The sun. [volume] (New York [N.Y.]) 1833-1916, 1893-11-22
sHs pRsstDrNr BEYOND ms poWERs.
rae Hawaiian Conpiiestion-Ths Copstitu.
tt0~~t law arthe Ease.


consideration of questions so important thnt
the matter is raised above the level OF mere
partisan discussion. The question which lies
at the bottom Of the present Hawaiian contro-
versy IL not whether the Horrison AdminIstra-
tion. by it's agents. or its agents without au-
thority. wrongly aided in the establishment OF
the Provisional Government In Hawaii Nor
il It the question whether the annexation OF
the islands to the United States IL desirable.
Neither lie It TO the purpose that the derosed
Queen Ia n disreputablc. corrupt. and con
temptible person. nor-eXcluding the posi-
billty OF future diplomatic compllcations-that
the Provisional Government appears to repre-
sent about all the civilization OF the Islands.
and that II has been recognized as lie facto
Government by the other great movers The
acts Of the Admin istration. as valid or invalid.
are to be tested by the application OF settled
principles OF law.
1t is an elementary rule OF international law
that the formal recognition. as such. Of the
representatives Of a power claiming TO exist
as a nation. Ia a recognition Of the national
existence OF such power with all tho attributes
OF sovereignty. This principle has been
always recognized in modern times. notably
during the war OF tho rebellion, as when Earl
RUSSELL in May. 1851. refused &c receive off,
cialy. the plenipot entiaries OF the so.called
Confederate States. and as when President
Buchanan, at first. and PRESIDENT Lincoln.
aiterward. refused to receive persons accred-
tied to them from the same quasi nation. SO.
at the beginning Of the civil war our Ministers
at the courts OF Paris and London were in
structed that they were to treat as an act Of
war any formal recognition. by those courts.
Of the representatives OF the Confederacy.
Under the Constitution article H., section 3.
the power to recognize and receive as such
the representatives OF foreign powers is vested
exclusively in the President OF the United
States and his act in rendering such recogni-
ton 10 the act OF the nation. In the words Of Won
Hoist. he is not the sole bearer OF the power
OF the State in relation to foreign countries.
but he alone represents It. and that, too. not
only when one nation confronts another. but
also where the rights and interests OF in
dividuals are involved. 80 far as they do not
come within the jurisdiction Of the courts.
This exclusive right OF the President to repre-
cent the State power must not, however, be
considered as only formal right lie Is also q
co-bearer OF the state power. and the exclusive
representative right involves his having the
exclusive right OF initiative with the exception
OF the powers granted to Congress in article l..
section y. clause lila" THE powers to de-
clare war. grant letters OF marque and repri-
sal. 6c."I Constitutional Law OF the United
States. up. 100. 200.
1t is equally clear that. the act OF recognition
being once accomplished. as by entering into
diplomatic relations with the representatives
Of the new power and by accrediting represen-
tatives to such power. such act Of recognition
Is conclusive and irrevocable. SO long as the
de facto existence Of the new Government con-
tinues. THE exercise OF this prerogative OF
| acknowledging new nations or Ministers is an
executive function OF great delicacy. which re-
auires the utmost caution and deiberation. II
the EyacutIye "a N hn IN mr. t no
| Minister. as the representative OF a new nation
or Of a party In civil war in an old nation. 1t
Is an kck NJ wledgment Of the sovereign Ru-
thorty de facto OF such new nation or party.
IL such recognition is made. 1t Is conclusive
Upon the nation. unless. indeed. II can be re-
versed by an act OF Congress repudiating it,"
STORY, Comment aries on the Constitution"
book iii. CHI. Nxxyii.. sec. 1.JUbL he rule
which makes the act OF recognition conclu-
sive rests upon sound and patent reasons:
First. upon international comfy. which re-
CURES that each power may Mt all times be
able to know Its own status and that OF the
other powers comprising the family of nations !:
secondly. upon tho rule Of domestic policy
which iorbids that foreign relations estab-
lished by com petent auth GRITTY shall he changed
| SO long as the circumstances which attended
| tho establishment OF them continue to sub
| sist: and thirdly. and OF the greatest practi-
cal importance, inc reason lmplleu III inc rue
| OF law laid down by Chief Justice Marshall
that when civil war RACES in foreign ma
tion. one part OF which separates itselffrom the
| old established Government. ana erects itself
| into a distinct Government, the courts OF the
| Union must view such newly established Gov
eminent as 1t Is viewed by the legislative and
| executive departments OF the Government"
| United States vs.. Palmer. Wheat $40. 6+al
1t is obvious what mischief would ensue If the
| definition OF fact which the executive Govern
ment thus furnishes and to which the Federal
| Courts are TO apply and do apply notably in
| prize cases. the rules OF law were subject to
| change tho facts upon which such definition
| was founded remaining unchanged.
The Administration OF President Cleveland.
| In the face OF the fact that the United States,
| acting by its lawful and only authorized
| representative. has, heretofore. recognized the
Provisional Government OF Hawaii, ard has
entered into full diplomatic relations with 1t.
now thr eat ems to annul such former recogni-
ton. So long as this ATTEMPT Is merely by
pronunciamen to, II would seem TO be ultra rireS
and without effect IL the Administration
persists in its attempt. and. by actual use OF
force or by intimidation speaking from the
guns OF war ships in the port OF Honolulu. or
by threats couched In diplomatic language.
nuts out OF existence n Government which this
nation has formally recognized. 1t would seem
clearly to be guilty of violation OF the Consti-
tuition Of the United States and Of the obligs-
tions imposed upon II by international law.
Whether by such unlawful acts. until they
shall be ratified. II that be possible, by Con-
gress. the Administration can put the nation
into an attitude OF war as against Hawaii Is an
interesting question. The situation is unique.
and without precedent in the annals OF diplo-
macy. It is true that while the President cannot
declare war he may ordinarily without any
possibility Of hindrance from the LegislaI ire.
so conduct the foreign intercourse, the diplo-
matte intercourse with other Governments as
TO force a war, as to compel another nation TO
take the initiative: and. that step once taken.
the challenge cannot lie refused iPomeroy.
constitutional Law" section G69.i But the
text writer's who have laid down this proposition
assume always that the President. in taking the
initiative which may force the country intowar.
will act within the law. not ufrd r'res. nor
against constitutional prohibition. 1t would
seem that il by such acts he transcsnds the
powers granted him by the Constitution he