power is a function wholly within the domain of the Executive and Legislative departments, and cannot be exercised

sugar, molasses, coffee, tea and spect to the duration of the sushides, Congress itself determined pension so ordered. But that rethat the provisions of the Act of lated only to the enforcement of October 1, 1890, permitting the free the policy established by Congress. introduction of such articles, should As the suspension was absolutely be suspended as to any country required when the President ascerproducing and exporting them, that tained the existence of a particular imposed exactions and duties on fact, it cannot be said that in asthe agricultural and other products certaining that fact and in issuing of the United States, which the his proclamation, in obedience to President deemed, that is, which the legislative will, he exercised he found to be, reciprocally un- the function of making laws. Legequal and unreasonable. Congress islative power was exercised when itself prescribed, in advance, the Congress declared that the suspenduties to be levied, collected and sion should take effect upon a paid, on sugar, molasses, coffee, tea named contingency. What the or hides, produced by or exported President was required to do was from such designated country, simply in execution of the act of while the suspension lasted. Noth-Congress. It was not the making ing involving the expediency or of law. He was the mere agent of the just operation of such legisla- the law-making department to astion was left to the determination certain and declare the event upon of the President. The words he which its expressed will was to take may deem,' in the third section, of effect. It was a part of the law course, implied that the President itself as it left the hands of Conwould examine the commercial gress that the provisions, full and regulations of other countries pro- complete in themselves, permitting ducing and exporting sugar, mo- the free introduction of sugars, molasses, coffee, tea and hides, and lassess, coffee, tea and hides, from from a judgment as to whether particular countries, should be susthey were reciprocally equal and pended, in a given contingency, reasonable, on the contrary, in their and that in case of such suspeneffect upon American products. sions certain duties should be imBut when he ascertained the fact posed. . . that duties and exactions, reci procally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea and hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discre- "What has been said is equally tion in the premises except in re-applicable to the objection that the

"There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation.' [Quoting from Locke's Appeal, Peuna. Sup. Ct. 1872, 72 Penn. St. 491, 498, AGNEW, J.]

by the Judicial department, which has itself declared that it possesses no legislative or treaty-making power. The conthird section of the act invests | belongs by the constitution to the President with treaty-making another department of the Governpower. ment; and to alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on our part an usurpation of power, and not an exercise of judicial functions. It would be to make, and not to construe a treaty. Neither can this court supply a casus omissus in a treaty, any more than in a law, We are to find out the intention of the parties by just rules of inter

"The court is of opinion that the third section of the act of October 1, 1890, is not liable to the objection that it transfers legislative and treaty-making power to the President. Even if it were, it would not, by any means, follow that other parts of the act, those which directly imposed duties upon articles imported, would be inoperative. But we need not in this connection enter upon the consid-pretation applied to the subjecteration of that question."

matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stopswhatever may be the imperfections or difficulties which it leaves be

The parties who formed this treaty, and they alone, have a right to annex the form of the passport. It is a high act of sovereignty, as high as the formation of any other stipulation of the treaty. It is a matter of negotiation between the Governments. The treaty does not leave it to the discretion of either party to annex the form of passport; it requires it to be the joint act of both, and that act is to be expressed by both parties in the only manner known between independent nations--by a solemn compact through agents specially delegated, and by a formal ratification."

The Amiable Isabella, U. S. Sup. Ct. 1821, 6 Wheaton, 1, STORY, J. The XVIIth article of the treaty of 1795 with Spain provided that in case either party should be en-hind. gaged in war the vessels and subjects of the other party must be furnished with sea letters or passports containing certain informa tion; and that the form of passports was to be made out and granted according to the form annexed to this treaty. No such form was annexed to the treaty. A captured vessel had a document which the claimants insisted fulfilled the requirements, as it expressed everything that was stated in the article and which was required to be shown by the passport; the court, however, held that as no form had ever been annexed to the treaty, the whole section became inoperative and that it was beyond the power of the court to determine whether any passport was sufficient. On page 71 Justice STORY

says:

"This Court does not possess any treaty-making power. That power

Reference was made to the treaty of Prussia of 1785 and to the Dutch treaty of 1782 in regard to the details and annexation of sea-letters, and the court finally held that (page 76) "It cannot consider the 17th article of this treaty as com plete or operative, until the form

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

ments.

of the passport is incorporated into On the question of prize or no it by the joint act of both Govern- | prize, the vessel was condemned on the facts. Mr. Justice Johnson wrote a dissenting opinion (page 81) to the effect that substantial compliance with the XVIIth article, in the absence of any form having been agreed upon and annexed, should have been deemed a sufficient compliance, and that the failure to annex a form did not nullify the article, as held by the majority of the court.

"Upon the whole, it is the opinion of the Court, in which opinion six judges agree, that the form of the passport not having been annexed to the XVIIth article of the treaty, the immunity, whatever it was, intended by that article, never took effect; and therefore, in examining and deciding on the case before us, we must be governed by the general law of prize."

5

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 outside 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

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 recognition 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 held that the recognition of belligerency was a matter for the political department, but did not consider that there had been any recognition of belligerency 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 Light, U. S. Dist. Ct. S. D. N. Y. 1885, 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