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 citizens of the United States." 4 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: 51

"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."

48 Fleming v. Page, 9 How. 603.

49 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.

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

53

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: 54

“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 prinIciples 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 consulates in the place of residence and the evidence necessary to prove citizenship.56 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 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 Borchard, op. cit., p. 488.

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

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 communications from them, . . . making him, in the language of one of the most eminent writers on constitutional law, the constitutional organ of communication with foreign states.' If Congress can direct the correspondence of the Secretary of State with foreign governments, a case very different from that now under consideration might arise, when that officer might be directed to present to the same foreign government entirely different and antagonistic views or statements."

Similar objection has sometimes been raised in Congress itself. Thus Webster said of an item in the appropriation bill for the Panama mission of 1826, which attempted to attach conditions: 59

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.

59 Benton, Abridgment of Debates in Congress, 9: 91. Congressional resolutions on incidents in the control of foreign affairs have sometimes been defeated in Congress from an apprehension that they might be unconstitutional encroachments upon the President's powers. See Clay's resolution of 1818 for recognition of United Province of Rio de la Plata (Moore, Digest, 1: 182); Benton's resolution of 1844 criticizing President Tyler's treaty for annexation of Texas (Cong. Globe, 13, Appdx., 474); Sumner's resolution of

"He would recapitulate only his objections to this amendment. It was unprecedented, nothing of the kind having been attempted before. It was, in his opinion, unconstitutional, as it was taking the proper responsibility from the Executive and exercising, ourselves, a power which, from its nature, belongs to the Executive, and not to us. It was prescribing, by the House, the instructions for a Minister abroad. It was nugatory, as it attached conditions which might be complied with, or might not. And lastly, if gentlemen thought it important to express the sense of the House on these subjects, or any of them, the regular and customary way was by resolution. At present it seemed to him that we must make the appropriation without conditions, or refuse it. The President had laid the case before us. If our opinion of the character of the meeting, or its objects, led us to withhold the appropriation, we had the power to do so. If we had not so much confidence in the Executive as to render us willing to trust to the constitutional exercise of the Executive power, we have power to refuse the money. It is a direct question of aye or no. If the Ministers to be sent to Panama may not be trusted to act, like other Ministers, under the instructions of the Executive, they ought not to go at all."

203. President Not Bound by Congressional Resolutions on Foreign Affairs.

The Executive has never hesitated to ignore resolutions or acts of this kind, even when passed. Thus a resolution of 1864 declared, with reference to the Maximillian Government of Mexico, that:

"It does not accord with the policy of the United States to acknowledge a monarchical government, erected on the ruins of any republican government in America, under the auspices of any European power."

Secretary of State Seward explained to the minister in France:

"This is a practical and purely Executive question, and the decision of its constitutionality belongs not to the House of Representatives nor even to Congress, but to the President of the United States. . . . While the President receives the declaration of the House of Representatives with the profound respect to which it is entitled, as an exposition of its sentiments upon a grave and important subject, he directs that you inform the Government of France that he does not at the present contemplate any departure from the policy which this Government has hitherto pursued in regard to the war which exists between France and Mexico. It is hardly necessary to say that the proceeding of the House of Representatives was adopted upon suggestions arising within itself, and that the French Government would be seasonably apprised of any change of policy upon this subject which the President might at any future time think it proper to adopt."

1871 criticizing President Grant's effort to annex Santo Domingo (Cong. Globe, 42d Cong., 1st sess., pt. 1, p. 294); McLemore's resolution of March, 1916, "to warn all citizens of the United States to refrain from traveling on armed vessels" (Cong. Rec., 1916, pp. 3700-4).

Congress promptly resolved upon receipt of this communication

that:

"Congress has a constitutional right to an authoritative voice in declaring and prescribing the foreign policy of the United States, as well in the recognition of new powers as in other matters, and it is the constitutional duty of the President to respect that policy, not less in diplomatic negotiations than in the use of the national forces when authorized by law; and the propriety of any declaration of foreign policy by Congress is sufficiently proved by the vote which pronounces it; and such proposition, while pending and undetermined, is not a fit topic of diplomatic explanation with any foreign power." Mr. Blaine criticized this resolution in the House:

"To adopt this principle is to start out with a new theory in the administration of our foreign affairs, and I think the House has justified its sense of self-respect and its just appreciation of the spheres of the coordinate departments of government by promptly laying the resolution on the table." But after changing the term "President" to "Executive Department" the House passed the resolution, which, however, failed to come to a vote in the Senate.60

Though congressional resolutions on concrete incidents are encroachments upon the power of the Executive Department and are of no legal effect, yet they may be of value as an index of national sentiment.

"They have," says Professor Corwin, "often furnished the President valuable guidance in the shaping of his foreign policy in conformity with public opinion. Thus the resolutions which were passed by the Senate and House separately in the second session of the Fifty-third Congress, warning the President against the employment of forces to restore the monarchy of Hawaii, probably saved the administration from a fatal error. Again, the notorious McLemore resolution, requesting the President 'to warn all citizens of the United States to refrain from traveling on armed merchant vessels,' though ill-judged enough as to content, did nevertheless furnish the administration a valuable hint as to the state of the public mind, and one which it was quick to take. For the President, even in the exercise of his most unquestioned powers, cannot act in a vacuum. He must ultimately have the support of public sentiment.” 61

60 McPherson, History of the Rebellion, pp. 349-354; Sen. Doc. No. 56 (cited supra, note 30), p. 47. See also President Wilson's refusal to carry out provisions of the Jones Merchant Marine Act of June 5, 1920, directing the termination of certain treaty provisions, and President Lincoln's failure to terminate the Great Lakes disarmament agreement of 1817 in accord with a resolution of 1865, supra, secs. 174, 184.

61 Corwin, op. cit., p. 45.