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It must be added that the distinction between constitutional power" and "ability to effect certain results" is one often difficult to draw in practice, though doubtless valid in theory. If, for instance, the President has the "ability to effect certain results" for which Congress is given express power, through the exercise of his own undoubted constitutional powers, it would not seem far from the truth to state that the constitutional powers of Congress and the President overlap. The same end may often be attained by different means.

A. The Power to Recognize Foreign States, Governments, and Belligerency.

192. The Power of Recognition.

The President as the representative organ has the power to recognize facts in international relations. He has recognized foreign states by receiving diplomatic officers or granting exequators to consuls from them, and by sending diplomatic officers or commissioners to them.13 He has, by diplomatic correspondence through the Department of State, recognized acquisitions of territory and the establishment of protectorates by existing states.1 Likewise, beginning with the recognition of the French revolutionary government through reception of Citizen Genet in 1793, the President has recognized new governments and he has refused to recognize de facto governments, thereby contributing to their ultimate downfall, as was the case with the Huerta government in Mexico and the Tinoco government in Costa Rica.15 The President has recognized the existence of foreign war through proclamation of neutrality. Though the first such proclamation, issued in 1793 by Washington, was vigorously attacked by Jefferson and Madison, who considered it beyond his powers and contrary to the French alliance treaty of 1778, the precedent has been followed in all subsequent foreign wars, both international and civil.16 The President has also held 13 Moore, Digest, 1: 74-119.

14 Williams v. Suffolk Ins. Co., 13 Pet. 415.

15 Moore, Digest, 1: 164; Moore, Principles of Am. Diplomacy, 213–225. 16 Moore, Digest, 1: 164; Corwin, op. cit., pp. 7–28. PROC. AMER. PHIL. SOC., VOL. LX., X, MARCH 13, 1922,

himself competent to recognize the termination of foreign wars and the consequent termination of American neutrality. He has recognized the existence of insurgency and domestic violence in foreign countries by proclamation and by diplomatic correspondence through the Department of State, and the courts have held that such action creates a status covered by special principles of international law. Thus in the case of the Three Friends the court distinguished between war in the material sense" and "war in the legal sense.'

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"Here," it said, “the political department has not recognized the existence of a de facto belligerent power engaged in hostility with Spain, but has recognized the existence of insurrectionary warfare prevailing before, at the time and since this forfeiture is alleged to have been incurred."

After describing two presidential proclamations calling attention to "serious civil disturbances" and "insurrection" in Cuba, the court continues:

"We are thus judicially informed of the existence of an actual conflict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowledgment of the insurgents as belligerents by the political department has not taken place."

With respect to the President's power of recognition, two questions have been raised: What are its limits? and, Is it exclusive? 193. Limits of Recognition Power.

The courts have taken cognizance of the President's recognition of states, governments, belligerency, insurgency and foreign acquisitions of territory on numerous occasions and they have never held that the President exceeded his powers. 19 It is clear, however, that if unlimited, the power of recognition could be used to usurp the power to declare war. Thus recognition of a foreign revolting state, if premature, would furnish a casus belli. This possibility was envisaged by Secretary of State Adams when occasion arose for recognizing the revolting South American Republics and he stated: 20

17 Mr. Seward, Sec. of State, to Mr. Goñi, Spanish Minister, July 22, 1868, Moore, Digest, 7: 337, supra, sec. 213.

18 Ibid., 1: 242; The Three Friends, 166 U. S. 63-66 (1897).

19 Ibid., 1: 247.

20 Mr. Adams, Sec. of State, to the President, Aug. 24, 1818, ibid., 1: 78. For discussion of circumstances justifying recognition, see Dana, Notes to Wheaton, Elements of International Law, pp. 35, 41.

'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 recognition 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.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.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 occasions3o 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: 82

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, I: 246.

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.