1959

Congress may, however, delegate to state courts the performance of certain routine functions which do not involve the trial of cases. Any state chancellor, judge, justice of the peace, etc., may cause to be arrested and commited or held to trial any person charged with an offense against the United States.

59 In Robertson v. Baldwin (165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715), the court say: 'The better opinion is that the second section of Article

66

III of the Constitution was intended as a constitutional definition of the judicial power which the Constitution intended to confine to courts created by Congress; in other words, that such power extends only to the trial and determination of cases' in courts of record, and that Congress is still at liberty to authorize the judicial officers of the several States to exercise such power as is ordinarily given to officers of courts not of record; such, for instance, as the power to take affidavits, to arrest and commit for trial offenders against the laws of the United States, to naturalize aliens, and to perform such other duties as may be regarded as incidental to the judicial power rather than a part of the judicial power itself. . . . In the case of Prigg v. Pennsylvania (16 Pet. 539; 10 L. ed. 1060), it was said that, as to the authority conferred on state magistrates to arrest fugitive slaves and deliver them to their owners, under the act of February 12, 1793, while a difference of opinion existed, and might still exist upon this point in different States, whether state magistrates were bound to act under it, no doubt was entertained by this court that state magistrates might, if they chose, exercise the authority unless prohibited by state legislation. See also Moore v. Illinois, 14 How. 13; 14 L. ed. 306; In re Kaine, 14 How. 103; 14 L. ed. 345. We think the power of justices of the peace to arrest deserting seamen and deliver them on board their vessels is not within the definition of the judicial power' as defined by the Constitution, and may be lawfully conferred on state officers."

CHAPTER LI.

POLITICAL QUESTIONS.

§ 577. Political Questions.

Elsewhere in this treatise the well-known and well-established principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but within these limits they do permit the departments, separately or together, to recognize that a certain set of facts, that a given status, exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts.

In the exercise of his political powers, not only the President, but those acting under his order are exempt from judicial control. In Marbury v. Madison,' Marshall says: "By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to 11 Cr. 137; 2 L. ed. 60.

appoint certain officers, who act by his authority, and in conformity with his orders. In such cases their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist no power to control that discretion. The subjects are political. They respect the Nation, not individual rights, and, being intrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the department of foreign affairs. This officer as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is to be communicated. The acts of such an officer, as an officer, can never be examined by the courts."

No comprehensive enumeration of these political determinations has been attempted by the courts, nor, indeed, is such an enumeration possible. Specifically, however, the following have been decided, as the cases have arisen, to be political and, therefore, not justiciable:

§ 578. Cherokee Indians v. Georgia.

In the Cherokee Nation v. Georgia2 an injunction was prayed to restrain the State of Georgia from executing certain laws within that State, which, it was alleged, would annihilate the Cherokees as a political body. The suit was dismissed on the ground of lack of jurisdiction, it being held that the Cherokee Nation was not a foreign State in the sense in which the term is used in the provision of the Constitution which extends the federal judicial power to "controversies between a State or the citi zens thereof, and foreign States, citizens or subjects." Marshall, however, in his opinion went on to say: "A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a State from the forcible exercise of legislative power over a neighboring people asserting their independence, their right to which the State denies. On several of the matters

alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self-government in their own country by the Cherokee Nation, this court cannot interpose, at least in the form in which those matters are presented. That part of the bill which respects the land occupied by the Indians and prays the aid of the court to protect their possession may be more doubtful. The mere question of right might be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may well be questioned. It savors too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question." As this last sentence shows, all of Marshall's opinion what has been quoted was purely obiter, but was later relied upon by the court in Georgia v. Stanton.3

§ 579. Georgia v. Stanton.

The difficulty sometimes experienced in deciding between a justiciable and a non-justiciable question is well illustrated in this latter case.

Here a bill was filed invoking the original jurisdiction of the Supreme Court to restrain the Secretary of War, the General of the Army, and Major-General Pope from putting into effect the acts of Congress of 1867, providing for military government in the State of Georgia. The bill alleged that the intent of the acts of Congress as apparent on their face and by their very terms was to overthrow the existing constitutional government of the

25 Pet. 1; 8 L. ed. 25.

36 Wall. 50; 18 L. ed. 721.

4 In Mississippi v. Johnson (4 Wall. 475; 18 L. ed. 437) the attempt had been made to restrain the President of the United States from executing the reconstruction acts, but the bill had been dismissed on the ground that an injunction or mandamus would not lie to the chief executive of the nation.

State and to substitute an unconstitutional one therefor. In declining to issue the orders prayed for, the court say:

"In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Con gress, inasmuch as such execution would annul and totally abolish the existing State Government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State, by depriving it of the means and instrumentalities whereby its existence might, and otherwise would, be maintained.

"This is the substance of the complaint, and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing government, as contemplated in these acts of Congress; which, it is charged, if carried into effect by the defendants, will work this destruction. But, they are grievances, because they necessarily and inevitably tend to the overthrow of the State as an organized political body. They are stated, in detail, as laying a foundation for the interposition of the court to prevent the specific execution of them; and the resulting threatened mischief. So in respect to the prayers of the bill. The first is, that the defendants may be enjoined against doing or permitting any act or thing, within or concerning the State, which is or may be directed, or required of them, by or under the two acts of Congress complained of; and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed.

"That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions, and upon rights, not of person or property but of a political character, will hardly be denied. For the rights, for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and