"There is a stage in such contests when the parties struggling for independence have, as I conceive, a right to demand its acknowledgment by neutral parties, and when the acknowledgment may be granted without departure from the obligations of neutrality. It is the stage when independence is established as a matter of fact so as to leave the chances of the opposite party to recover their dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived; and as the belligerent nation has the same right to judge for itself, it is very likely to judge differently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our Revolution, and substantially against Holland."

Secretary Adams' distinction seems to indicate the limits of the President's power. He may recognize a fact. To do so is not a just cause of war. A recognition before the fact is, however, intervention and practically war, the declaration of which belongs to Congress. Thus when the line has been close, as in the recognitions of the South American Republics and Texas, the President has "invoked the judgment and cooperation of Congress" before recognition21 and where "recognition" would clearly be premature, the President has not acted at all but has turned the question over to Congress. Thus President McKinley, in his message of April II, 1898, turned over the "solemn responsibilty" of the Cuban question to Congress with a recommendation for intervention,22 194. Exclusiveness of President's Recognition Power.

In practice, recognition has always been by authority of the President, though in a few cases the President has gained the approval of Congress or the Senate before acting.2

23

"In the preceding review," writes Moore, "of the recognition, respectively, of new states, new governments and belligerency, there has been made in each case a precise statement of facts, showing how and by whom the recognition was accorded. In every case, as it appears, of a new government and of belligerency the question of recognition was determined solely by the Executive. In the case of the Spanish-American republics, of Texas, of Hayt, and of Liberia, the President, before recognizing the new state, invoked the judgment and cooperation of Congress; and in each of these cases provision was made for the appointment of a minister, which, when made in due form, constitutes, as has been seen, according to the rules of international law, a formal recognition. In numerous other cases the recognition was given by the Executive solely on his own responsibility."

21 Infra, sec. 194.

22 Richardson, Messages, 10: 67.

23 Moore, Digest, I: 244.

The Congressional Resolution of April 20, 1898, which asserted that "the people of the Island of Cuba are and of right ought to be free and independent" has been cited as an exception but the resolution went on to "direct and empower" the President to use the army, navy and militia to "carry these resolutions into effect." It was in fact and was understood at the time to be a declaration of intervention and not a recognition.24 As Senator Morgan of Alabama said, it was "not a historical declaration of the existing facts or situation, but it is a high political decree, . . . a basis of political action." 25

195. Claim of Congress to Recognition Power.

On several occasions, the power of recognition has been claimed for Congress. Thus said Henry Clay in the House of Representatives: 26

"There are three modes under our Constitution in which a nation may be recognized: By the Executive receiving a minister; secondly, by its sending one thither; and, thirdly, this House unquestionably has the right to recognize in the exercise of the constitutional power of Congress to regulate foreign commerce. . . . Suppose, for example, we passed an act to regulate trade between the United States and Buenos Ayres; the existence of the nation would be thereby recognized, as we could not regulate trade with a nation which does not exist."

However, Clay's original motion which provided salary for a minister to the "independent provinces of the River Plata in South America" was withdrawn and his substitute omitting the term "independent" and adding that the salary was to commence "whenever the President shall deem it expedient to send a minister to the said United Provinces" failed to pass.21

27

On this occasion, as later, the better opinion held that the power to recognize was vested exclusively in the Executive. Thus John

24 Richardson, Messages, 10: 72. See also Latané, Am. Jl. Int. Law, 12: 899 (Oct., 1918), criticizing statement in Corwin, op. cit., p. 80.

25 Cong. Rec., 55th Cong., 2d sess., Appdx., p. 290; Corwin, op. cit., p. 81. 26 Sen. Doc. 56 (cited supra, note 8), p. 32; Corwin, p. 76. See also notes of Secretaries of State Buchanan and Clay, Moore, Digest, 1: 245–246. 27 Moore, Digest, 1: 82. A later resolution passed the House of Representatives, ibid., 1: 84.

Quincy Adams, then Secretary of State, writes of a meeting of President Monroe's cabinet, on January 1, 1819.28

"As to impeachment, I was willing to take my share of risk of it for this measure whenever the Executive should deem it proper. And, instead of admitting the Senate or House of Representatives to any share in the act of recognition, I would expressly avoid that form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution an act of the Executive authority. General Washington had exercised it in recognizing the French Republic by the reception of Genêt. Mr. Madison had exercised it by declining several years to receive, and by finally receiving Mr. Onis; and in this instance I thought the Executive ought carefully to preserve entire the authority given him by the Constitution, and not weaken it by setting the precedent of making either House or Congress a party to an act which it was his exclusive right and duty to perform. Mr. Crawford said . . . that there was a difference between the recognition of a change of government in a nation already acknowledged as sovereign, and the recognition of a new nation itself. He did not, however, deny, but admitted, that the recognition was strictly within the powers of the Executive alone, and I did not press the discussion further."

The same position has been taken by Mr. Seward and other Secretaries of State,29 by the Senate on several occasions30 and by the Supreme Court.81

The Executive," said the latter, "having recognized the existence of a state of war between Spain and her South American colonies, the courts of the union are bound to consider as lawful those acts which war authorized and which the new Governments in South America may direct against their enemy."

Although the President may seek the opinion of Congress before recognition; and doubtless should do so if the state or government or war in question does not have a clear de facto existence, yet the law is that stated by the Senate Foreign Relations Committee in 1897: 32

28 Memoirs of J. Q. Adams, 4: 205-206; Moore, Digest, I: 244.

29 Mr. Seward, Sec. of State, to Mr. Dayton, Minister to France, Apr. 7, 1864, Moore, Digest, 1: 246.

66

30 Memorandum on the method of Recognition" of foreign governments and foreign states by the Government of the United States, 1789-1897, Sen. Doc. No. 40, 54th Cong., 2d sess.; memorandum upon the power to recognize the independence of a new foreign state, Sen. Doc. No. 56, 54th Cong., 2d sess.

31 The Divina Pastora, 4 Wheat. 32; Moore, Digest, 1: 247.

32 Sen. Doc. 56, 54th Cong., 2d Sess., p. 22.

"The executive branch is the sole mouthpiece of the nation in communication with foreign sovereignties. Foreign nations communicate only through their respective executive departments. Resolutions of their legislative departments upon diplomatic matters have no status in international law. In the department of international law, therefore, properly speaking, a congressional recognition of belligerency or independence would be a nullity."

Finally we may notice a practical consideration adverted to by Professor Corwin after a comprehensive survey of the subject. Concluding that "recognition, as it is known to international law, belongs to the President alone, or to the President in conjunction with the Senate " he adds: 33

"Even if we should admit that Congress, incidentally to discharging some legislative function like that of regulating commerce, might in some sense recognize' a new state or government, the question still remains how it would communicate its recognition, having the power neither to dispatch nor to receive diplomatic agents. As was said of the States of the Confederation, Congress is as to other governments 'both deaf and dumb.' Why, then, claim for it a power which it could not possibly use save in some roundabout and inconclusive fashion?"

B. The Power to Determine National Territory and Citizenship. 196. Judicial Recognition of Territorial Limits.

International law recognizes that territory may be acquired by accretion and prescription; discovery and occupation; cession and conquest. The courts in applying international law recognize small acquisitions by accretion and prescription. Thus mud islands formed at the mouths of rivers and gradual changes in boundary river courses have been recognized as extending the jurisdiction.35 The courts have held general acceptance of certain marks as the boundary for a long space of time will establish it, even though such marks are ascertained to be incorrect by later surveys,36 and they have also recognized bays with headlands more than six miles apart, such 33 Corwin, op. cit., p. 82.

34 Wilson and Tucker, International Law, 7th ed., p. 108.

35 Cushing, Att. Gen., 8 Op. 175 (1856); Ocean City Assoc. v. Shriver, 46 Atl. 690 (N. J., 1900), and English case, The Anna, 5 Rob. 373 (1805); Moore, Digest, 1: 269-273, 747.

36 As to interstate boundaries, R. I. v. Mass., 4 How. 591, 639 (1846); Ind. v. Ky., 136 U. S. 479 (1890); Va. v. Tenn., 148 U. S. 503 (1893); Moore, D'gest, I: 295, 747.

as Chesapeake and Delaware bays, as territorial waters from long assertion by the United States and tacit acceptance by other powers of that status.37 In general, however, the courts regard the determination of boundaries as a political question.38

197. Recognition of Territorial Limits by the President.

The President is competent to recognize the acquisition of territory by discovery and occupation. Thus shall uninhabited islands. in the Pacific have been taken possession of by naval commanders." The President has also applied the Guano Island act passed by Congress in 1856 and as therein provided has registered islands, discovered and worked by American citizens, as within American jurisdiction and protection. In Jones v. United States the Supreme Court held that the jurisdiction of the United States was thus legally extended.40

198. Power to Annex Territory by Treaty and Executive Agree

ment.

Most of the acquisitions of territory have been by cession, though the competence of the treaty-making power was at first questioned." Louisiana, Florida, Oregon, California and New Mexico, the Messila Valley, Tutuila in the Samoan group, Porto Rico, the Philippines, Guam, and the Virgin Islands have been thus acquired, as has the permanent lease of the Panama Canal Zone, and of a naval base on the Gulf of Fonseca. Reef Island near the outlet of Lake Erie and a lease of a naval base at Guantanamo, Cuba, were acquired by executive agreement.42

37 The Grange, Randolph, Att. Gen., 1 Op. 32; Manchester v. Mass., 139 U. S. 240; Moore, Digest, 1: 735-743; The Alleganean, Alabama Claims Commission, 1885, 32 Albany L. J. 484; Moore, Int. Arb. 4333, 4675; Scott, Cases on Int. Law, p. 143.

555.

38 Foster v. Neilson, 2 Pet. 253; Moore, Digest, 1: 743-745, supra, sec. 107. 39 For acquisition of Midway and Wake Islands, see Moore, Digest, 1:

40 Jones v. U. S., 137 U. S. 202 (1890); Moore, Digest, 1: 556–580. 41 Willoughby, op. cit., pp. 328 et seq. See also Wright, Columbia Law Rev., 20: 141, note 100.

42 Moore, Digest, 1: 433-554.