« AnteriorContinuar »
possible that the courts of either should refuse to abide by the measures adopted by its own government. The judiciary is not that department of the government to which the assertion of its interest against foreign powers is confided. Its duty is to decide upon individual rights according to those principles which the political departments of the nation have established. A question respecting the boundaries of nations is more a political than a legal question; and in its discussion the courts of other countries must respect the will of the political departments. Another decision would subvert those principles which govern the relations between the departments and mark the limits of each. The separation of powers, it is to be noted, is said to be at the bottom of this doctrine and the consequence is therefore established—the independence of the department.
An amplification of this doctrine is seen in such cases as Williams v. Suffolk Insurance Company, 13 Pet. 415 (1839). The schooner Harriet, insured for a sealing voyage, was ordered by the government at Buenos Ayres not to catch seal off the Falkland Islands. The master refused to abandon the enterprise in response to these threats upon the ground that the islands were not subject to the jurisdiction of that government. The result was that the vessels were captured and condemned by the Buenos Ayres authorities. When suit was later brought upon the policies, which covered any loss whatever, the underwriters tried to make out a defense based upon the circumstances detailed.
The court would not go into evidence to determine what state had sovereignty over the islands; it informed
itself by inquiry what position the executive department had taken. Mr. Justice MCLEAN upon this report stated the conclusion of the court; he said: The American government has insisted, through its regular executive authority, that the Falkland Islands do not constitute any part of the dominions within the sovereignty of the government of Buenos Ayres. There cannot be any doubt that when the executive branch of the government which is charged with our foreign relations shall in its correspondence with the foreign nations assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department. In this view it is not material to inquire, it is not 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 function he has decided the question. Having shown this under the responsibility which belongs to him, it is obligatory on the government; and we think in the present case, as the executive has viewed the jurisdiction, the fact must be taken and acted on by this court as thus asserted and maintained. The decision of the first point materially affects the second, which turns on the conduct of the master, who held that he was not appointed to decide but might lawfully stand on his right against all governments not having jurisdiction. The underwriters are therefore not discharged. This decision without doubt expresses the general law upon this whole question.20
20 POLITICAL POWERS.–Nabob v. East India Co., 1 Ves. Jr. 375; Sullivan v. Earl Spencer, Ir. R. 6 C. L. 173; Foster v. Neilson, 2 Pet. 307; Luther v. Borden, 7 How. 39; Mississippi v. Johnson, 4 Wall. 500; Georgia v. Stanton, 6 Wall. 77; Jones v. United States, 137 U. S. 212; In Re Cooper, 143 U. S. 503; Quackenbush v. United
3 28. Foreign.
The question of the recognition of the independence of states just decided must, it would seem, settle all questions as to the recognition of belligerency in states; since the greater must include the less. However, it may be well to cite one leading case in this matter of belligerency, since at times the problem has prominence. A case always mentioned at such times is United States v. Palmer, 3 Wheat. 610 (1818). This case was certified from the Circuit Court upon division of opinion as to the rights of belligerent cruisers of an unrecognized community; whether captures of the same constitute piracy. For, of course, unless the bare facts could be qualified by some doctrines of the law of war, the acts were acts of pirates.
In the course of the discussion of this case Chief Justice MARSHALL said: Questions which respect the rights of a part of a foreign empire which asserts and is contending for independence are generally rather political than legal in that character. They belong more properly to those who can declare what the law shall be, and who control the political designs of the nation. The proceedings in the court must depend upon
States, 177 U. S. 25; Taylor v. Beckham, 178 U. S. 578; Latham v. Clark, 25 Ark. 574; Haley v. Clark, 26 Ala. 439; In re Archy, 9 Cal. 147; Land Co. v. Routt, 17 Colo. 156; State v. Bulkeley, 61 Conn. 287; McWhorter v. Pensacola R. Co., 24 Fla. 417; Hilliard v. Conuel. ly, 7 Ga. 179; People v. Supervisors, 100 Ill. 495; State v. Hyde, 121 Ind. 20; State v. Wagner, 61 Me. 178; Larcom v. Olin, 160 Mass. 102; Chamberlain v. Sibley, 4 Minn. 309; People v. Hurlbut, 24 Mich. 63; Morton v. Green, 2 Neb. 441; Thompson v. Canal Fund Com’rs, 2 Abb. Prac. 248; State v. Chase, 5 Oh. St. 528; Taylor v. Place, 4 R.. I. 338; State v. McMillan, 52 S. C. 69; Druecker v. Salomon, 21 Wis. 621.
the course of the government, therefore the courts cannot condemn when the attitude of the government is declared. And so this is to be held no piracy. The courts of the Union must view any newly constituted government as it is viewed by the legislative and executive departments of the government of the United States. If the government remains neutral, the courts of the l'nion cannot consider as criminal those acts of hostility which the war authorizes.
l'pon the same basis, the executive in all international negotiations must have entire independence. This is shown in the long litigation in regard to the La Abra award, in which again and again it was attempted to bring the action of the department under the review of the judiciary. The most important of the cases is United States v. Blaine, 139 U. S. 306 (1891). The act of June 18, 1878, subjected specifically the payment of the Weil and La Abra awards, under the Mexican Claims Commission, to the control of the President. One Boynton sought mandamus in the Supreme Court of the District of Columbia against Blaine, then Secretary of State, for a mandamus to compel him to pay the petitioner as assignee of the Weil claim. The Secretary set up the plea that the President had forbidden the payment; that he held it as agent of the President; that the matter fell exclusively within the powers and competency of the President; and that the Secretary as subordinate to him and subject to his direction and control, was in nowise subject to the jurisdiction and competency of the judicial department of the government of the United States. That as it would involve an interference by
the said judicial department with a matter which was exclusively committed by the constitution to its coordinate, the executive, department, the court should therefore take no cognizance of the matter of the relator's petition.
Chief Justice FULLER disposed of the case in this wise: The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an executive department in the discharge of an executive duty, involving the exercise of judgment or discretion. In view of these settled principles, could the relator be entitled to his writ? International arbitration must always proceed on the highest principles of national honor and integrity. Claims presented and evidence submitted to such an arbitration must necessarily bear the impress of entire good faith. No technical rules of pleading, as applied to judicial courts, ought ever to be allowed to stand in the way of national power to do what is right under all circumstances. Every citizen who asks the intervention of his own government against another must necessarily subject himself and his claim to these requirements of international comity. This is a consequence of the political trust with which every government is charged with respect to its own citizens. The act of Congress cannot undertake to set any new limits on the powers of the executive. From beginning to end it is in form, even, only a request from Congress to the executive. It is far from making the President for the time being a quasi tribunal. So long as the political branch of the government had not lost its control over the subject matters by final action, the claimant was not in position, as between