The question which of two opposing governments, each claiming to be the rightful government of a state, is the legitimate government, is an illustration of the kind of questions which the courts will refuse to decide on the ground of their belonging to the political departments." So, also, it belongs exclusively to the executive and legislative departments to recognize, or refuse to recognize, a new government in a foreign country, claiming to have displaced the old and to have established itself." And who is the sovereign, de jure or de facto, of a given district or territory, is not a judicial but a political question. Again, whether or not a state of war, insurrection, or public hostility, within the limits of the country, or between this country and a foreign power, existed at a given date, and the nature and extent of the war, if any existed, is a question on which the judicial tribunals must follow the political departments and accept their determination as conclusive. Treaties, in so far as they involve the rights of private litigants, may be the subject of judicial cognizance, but not with respect to their execution or their effect on public rights. Thus, no court has power to question, or in any manner look into, the powers or rights recognized by a treaty in the nation or tribe with which it was made.48 Nor are the courts authorized to inquire or decide whether the person who ratified a treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered; if the executive department accepts the treaty as valid, that is enough for the courts.** And on the same principle, it is not for the courts to decide "whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; or whether the views and acts of a foreign sovereign, manifested through his representative here, 89 Luther v. Borden, 7 How. 1; Thomas v. Taylor, 42 Miss. 651. 40 Kennett v. Chambers, 14 How. 38. 41 Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80. 42 Gray v. U. S., 21 Ct. Cl. 340; U. S. v. One Hundred and Twenty-Nine Packages, 2 Am. Law Reg. 419, Fed. Cas. No. 15,941; Gelston v. Hoyt, 3 Wheat. 246, 324. 48 Maiden v. Ingersoll, 6 Mich. 373. 44 Doe v. Braden, 16 How. 635. have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise." So, again, the validity of the retrocession to Virginia of that part of her territory which was originally ceded to the United States to form part of the District of Columbia, is settled by the political departments of gov ernment and cannot be inquired into by the courts.* 46 But, on the other hand, the ascertainment of the boundary between two states, or between a state and a territory, is not so far political in its nature that the courts may not determine it." 48 Nor is the question of the eligibility of a person elected to executive office in the state government. Neither is the question whether or not an apportionment act (dividing the state into districts for the election of members of the legislature) conforms to the requirements of the constitution."" ADVISORY OPINIONS BY THE COURTS. 56. The courts cannot be required to render their opinions upon questions of law, except in cases actually before them. But in a few of the states, the constitutions empower the executive or legislative departments to demand the opinion of the supreme court on important questions relating to pending measures. For instance, the constitution of Massachusetts declares that "each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court upon important questions of law and upon solemn occasions." 50 And in five or six other states similar consti 45 Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799. 4 Phillips v. Payne, 92 U. S. 130. 47 U. S. v. Texas, 143 U. S. 621, 12 Sup. Ct. 488; Rhode Island v. Massachu setts, 12 Pet. 657. 48 State v. Gleason, 12 Fla. 190. 49 State v. Cunningham, 81 Wis. 440, 51 N. W. 724. And see same case, 83 Wis. 90, 53 N. W. 35; People v. Thompson, 155 Ill. 451, 40 N. E. 307. 50 Const. Mass. c. 3, art. 2. 52 51 tutional provisions are found. But unless the constitution so provides, it is not within the lawful power of the other departments of the government to thus propound questions to the courts and require answers to them. A statute authorizing either house of the legislature to do this is unconstitutional, for the reason that it imposes on the courts duties which are not judicial in their nature.5 The President of the United States does not possess any authority to require the opinion of the supreme court on questions propounded to them. "In giving such opinions (where authorized by the constitution) the justices do not act as a court, but as the constitutional advisers of the other departments of the government, and it has never been considered essential that the questions proposed should be such as might come before them in their judicial capacity." " But it is held that questions relating to the desirability or policy of proposed legislation cannot be thus propounded to the court." "It is well understood, and has often been declared by this court, that an opinion formed and expressed under such circumstances cannot be considered in any sense as binding or conclusive on the rights of parties, but is regarded as being open to reconsideration and revision; yet it necessarily presupposes that the subject to which it relates has been judicially examined and considered, and an opinion formed thereon." 55 A finding of law and fact made by the Court of Claims, at the request of the head of a department, with the consent of the claimant, and transmitted to such department, but which is not obligatory on the department, is not a judg ment. The function of the court in such a case is ancillary and advisory only, and hence its decision is not appealable."" 51 In re Application of Senate, 10 Minn. 78 (Gil. 56). 82 2 Story, Const. § 1571. 53 Opinion of the Justices, 126 Mass. 557. 54 In re Senate Bill 65, 12 Colo. 466, 21 Pac. 478. 55 Green v. Com., 12 Allen (Mass.) 155. 56 In re Sanborn, 148 U. S. 222, 13 Sup. Ct. 577. 54 CHAPTER VI. THE FEDERAL EXECUTIVE. 57. The President. 58. The Vice-President. 59-60. Election of President and Vice-President. 61. Qualifications of President. 62. Vacancy in Office of President. 63. Compensation of President. 64. Oath of Office of President. 65. Independence of the Executive. 66-67. Veto Power of President. 68. Military Powers of President. 69-72. The Cabinet. 73. Pardoning Power. 74-75. The Treaty-Making Power. 78. Presidential Messages. 79. Convening and Adjourning Congress. 80. Diplomatic Relations. 81. Execution of the Laws. 82-84. Impeachment. THE PRESIDENT. 57. The executive power of the United States is vested in a President of the United States, who holds his office during a term of four years. THE VICE-PRESIDENT. 58. The Vice-President of the United States is elected at the same time with the President and holds his office for the same term. He acts as president of the senate, and succeeds to the presidency in case of the removal of the President from office, or of his death, resignation, or disability. ELECTION OF PRESIDENT AND VICE-PRESIDENT. 59. The President and Vice-President are chosen by an electoral college, the members of which are appointed or elected in the several states, each state being entitled to a representation therein equal to the whole number of its senators and representatives in congress. 60. If no candidate for the presidency receives a majority of the votes cast by the electoral college, the President is to be elected by the house of representatives. In a similar contingency, the Vice-President is chosen by the senate. The method of electing the President and Vice-President is prescribed by the twelfth amendment to the constitution, together with such parts of the first section of the second article as have not been superseded by that amendment. The presidential electors, chosen as therein directed, constitute what is commonly called the "electoral college." It will be observed that congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. In pursuance of this power, the day for casting the votes was at first fixed on the first Wednesday of December in every fourth year. But by the statute now in force (Act Jan. 23, 1845), the electors are to be chosen on the Tuesday next after the first Monday of November. But the manner of choosing the electors is left entirely to the individual states. The state legislatures have exclusive power to direct the manner in which the presidential electors shall be appointed. Such appointment may be made by the legislature directly, or by popular vote in districts, or by a general ticket, as the legislature may direct. At the present day, the last mentioned method is almost universally in vogue. The constitution does not prescribe the qualifications of a presidential elector, except in a negative way. No person is eligible to this office who is a "senator or representative, or who holds an office of trust or profit under the United States." And by the third section of the fourteenth amend 1 McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. 3. |