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to be equally understood by all. Thus the sentence of a court sitting in a neutral territory, and instituted by a belligerent, has been declared not to change the property it confessed to condemn; and thus the question whether a prize court sitting in the country of the captor could condemn property lying in a neutral port, has been fully examined, and although the jurisdiction of the court in such case was admitted, yet no doubt appears to have been entertained of the propriety of examining the question, and deciding it according to the practice of the nations."

§ 582. Treaties.

Whether or not a treaty or other international agreement which the United States may have entered into with a foreign country has been sufficiently ratified by that country is for the political departments of our government to determine, as is also the continuing existence of a treaty."

§ 583. Diplomatic Agents.


Whether or not a given person is to be recognized as the accredited agent, consular or diplomatic, of a foreign government, is, also, a question for final determination by the political department.14

13 In Doe v. Braden (16 How. 635; 14 L. ed. 1090) the court say: "It is said, however, that the King of Spain by the constitution under which he was then acting and administering the governments, had not the power to annul it by treaty or otherwise; that if the power existed anywhere in the Spanish government it resided in the Cortes; and that it does not appear, in the ratification, that it was annulled by that body or by its authority or consent. But these are political questions and not judicial. They belong exclusively to the political department of the government."

In Terlinden v. Ames (184 U. S. 270; 22 Sup. Ct. Rep. 481; 46 L. ed. 531) the question was as to whether a treaty entered into between the United States and Prussia in 1852 was still in existence, although by the entrance of the latter country into the German Empire, it had ceased to be an independent State. The court held that the political departments of the United States had continued to treat the treaty as subsisting and that they were bound thereby, saying: "Without considering whether extinguished treaties can be renewed by tacit consent under our Constitution, we think that on the question whether this treaty has ever been terminated, governmental action in respect to it must be regarded as of controlling importance."

14 Ex parte Baiz, 135 U. S. 403; 10 Sup. Ct. Rep. 854; 34 L. ed. 222.

§ 584. Other Political Questions.

The extent of the immunity from judicial control of matters of international concern is well illustrated in the case of United States ex rel. Boynton v. Blaine,15 decided in 1890, in which the general doctrine was reviewed and affirmed that mandamus will not issue to control the executive department with reference to claims prosecuted by it against foreign governments in behalf of private persons. In this case a mandamus was sought to compel the Secretary of State to pay over to the petitioner certain sums of money paid to the United States by Mexico under an award made in his favor under a convention that had been entered into between the United States and Mexico. The Secretary of State, acting under the direction of the President, was withholding the payment to the petitioner pending an investigation of fraud. The court held that the matter was still pending before the department, that the principle of res adjudicata could not be invoked against the United States by the individual claimants, and that the judicial department could not intervene.

In Luther v. Borden16 it was held that the judiciary was not competent to reverse the decision of the political departments of the National Government as to which of two contesting organizations is the de jure government of a State of the Union. A fortiori it was held that it was not competent for state courts to question the de jure character of the government from which they derived their standing as courts.

In Martin v. Mott" it was held that the courts could not question the correctness of the decision of the President, acting under the authority of a law enacted February 28, 1795, as to the necessity for calling out the militia to repel an invasion or suppress an insurrection.

In Neely v. Henkel's the court held that it was not competent for the judiciary to make any declaration as to the length of time

15 139 U. S. 306; 11 Sup. Ct. Rep. 607; 35 L. ed. 183.

16 7 How. 1; 12 L. ed. 851.

17 12 Wh. 19; 6 L. ed. 537.

18 180 U. S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448.

Cuba should be occupied and controlled by the military forces of the United States, "it being," said the court, "the function of the political branch of the government to determine when such occupation and control shall cease, and, therefore, when the troops of the United States shall be withdrawn from Cuba."

In United States v. Holliday1 the existence of tribal relations among Indians was declared to be a matter for political determination.

§ 585. Suits Between the States.

Though questions of the extent of political jurisdiction are, as has been seen, essentially political in character, they are as between the individual States of the Union justiciable in the Supreme Court. This, however, is due to the express provision of the Constitution giving to that court original jurisdiction over "controversies between two or more States." This precise question is more particularly discussed in a later chapter dealing with suits between States.20

§ 586. Courts Will Exercise Jurisdiction when Private Rights are Involved.

In all these cases the courts have held themselves bound by the positions assumed by the executive and legislative departments. When, however, private justiciable rights are involved in a suit, the court has indicated that it will not refuse to assume jurisdiction even though questions of extreme political importance are also necessarily involved.

Thus, as has been set forth in another chapter, treaties entered into by the United States not only bind the United States internationally, but create municipal law for individuals so far as their personal rights and property are concerned. Thus a treaty having been entered into the courts will follow its terms even when, by doing so, it has to go counter to the position previously assumed

19 3 Wall. 407; 18 L. ed. 182.

20 Chap. LIII.

by the executive department, or, indeed, contended for by the government in the case at bar.

In Ex parte Cooper21 the court, after asserting the principle that it would not pass upon a matter purely political in character, are careful to say:

"We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."

In the year following that in which this case was decided, the United States entered into a convention with Great Britain providing for an arbitration of the political question (the extent of territorial sovereignty of the United States in the Behring Sea) involved in the Cooper case. An award was made under this convention, and Congress passed an act giving to it full effect. Later a case again coming before a federal circuit court of appeals, that tribunal held itself conclusively bound by the terms of the convention in opposition to the position of the political department at the time of the Cooper case. The opinion declares:

"This question has been settled by the award of the arbitrators, and this settlement must be accepted as final.' It follows therefrom that the words in the waters thereof,' as used in section 1956, and the words 'dominion of the United States in the waters of Behring Sea,' in the amendment thereto, must be construed to mean the waters within three miles from the shore of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the govern21 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232.


ment. They are beyond the sphere of judicial cognizance,' and ' if a wrong has been done, the power of redress is with Congress, not with the judiciary.' The Cherokee Tobacco, 11 Wall. 616; 20 L. ed. 227. But in the present case there is no pending case left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. . . . The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time In re Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same as a full, complete and final settlement of all questions referred to by the arbitrators,' and from the further fact that the government since the rendition of the award has passed an act to give effect to the award rendered by the tribunal of arbitration.'” 22

Commenting on this case, Judge Baldwin observes: "It will be noted that this result was reached in a suit by the United States in one of their own courts, in which the claim of the gov ernment was one of territorial boundary, and yet that court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly." 23

§ 587. Courts Will Not Perform Administrative Functions.

From the foregoing it appears that the courts themselves decline to assume jurisdiction with reference to matters of a political character. So also, they have held that it is beyond the constitutional power of Congress to impose upon them the performance of duties essentially administrative in nature. The instances in 22 The La Ninfa, 75 Fed. Rep. 513.

23 The American Judiciary, p. 41.

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