The Barbary Wars; Legal precedent for invading Haiti?, by Louis Fisher, Cong. Res. Serv., LC, 6p

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The Barbary Wars; Legal precedent for invading Haiti?, by Louis Fisher, Cong. Res. Serv., LC, 6p
Wash., Lib. of Cong., (1994)


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SLU-Law-KF5060 .A25 1994b

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94-661 S
August 16, 1994

The Barbary Wars:
Legal Precedent for Invading Haiti?

Louis Fisher
Senior Specialist in Separation of Powers
Office of Senior Specialists


The claim that President Clinton has constitutional authority to invade
Haiti without first obtaining congressional authority is often linked to early
presidential actions. Supporters of broad executive power argue that a
President may deploy troops on his own authority and that Congress can
restrain him only after he acts. As support for this position, the Barbary Wars
during the time of Presidents Jefferson and Madison are often cited. However,
the historical record demonstrates that these military operations received
advance authority from Congress. To the extent that presidential initiatives
were taken before congressional action, they were defensive in nature and not
offensive (as contemplated for Haiti).


During the presidencies of George Washington and John Adams, U.S.
military action conformed to the framers' expectation that the decision to go to
war or to mount military operations was reserved to Congress and required
advance authorization. For example, President Washington's military actions
against Indian tribes were initially authorized by Congress. 1 Stat. 96, 5
(1789); 1 Stat. 121, 16 (1790); 1 Stat. 222 (1791). Consistent with these
statutes, military operations were confined to defensive measures. Offensive
action required authority from Congress. 33 The Writings of George
Washington 73 (John C. Fitzpatrick ed. 1939).

Similarly, when President Washington used military force in the Whiskey
Rebellion of 1794, he acted on the basis of statutory authority. 1 Stat. 264,
1 (1792). President John Adams engaged in the "quasi-war" with France from
1798 to 1800. Although Congress did not declare war, military activities were
fully authorized by more than two dozen statutes in 1798. 1 Stat. 547-611.


Elected President in 1800, Thomas Jefferson inherited the pattern
established during the Washington and Adams administrations: Congress had
to authorize offensive military actions in advance. One of the first issues

CRS Reports are prepared for Members and committees of Congress i 11111111 t


awaiting Jefferson was the practice of paying annual bribes ("tributes") to four
states of North Africa: Morocco, Algiers, Tunis, and Tripoli. Regular payments
were made so that these countries would not interfere with American
merchantmen. Over a period of ten years, Washington and Adams paid nearly:.
$10,000,000 in tributes.

In his capacity as Secretary of State in 1790, Jefferson had identified for
Congress a number of options in dealing with the Barbary powers. In each case
it was up to Congress to establish national policy and the executive branch to
implement it:

Upon the whole, it rests with Congress to decide
between war, tribute, and ransom, as the means of re-
establishing our Mediterranean commerce. If war, they will
consider how far our own resources shall be called forth, and
how far they will enable the Executive. to engage, in the
forms of the constitution, the co-operation of other Powers.
If tribute or ransom, it will rest with them to limit and
provide the amount; and with the Executive, observing the
same constitutional forms, to make arrangements for
employing it to the best advantage. 1 American State
Papers: Foreign Relations 105 (Walter Lowrie & Matthew St.
Clair Clarke, eds. 1832).

On March 3, 1801, one day before Jefferson took office as President,
Congress passed legislation to provide for a "naval peace establishment." 2 Stat.
110, 2 (1801). On May 15, Jefferson's Cabinet debated the President's
authority to use force against the Barbary powers. The Cabinet agreed that
American vessels could repel an attack, but some departmental heads insisted
on a larger definition of executive power. For example, Albert Gallatin,
Secretary of the Treasury, remarked: "The Executive can not put us in a state
of war, but if we be put into that state either by the decree of Congress or of the
other nation, the command and direction of the public force then belongs to the
Executive." Other departmental heads expressed different views. Franklin B.
Sawvel, ed., The Complete Anas of Thomas Jefferson 213 (1903).

After hearing these opinions from his Cabinet, Jefferson chose to rely on
statutory authority rather than theories of inherent presidential power. Citing
the statute of March 3, the State Department issued a directive on May 20 to
Captain Richard Dale of the U.S. Navy, stating that under "this [statutory]
authority" Jefferson had directed that a squadron be sent to the Mediterranean.
If the Barbary powers declared war on the United States, American vessels were
ordered to "protect our commerce & chastise their insolence -- by sinking,
burning or destroying their ships & Vessels wherever you shall find them." 1
Naval Documents Relating to the United States Wars With the Barbary Powers
467 (1939). Having issued that order, based on congressional authority,
Jefferson also wrote that it was up to Congress to decide what policy to pursue
in the Mediterranean: "The real alternative before us is whether to abandon the
Mediterranean or to keep up a cruise in it, perhaps in rotation with other


#owers who would join us as soon as there is peace. But this Congress must
decide." 8 The Writings of Thomas Jefferson 63-64 (Ford ed. 1897).

Insisting on a larger tribute, the Pasha of Tripoli declared war on the
United States. Jefferson did not interpret this action as authority for the
President to engage in unlimited military activities. He informed Congress on
December 8, 1801, about the demands of the Pasha. Unless the United States
paid tribute, the Pasha threatened to seize American ships and citizens.
Jefferson had sent a small squadron of frigates to the Mediterranean to protect
against the attack. He then asked Congress for further guidance, stating that
he was unauthorizedzd by the Constitution, without the sanction of Congress,
to go beyond the line of defense . ." It was up to Congress to authorize
"measures of offense also." Jefferson gave Congress all the documents and
communications it needed so that the legislative branch, "in the exercise of this
important function confided by the Constitution to the Legislature exclusively,"
could consider the situation and act in the manner it considered most
appropriate. 1 A Compilation of the Messages and Papers of the Presidents 315
(James D. Richardson ed. 1897-1925) (hereafter "Richardson").

Alexander Hamilton, writing under the pseudonym "Lucius Crassus," issued
a strong critique of Jefferson's message to Congress. Hamilton believed that
Jefferson had defined executive power with insufficient scope, deferring too
much to Congress. But even Hamilton, pushing the edge of executive power,
never argued that the President had full power to make war on other nations.
Hamilton merely argued that when a foreign nation declares war on the United
States, the President may respond to that fact without waiting for congressional

The first thing in [the President's message], which
excites our surprise, is the very extraordinary position, that
though Tripoli had declared war in form against the United
States, and had enforced it by actual hostility, yet that there
was not power, for want of the sanction of Congress, to
capture and detain her cruisers with their crews.

[The Constitution] has only provided affirmatively,
that, "The Congress shall have power to declare War;" the
plain meaning of which is, that it is the peculiar and
exclusive province of Congress, when the nation is at peace to
change that state into a state of war; whether from
calculations of policy, or from provocations, or injuries
received: in other words, it belongs to Congress only, to go to
War. But when a foreign nation declares, or openly and
avowedly makes war upon the United States, they are then
by the very fact already at war, and any declaration of the
part of Congress is nugatory; it is at least unnecessary." 7
The Works of Alexander Hamilton 745-747 (John C.
Hamilton ed.).

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Congress responded to Jefferson's message by authorizing him to equip
armed vessels to protect commerce and seamen in the Atlantic, the
Mediterranean, and adjoining seas. The statute authorized American ships to
seize vessels belonging to the Bey of Tripoli, with the captured property
distributed to those who brought the vessels into port. 2 Stat. 129 (1802).
Legislators had no doubt about their constitutional authority and duties. "The
simple question now," said Cong. William Eustis, "is whether [the President]
shall be empowered to take offensive steps." Cong. Samuel Smith added: "By the
prescriptions of the law, the President deemed himself bound." Annals of Cong.,
7th Cong., Ist Sess. 328-329 (1801).

Congress continued to pass legislation authorizing military action against
the Barbary powers. Legislation in 1803 provided additional'armament for the
protection of seamen and U.S. commerce. 2 Stat. 106. Legislation the next year
gave explicit support for "warlike operations against the regency of Tripoli, or
any other of the Barbary powers." 2 Stat. 291. Duties on foreign goods were
placed in a "Mediterranean Fund" to finance these operations. Id. at 292, 2.
Further legislation on the Barbary powers appeared in 1806, 1807, 1808, 1809,
1811, 1812, and 1813. 2 Stat. 391 (1806); 2 Stat. 436 (1807); 2 Stat. 456 (1808);
2 Stat. 511 (1809); 2 Stat. 616 (1811); 2 Stat. 675 (1812); 2 Stat. 809 (1813).

Jefferson often distinguished between defensive and offensive military
operations, permitting presidential initiatives for the former but not for the
latter. In 1805, he notified Congress about a conflict with the Spanish along the
eastern boundary of the Louisiana Territory (West Florida). After detailing the
problem he noted: "Considering that Congress alone is constitutionally invested
with the power of changing our condition from peace to war, I have thought it
my duty to await their authority for using force in any degree which could be
avoided." 1 Richardson 377.

Military conflicts in the Mediterranean continued after Jefferson left office.
The Dey of Algiers made war against U.S. citizens trading in that region and
kept some in captivity. With the conclusion of the War of 1812 with England,
President Madison recommended to Congress in 1815 that it declare war on
Algiers: "I recommend to Congress the expediency of an act declaring the
existence of a state of war between the United States and the Dey and Regency
of Algiers, and of such provisions as may be requisite for a vigorous prosecution
of it to a successful issue." 2 Richardson 539. Instead of a declaration of war,
Congress passed legislation "for the protection of the commerce of the United
States against the Algerine cruisers." The first line of the statute read:
"Whereas the Dey of Algiers, on the coast of Barbary, has commenced a
predatory warfare against the United States ." Congress gave Madison
authority to use armed vessels for the purpose of protecting the commerce of
U.S. seamen on the Atlantic, the Mediterranean, and adjoining seas. U.S.
vessels (both governmental and private) could "subdue, seize, and make prize of
all vessels, goods and effects of or belonging to the Dey of Algiers." 3 Stat. 230


An American flotilla set sail for Algiers, where it captured two of the Dey's
ships and forced him to stop the piracy, release all captives, and renounce the
practice of annual tribute payments. Similar treaties were obtained from Tunis
and Tripoli. By the end of 1815, Madison could report to Congress on the
successful termination of the war with Algiers.


Can Congress only authorize and declare war, or may it also establish limits
on prospective presidential actions? The statutes authorizing President
Washington to "protect the inhabitants" of the frontiers "from hostile incursions
of the Indians" were interpreted by the Washington administration as authority
for defensive, not offensive, actions. 1 Stat. 96, 5 (1789);-.1 Stat. 121, 16
(1790); 1 Stat. 222 (1791). Secretary of War Henry Knox wrote to Governor
Blount on October 9, 1792: "The Congress which possess the powers of declaring
War will assemble on the 5th of next Month -- Until their judgments shall be
made known it seems essential to confine all your operations to defensive
measures." 4 The Territorial Papers of the United States 196 (Clarence Edwin
Carter ed. 1936). President Washington consistently held to this policy. Writing
in 1793, he said that any offensive operations against the Creek Nation must
await congressional action: "The Constitution vests the power of declaring war
with Congress; therefore no offensive expedition of importance can be
undertaken until after they have deliberated upon the subject, and authorized
such a measure." 33 The Writings of George Washington 73.

The statute in 1792, upon which President Washington relied for his
actions in the Whiskey Rebellion, conditioned the use of military force by the
President upon an unusual judicial check. The legislation said that whenever
the United States "shall be invaded, or be in imminent danger of invasion from
any foreign nation or Indian tribe," the President may call forth the state
militias to repel such invasions and to suppress insurrections." 1 Stat. 264, 1
(1792). However, whenever federal laws were opposed and their execution
obstructed in any state, "by combinations too powerful to be suppressed by the
ordinary course of judicial proceedings, or by the powers vested in the marshals
by this act," the President would have to be first notified of that fact by an
Associate Justice of the Supreme Court or by a federal district judge. Only after
that notice could the President call forth the militia of the state to suppress the
insurrection. Id., 2.

In the legislation authorizing the Quasi-War of 1798, Congress placed limits
on what President Adams could and could not do. One statute authorized him
to seize vessels sailing to French ports. He acted beyond the terms of this
statute by issuing an order directing American ships to capture vessels sailing
to or from French ports. A naval captain followed his order by seizing a Danish
ship sailing from a French port. He was sued for damages and the case came to
the Supreme Court. Chief Justice John Marshall ruled for a unanimous Court
that President Adams had exceeded his statutory authority. Little v. Barreme,
6 U.S. (2 Cr.) 169 (1804).



The Neutrality Act of 1794 led to numerous cases before the federal courts.
In one of the significant cases defining the power of Congress to restrict
presidential war actions, a circuit court in 1806 reviewed the indictment of an
individual who claimed that his military enterprise against Spain "was begun,
prepared, and set on foot with the knowledge and approbation of the executive
department of our government." United States v. Smith, 27 Fed. Cas. 1192,
1229 (C.C.N.Y. 1806) (No. 16,342). The court repudiated his claim that a
President could authorize military adventures that violated congressional policy.
Executive officials were not at liberty to waive statutory provisions: "if a private
individual, even with the knowledge and approbation of this high and
preeminent officer of our government [the President], should set on foot such
a military expedition, how can he expect to be exonerated from the obligation
of the law?" The court said that the President "cannot control the statute, nor
dispense with its execution, and still less can he authorize a person to do what
the law forbids. If he could, it would render the execution of the laws dependent
on his will and pleasure; which is a doctrine that has not been set up, and will
not meet with any supporters in our government. In this particular, the law is
paramount." The President could not direct a citizen to conduct a war "against
a nation with whom the United States are at peace." Id. at 1230. The court
asked: "Does [the President] possess the power of making war? That power is
exclusively vested in congress. . it is the exclusive province of congress to
change a state of peace into a state of war." Id.