporary reenactment of selective service legislation. ”

“ During the next week the House debated and passed the bill for raising the army to ten thousand men, but on all sides the friends and opponents of the measure equally deprecated war. The report of a special committee in the Senate, April 16, expressed on that point the general feeling of Congress: [177] —
“With respect to a resort to war as a remedy for the evils experienced, the committee will offer no other reflection than that it is in itself so great an evil that the United States have wisely considered peace and honest neutrality as the best foundation of their general policy. ”

“ In cases which related to captures from a public enemy with whom the United States should be at war, and in which a conflict should arise between the regulations of Congress and the acts of the General Assembly, the regulations of Congress should take precedence ”