eclaration, the colonies were a unit
in foreign affairs, acting through a common agency--namely the
Continental Congress, composed of delegates from the thirteen colonies.
That agency exercised the powers of war and peace, raised an army,
created a navy, and finally adopted the Declaration of Independence.
* * * It results that the investment of the Federal Government with the
powers of external sovereignty did not depend upon the affirmative
grants of the Constitution. The power to declare and wage war, to
conclude peace, to make treaties, to maintain diplomatic relations with
other sovereignties, if they had never been mentioned in the
Constitution, would have vested in the Federal Government as necessary
concomitants of nationality."[1214]

A COMPLEXUS OF GRANTED POWERS

In the more recent case of Lichter _v._ United States,[1215] on the
other hand, the Court speaks of the "war powers" of Congress. Upholding
the Renegotiation Act, it declared that: "In view of this power 'To
raise and support Armies, * * *' and the power granted in the same
Article of the Constitution 'to make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers, * * *' the
only question remaining is whether the Renegotiation Act was a law
'necessary and proper for carrying into Execution' the war powers of
Congress and especially its power to support armies."[1216] In a
footnote it listed the Preamble, the necessary and proper clause, the
provisions authorizing Congress to lay taxes and provide for the common
defense, to declare war, and to provide and maintain a navy, together
with the clause designating the President as Commander in Chief of the
Army and Navy, as being "among the many other provisions implementing
the Congress and the President with powers to meet the varied demands of
war, * * *"[1217]

A DECLARATION OF WAR, WHEN REQUIRED

In the first draft of the Constitution presented to the Convention of
1787 by its Committee of Detail Congress was empowered "to make
war."[1218] On the floor of the Convention according to Madison's
Journal "Mr. Madison and Mr. Gerry, moved to insert '_declare_' striking
out '_make_' war; leaving to the Executive the power to repel sudden
attacks"[1219] and their motion was adopted. When the Bey of Tripoli
declared war upon the United States in 1801 a sharp debate was
precipitated as to whether a formal declaration of war by Congress was
requisite to create the