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,30 and they have also recognized bays with headlands more than six miles apart, such as Chesapeake and Delaware bays, as territorial waters from long assertion by the United States and tacit acceptance by other powers of that status.3 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 ques

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, Digest, 1: 295, 747.

87 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.

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: 555.

40 Jones v. U. S., 137 U. S. 202 (1890); Moore, Digest, 1: 556-580.

41

tioned. 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

199. Power of Congress to Annex Territory.

Texas and Hawaii were acquired by joint resolution of Congress. Commentators have had difficulty in locating the clause on which the power of Congress to annex territory is founded. Chief Justice Marshall implied the power to annex territory from the powers to make treaties and to declare war, but the former does not apply to Congress nor the latter to these cases, and as Willoughby comments after citing the cases: 44

43

"It is to be observed that in none of these cases is there any argument to show just why, and in what manner, the acquiring of the foreign territory is a necessary or proper means by which war may be carried on, or treaties entered into. In fact, it will be seen that the acquiring of foreign territory has been treated as a result incidental to, rather than as a means for, the carrying on of war and the conducting of foreign relations."

It has been argued that the power to annex territory is implied in the powers to admit new states to the Union.45 That clause might apply to Texas which was immediately admitted as a state but hardly to Hawaii; and Gouverneur Morris who drafted the Constitution, replied to Livingston's query, "whether Congress can admit as a new state territory which did not belong to the United States when the Constitution was made": 40

41 Willoughby, op. cit., pp. 328 et seq. See also Wright, Columbia Law Rev., 20: 141, note 100.

42 Moore, Digest, 1: 433-554.

48 Am. Ins. Co. v. Canter, 1 Pet. 511.

44 Willoughby, op. cit., p. 340.

45 55th Cong., 2d sess., Sen. Report, No. 681; Willoughby, op. cit., p. 346. 46 Morris, Life and Writings (Sparks), 3: 185, 192; Willoughby, op. cit., P. 328.

"In my opinion they cannot. I always thought, when we should acquire Canada and Louisiana, it would be proper to govern them as provinces and allow them no voice in our councils. In wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief that had it been more pointedly expressed, a strong opposition would have been made."

If Congress has the power at all, as it doubtless has, it has it as a resultant of the various powers connected with foreign relations which together confer all sovereign powers necessary for national defense."

The Supreme Court has admitted the power of Congress to acquire territory by conquest but has denied such power to the President: 48

"The genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of. aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can only be done by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war."

We conclude that the courts in applying international law and the President in the exercise of his diplomatic powers may recognize minor acquisitions of territory by operation of international law, and that more considerable bodies of territory may be acquired by treaty or by joint resolution of Congress.

200. Power of Congress to Naturalize Aliens and Establish Criteria of Citizenship.

The Constitution provides that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are

47 Willoughby, op. cit., p. 340.

48 Fleming v. Page, 9 How. 603.

citizens of the United States." 49 Congress has exclusive power "to establish an uniform rule of naturalization," 50 and it has by implication the power to determine, within the constitutional provision, who are natural born citizens. Thus it has provided that: "1

"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."

Congress may also naturalize persons by special act, as it has many Indian tribes52 and the Porto Ricans.58

From its power to naturalize is deduced the power to determine criteria of expatriation. An act of 1868 "recognizes the natural and inherent right of expatriation" and enacts that: "4

"Any declaration, instruction, opinion, order, or decision of any officers of this Government which denies, restricts, impairs, or questions their right of expatriation is hereby declared inconsistent with the fundamental principles of this Government."

Laws have also stated presumptions of expatriation of naturalized citizens, such as two years residence in the country of origin or five years residence in other foreign country.55

201. Power of Executive to Recognize Citizenship.

Within the limits of these laws, the Executive, actually the Department of State, must recognize the citizenship or alienage of persons, in offering protection or responding to claims of foreign governments in behalf of their citizens. The Executive may make requirements with reference to passports and registration at con

40 U. S. Constitution, Amendment XIV; U. S. v. Wong Kim Ark, 169 U. S. 649.

50 Ibid, Art. I, sec. 8, cl. 4; Chirac v. Chirac, 2 Wheat. 259.

51 Rev. Stat., sec. 1993; Comp. Stat., 3947.

52 Rev. Stat., sec. 2312, Act Feb. 8, 1887, sec. 6, 24 Stat. 390, as amended

in 1901 and 1906; Comp. Stat., sec. 3951.

53 Act March 2, 1917, sec. 5, 39 Stat. 953; Comp. Stat., sec. 3803bb.

54 Rev. Stat., sec. 1999; Comp. Stat., sec. 3955.

55 Act March 2, 1907, sec. 2, 34 Stat. 1228.

56

sulates in the place of residence and the evidence necessary to prove citizenship. Within the United States the question of citizenship is ordinarily one for judicial determination, but immigrants claiming citizenship may, under present laws, have the fact of citizenship decided adversely and finally by administrative officials without appeal to the courts. According to the Ju Toy case these laws do not violate constitutional guarantees.57

C. Power to Determine Foreign Policy.

202. Congressional Resolutions on Incidents in Foreign Affairs. Declarations of foreign policy may be made by Congress in the form of joint resolutions, but such resolutions are not binding on the President. They merely indicate a sentiment which he is free to follow or ignore. Yet they are often couched in mandatory terms and in defense of his independence the President has frequently vetoed them. Thus in 1877, President Grant vetoed two resolutions extending appreciation to Pretoria and Argentine Republic for the "complimentary terms in which they had referred to the first centennial": 58

"Sympathizing as I do in the spirit of courtesy and friendly recognition which has prompted the passage of these resolutions, I cannot escape the conviction that their adoption has inadvertently involved the exercise of a power which infringes upon the constitutional rights of the Executive. . . . The Constitution of the United States, following the established usage of nations, has indicated the President as the agent to represent the national sovereignty in its intercourse with foreign powers, and to receive all official

56 Borchard, op. cit., p. 488.

57 U. S. v. Ju Toy, 198 U. S. 253; Willoughby, op. cit., p. 1290.

58 Richardson, Messages, 7: 431. See also Sen. Rep., quoted supra, sec. 191. President Harding is reported to have opposed Senator Borah's amendment to the naval appropriation bill of 1921, authorizing a conference on disarmament with Great Britain and Japan, on the ground that it "might embarrass executive action, or appear to carry a congressional recommendation on international policies within the jurisdiction of the executive." (Press Report, May 3, 1921, Cong. Rec., May 17, 27, 1921, 61: 1508, 1857.) These objections were, however, later withdrawn (Letter to Representative Mondell, June 25, 1921), and the bill with the amendment was approved July 12, 1921, two days after President Harding had announced his intention to call a conference on limitation of armament.