privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court." 5

§ 580. Existence and Territorial Extent of Sovereignty.

The existence and territorial extent of the sovereignty of a State, involving, of course, the question as to the de jure character of a government, have been held to be political questions.

In Foster v. Neilson was involved the determination whether Spain or the United States had sovereignty over a given district. The decision as to this, the court held, was a purely political one to be made by the executive, and without judicial power of revision. In his opinion Marshall declares: "If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of nations is, as has been truly said, more a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature.'

5"It is true," the opinion continues, "the bill, in setting forth the political rights of the State, and of its people to be protected, among other matters, avers that Georgia owns certain real estate and buildings therein, State Capitol and executive mansion, and other real and personal property; and that putting the acts of Congress into execution, and destroying the State, would deprive it of the possession and enjoyment of its property. But it is apparent that this reference to property and statement concerning it, are only by way of showing one of the grievances resulting from the threatened destruction of the State, and in aggravation of it, not as a specific ground of relief. This matter of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief. Indeed the case, as made in the bill, would have stopped far short of the relief sought by the State, and its main purpose and design given up, by restraining its remedial effect, simply to the protection of the title and possession of its property. Such relief would have called for a very different bill from the one before us."

62 Pet. 253; 7 L. ed. 415.

In Ex parte Cooper the court expressed itself bound by the action of the political departments claiming jurisdiction to an extent exceeding fifty-nine miles from the shore of Alaska. It was intimated, however, that should a case involving private rights arise, but bearing upon a point public in its nature which had not been passed upon by the political departments, the court would be constrained itself to decide the point.

The political departments of the United States Government, that is to say, the executive and legislative departments, have the final and conclusive word not only as to the existence of American sovereignty over a given district, but as to which of two or more contending foreign States has de jure jurisdiction. This was declared in Williams v. Suffolk Insurance Co. In this case a vessel, insured generally against loss, was ordered by the government of Buenos Ayres not to catch seal off the Falkland Islands. The master of the schooner denied the jurisdiction of Buenos Ayres, and was captured and condemned by the authorities of Buenos Ayres. Upon suit being brought for the insurance, these facts were set up by the insurers. The Supreme Court, however, refused to consider the evidence as to sovereignty, but held itself concluded by the action of the political departments of the United States Government, saying: "Can there be any doubt that when the executive branch of the government, which is charged with the foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that, in the exercise of his constitutional functions, he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union. If this were not the rule cases might often arise in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference 7143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232.

813 Pet. 415; 10 L. ed. 226.

between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character."

Again, in Jones v. United States the court say: "Who is the sovereign de jure or de facto of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as all other officers, citizens and subjects, of the government. All courts are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings."

§ 581. War: Belligerency: Neutrality.

From the cases already cited, it follows that determinations by the political departments as to existence of a status of independence, or of war, or of belligerency, are not reviewable by the

courts.

In United States v. Palmer10 Marshall declares: "Those questions which respect the rights of a part of a foreign empire which asserts or is contending for its independence, and the conduct which must be observed by the courts of the Union towards the subjects of such section of an empire who may be brought before the tribunals of this country are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise, to whom are entrusted all its foreign relations, than to that tribunal whose power as well as duty is

9137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691.

10 3 Wh. 610; 4 L. ed. 471.

confined to the application of the rule which the legislature may prescribe for it. In such contests a nation may engage itself with the one party or the other- may observe absolute neutrality or may make a limited recognition of it. The proceedings in the court must depend so entirely on the course of the government that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts of hostility which war authorizes, and which the new government may direct against the enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to array the nation to which the court belongs against that party. This would transcend the limits prescribed to the judicial department." 11

Of course the courts of one country are not bound by the decisions of another country as to the territorial extent of jurisdiction of that country, or indeed as to any question of international law and right. In Rose v. Himely12 the court, speaking through the mouth of Marshall, says: "Of its own jurisdiction, so far as depends on municipal rules, the court of a foreign nation must judge, and its decisions must be respected. But if it exercise a jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded by foreign courts. This distinction is taken upon this principle, that the law of nations is the law of all tribunals in the society of nations, and is supposed

11 In The Divina Pastora (4 Wh. 52; 4 L. ed. 512) Marshall again says: "The decision at the last term, in the case of the United States v. Palmer, establishes the principle that the government of the United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes, and which the new governments in South America may direct against their enemy." See also The Santissima Trinidad, 7 Wh. 283; 5 L. ed. 454, and Kennett v. Chambers, 14 How. 38; 14 L. ed. 316. 12 4 Cr. 241; 2 L. ed. 608.

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.13

§ 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. 484; 46 L. ed. 534) 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.