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trol of the relations of the United States with foreign powers is almost entirely vested in the Executive department of

of the passport is incorporated into On the question of prize or no it by the joint act of both Guvern- prize, the vessel was condemned on ments.

the facts. Mr. Justice Johnson “Upon the whole, it is the opin- wrote a dissenting opinion (page 81) ion of the Court, in which opinion to the effect that substantial como six judges agree, that the form of pliance with the XVIIth article, in the passport not having been an- the absence of any form having nexed to the XVIIth article of the been agreed upon and annexed, treaty, the immunity, whatever it should have been deemed a suffiwas, intended by that article, never cient compliance, and that the failtook effect; and therefore, in ex- ure to annex a form did not nullify amining and deciding on the case the article, as held by the mabefore us, we must be governed by jority of the court. the general law of prize."

6 CONTROL OF FOREIGN RELATIONS BY THE EXECUTIVE. The statute prescribing the duties of the Secretary of State is as follows:

“The Secretary of State shall perform such duties as shall from time to time be enjoined on or entrusted to him by the President, relative to correspondences, commissions, or instructions to or with public ministers or consuls from the United States, or to negotiations with public ministers from foreign states or provinces, or to memorials or other applications from foreign public ministers or other foreigners, or to such other matters respecting foreign affairs as the President of the United States shall assign to the Department; and he shall conduct the business of the Department in such manner as the President shall direct." (U. S. Rev. St. sec. 202.)

For the duties devolving upon the Secretary of State, see: History of the Department of State of the United States. By William H. Michael, Chief Clerk of the Department, Government Printing Office, 1901.

Questions have frequently arisen as to how far the legislative department has any control over foreign relations; and it is a matter for the judiciary on each occasion to decide whether the point involved is legislative or executive.

It is vutside the domain of this work to discuss this subject, as the treaty-making power under the Constitution requires the joint action of both the executive and the legislative departments, and therefore no question can ever arise so far as the making of treaties is concerned.

The questions which have arisen as to the division of powers between the executive and legislative branches of the Government in regard to treaties relate to the construction of treaties after they have been made, and not to the power to make them. In the INSULAR CASES APPENDIX, at the end of volume I, a number of cases are collated on this point, and they are also repeated as note 10 to this section, and other cases are also

the Government. The Legislative department, however, is joined with the executive in three particulars, to wit: making

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cited in the same note. The question has frequently arisen whether or not the recognition of a foreign power, or of the belligerency of any body of people rising against a recognized government, is an executive, or a legislative act.

In the American Law Review for May and June, 1898, pages 390, et seq., Hon. William M. Penfield, the present Solicitor of the State Department, and for whose opinion the author has a high respect, discusses the question in an article entitled, “ Recognition of a New State - Is it an Executive Function ?"

Judge Penfield takes the position that it is an executive, and not a legislative, act, and cites in support of his proposition a number of cases, including Rose vs. Himely, 4 Cranch, 241, p. 272; Williams vs. Suffolk Insurance Co., 3 Sumner, 270; 13 Peters, 415, which involve the recognition of the jurisdiction of the Republic of Buenos Ayres over the Falkland Islands; Gelston vs. Hoyt, 13 Johns. Ch. 561, Kent's Chan., affirmed, 3 Wheat. 246, STORY, J.; Jones vs. United States, 137 U. S. 202, the Navassa Islands case; Kennelt vs. Chambers, 14 How. 38, which involved the question of the recognition of the independence of Texas. He quotes the opinion of Chief Justice Taney in the case last cited as follows: “It is a sufficient answer to the argument to say that the question whether Texas had or had not at that time become an independent state, was a question for that department of our Government exclusively which is charged with our foreign relations."

In speaking of the tripartite division of the Government of the United States, he says:

“ The great generalization of Montesquieu that the tripartite division of the powers of sovereignty is the leading principle of free government, was accepted as a political axiom by the framers of the constitution; and it became the beacon light of its interpretation and construction. It was declared that the three great departments of government ought to be kept separate and distinct; that the constitution intended to maintain a marked distinction between the legislative, executive and judicial powers; that those powers must remain as apportioned; that any blending or confusion of those powers, as, for example, the association of the Senate with the President in the executive functions, such as making treaties, appointment to office, are exceptions to the fundamental rule; which exceptions were made, not to destroy, but to save the principle; and like all other exceptions to general rules, are to be taken strictly and not extended by construction. The leading principle for the construction of the constitution being tripartite division of powers, and the entire executive authority being vested in the President, subject to certain exceptions, which are exceptions not only out of the grant but also to the application of the truth of the maxim, all non-excepted power, including that of recognition, is in the Executive. And whatever construction tends to extend the exceptions to the operation of the maxim and to the absorption of the powers of government by

treaties in which two thirds of the Senate must concur with the President; the appointment of public ministers and am


one department, at the expense of another, contravenes the foundation idea on which the constitution was framed, and should be rejected."

Judge Penfield's article was inspired by the fact that Senator Bacon, of Georgia, had offered a resolution that the recognition of a government was a matter “exclusively for the determination of Congress in its capacity as a law-making power."

The resolution does not appear to have been adopted.

In February and April, 1896, a concurrent resolution was adopted by both Houses of Congress as follows:

Resolved by the Senate (the House of Representatives concurring), That, in the opinion of Congress, a condition of public war exists between the Government of Spain and the Government proclaimed and for some time maintained by force of arms by the people of Cuba; and that the United States of America should maintain a strict neutrality between the contending powers, according to each all the rights of belligerents in the ports and territory of the United States.

“Resolved further, that the friendly offices of the United States should be offered by the President to the Spanish Government for the recogni. tion of the independence of Cuba.

“Passed the Senate, February 28, 1896.
“ Passed the House of Representatives, April 6, 1896."

In the case of The Three Friends,'' 166 U. S. 1, decided by the United States Supreme Court in 1898, Mr. Chief Justice Fuller beld that the recognition of belligerency was a matter for the political department, but did not consider that there had been any recognition of bellig. erency in Cuba, thus ignoring altogether the concurrent resolution of Congress which has just been quoted.

In other respects there are but few cases as to the control of foreign relations, it having been generally conceded, thereby rendering it unnecessary to be the subject of judicial decision, that the executive department of the United States is the one department which is charged with that branch of the conduct of our Government. In this respect see cases cited in note 9, § 460, p. 360, post.

See especially as to recognition of belligerency; The Itata, U. S. C. C. App. Ninth Circ., 1893, 56 Fed. Rep. 505, HAWLEY, J.; and The Ambrose Liyht, U. S. Dist. Ct. S. D. N. Y. 1883, 25 Fed. Rep. 408, Brown, J. The opinion in each of these cases contains a lengthy review of legal decisions involving the powers of the executive in regard to recognition of belligerency and the control of foreign relations.

In the case last cited Brown, J., says (p. 412): “Recognition of belligerency, or the accordance of belligerent rights to communities in revolt, belongs solely to the political and executive departments of each government. Courts cannot inquire into the internal condition of foreign communities in order to determine whether a state of civil war, as distinguished from sedition or actual revolt, exists there or not. They must follow the political and executive departments, and recognized

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bassadors to foreign countries who are appointed by the President and confirmed by the Senate; and declaration of war which must be made by both Houses of Congress and affirmed by the Executive or passed over his veto. With the exception of these three functions the control of foreign relations is generally conceded to be an executive act. The courts can determine the effect of a treaty on individual rights when it operates without legislation, but they cannot supply defects, change words even if any apparent error has been made, or determine any question of fact involved, such as location of boundaries, as all those matters are within the only what those departments recognize; and, in the absence of any recognition by them, must regard the former legal conditions as unchanged."

6 Foster vs. Neilson, U. S. Sup. I by United States custom officials as Ct. 1829, 2 Peters, 253, MARSHALL, to importation of articles through Ch. J., and see reference to this the mail in connection with the case in § 364, pp. 66, et seq., ante. Postal Treaty of Berne.

The La Ninfa, U. S. D. C. Alaska, 7 The Ainiuble Isabella, U. S. Sup.
1891, 49 Fed. Rep. 575, BUGBEE, J., Ct. 1827, 6 Wheaton, 1, STORY, J.,
U. S. C. C. App. 9th Cir. 1896, 75 and see extract from opinion in
Fed. Rep. 513, HAWLEY, J. A note 4 of this section, p. 356, ante,
vessel was arrested for the viola- 8 Meiys vs. McClung, U. S. Sup.
tion of a statute under which a Ct. 1813, 9 Cranch, 11, MARSHALL,
large number of British vessels Ch. J. In this action it was at-
had been seized; which seizures tempted to show that there was a
had been referred to arbitration mistake in an Indian treaty by
as to whether they were proper. which the word “above" was used
Held, that as by the terms of the instead of “below," a certain point
Treaty of Arbitration with Great on the river. Held, that the mis-
Britain the rights of British subjects take could not be rectified by the
were involved; the citizens of the court.
United States had the same right to 9 Pollard's Lessee vs. Files, U. S.
rely upon the award as to their Sup. Ct. 1844, 2 Howard, 591, CA-
rights under the statute as did the TRON, J.; Pollard's Lessee vs. Ha-
subjects of Great Britain; and that gan, U. S. Sup. Ct. 1845, 3 Howard,
the award of the arbitrators under 212, McKINLEY, J.; Pollard's Les-
the treaty became the supreme law see vs. Kibbe, U. S. Sup. Ct. 1810,
of the land and was as binding 14 Peters, 353, THOMPSON, J. In
upon the courts as an act of Con- all of these cases it was held that
gress. The effect of the award on where the Executive bad placed a
the Treaty of Arbitration is referred construction upon treaties of ces-
to at pages 517-519.

sion as to the territory they in-
Cotzhausen vs. Nazro, U. S. Sup. cluded, the courts would sustain
Ct. 1882, 107 U. S. 215, MILLER, J. him.
Construction of treaty and statutes

respective domains of the Legislative and Executive departments. The cases cited in the notes 10 show that the Supreme


10 See also the cases cited in In- Holmes vs. Jennison, U. S. Sup. sular Cases on this point as follows Ct. 840, 14 Peters, 540, THOMP(repeated from INSULAR CASES SON, J. APPENDIX at end of Vol. I.): Jones vs. United States, U. S.

Amiable Isabella, The, U. S. Sup. Sup. Ct. 1890, 137 U. S. 202, GRAY, J. Ct. 1821, 6 Wheaton, 1, STORY, J. Kansas Indians, The, U. S. Ct.

Castro vs. De Uriarte, U. S. Dist. 1866, 5 Wallace, 737, DAVIS, J. Ct. S. D. N. Y. 1883, 16 Fed. Rep. Kennett vs. Chambers, U. S. Sup. 93, BROWN, J.

Ct. 1852, 14 Howard, 38, TANEY, Chae Chan Ping vs. United Ch. J. Stutes (Chinese Exclusion Case), Luther vs. Borden, U. S. Sup. Ct. U. S. Sup. Ct. 1889, 130 U. S. 581, 1819, 7 Howard, 1, TANEY, Ch. J. FIELD, J.

McPherson vs. Blacker, U. S. Chew Fleong vs. United States, Sup. Ct. 1892, 146 U. S. 1, FULLER, U. S. Sup. Ct. 1884, 112 U. S. 5:36, Ch. J. HARLAN, J.

Marbury vs. Madison, U. S. Sup. Chouteau vs. Eckhart, U. S. Sup. Ct. 1803, 1 Cranch, 137, MARSHALL, Ct. 1814, 2 Howard, 34+, CAT- Ch. J. J.

Miller vs. United States, U. S. Clinton Bridge, The, U. S. Cir. Sup. Ct. 1870, 11 Wallace, 268, Ct. Iowa, 1867, 1 Woolworth, 150, STRONG, J. MILLER, J.

Mormon Church vs. United States, Coffee vs. Groover, U. S. Sup. Ct. U. S. Sup. Ct. 1890, 136 U. S. 1, 1887, 123 U. S. 1, BRADLEY, J. BRADLEY, J.

In re Cooper (Behring Sea Crises), Morrill vs. Jones, U. S. Sup. Ct. U.S. Sup. Ct. 1891, 133 U. S. 404; and 1882, 106 U. S. 466, WAITE, Ch. J. 1892, 143 U. S. 472, FULLER, Ch. J. Munn vs. Illinois, U. S. Sup. Ct.

Dodge vs. Woolsey, U. S. Sup. 1876, 94 U. S. 113, WAITE, Ch. J. Ct. 1855, 18 Howard, 3:31, WAYNE, J. Neeley vs. Henkel, U. S. Sup. Ct.

Field vs. Clark, U. S. Sup. Ct. 1901, 180 U. S. 109, HARLAN, J. 1892, 142 U. S. 619, HARLAN, J. Phillips vs. Payne, U. S. Sup. Ct.

Foster vs. Neilson, U. S. Sup. Ct. 1875, 92 U. S. 130, SWAYNE, J. 1829, 2 Peters, 253, MARSHALL, Pollard's Heirs vs. Kibbe, U. S. Ch. J.

Sup. Ct. 1840, 14 Peters, 353, Frelinghuysen vs. Key, U. S. Sup. THOMPSON, J. Ct. 1884, 110 U. S. 63, WAITE, Pollock vs. Farmers' L. & T. Co. C11. J.

(Income Tax Cases), U. S. Sup. Ct. Garcia vs. Lee, U. S. Sup. Ct. 1893, 157 U. S. 429, FULLER, Ch. J. 1838, 12 Peters, 511, TANEY, Ch. J. Rhode Island vs. Massachusetts,

Georgia vs. Stanton, U. S. Sup. U. S. Sup. Ct. 1838, 12 Peters, 657, Ct. 1867, 6 Wallace, 50, Nelson, J. BALDWIN, J.

Great Western Ins. Co. vs. United Rose vs. Himeley, U. S. Sup. Ct. States, U. S. Sup. Ct. 1884, 112 U. 1808, 4 Cranch, 241, MARSHALI, S. 193, MILLER, J.

Ch. J. Head Money Cases, U. S. Sup. Tuylor vs. Morton, U. S. Cir. Ct. Ct. 1884, 112 U. S. 580, MILLER, J. Mass. 1855, 2 Curtis, 454, CURTIS,

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