himself and the government, to insist on the conclusiveness of the award as to him. On the contrary the control was expressly reserved and made the duty of the President. 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 and discretion. The political department has no doubt of its power over the matter; and the intervention of the judicial department cannot now be invoked.

These diverse cases certainly are enough to establish that in governmental action the executive department can in no way be controlled. Certainly, these few cases are not enough to give any definite conception as to what the function of the executive in government is. However, it must be obvious by this time that the executive has a part in government that is its own. Under our constitutional system many of the highest matters of state are intrusted to the executive department. What these shall be in a broad way is a question for specification in the constitution. It cannot be said in how many ways the executive has governmental functions without reference to the constitution itself. But when an executive power is found the independence of it must be conceded.21

21 FOREIGN.-Rose v. Himely, 4 Cranch 272; United States v. Arredondo, 6 Pet. 711; Williams v. Suffolk Insurance Co., 13 Pet. 420; Gelston v. Hoyt, 3 Wheaton 324; United States v. Palmer, 3 Wheaton 634; The Divina Pastora, 4 Wheaton 63; The Santissima Trinidad, 7 Wheaton 283; Kennett v. Chambers, 14 How. 50; Bayard v. White, 127 U. S. 246; Jones v. United States, 137 U. S. 212; Fong Yue Ting v. United States, 149 U. S. 712; Durand v. Hollins,

4 Blatchf. 454.

1

$ 29. Interior.

Adherence to this principle often leads to results which startle one. The case of In Re Cooper, 143 U. S. 472 (1892), illumines the discussion like a flash of lightning. This was an application to the Supreme Court by the owners of the Canadian schooner Sayward, for a writ of prohibition to the District Court for Alaska to restrain the enforcement of a sentence of forfeiture and condemnation against the vessel. At the time diplomatic correspondence was in progress between the United States and Great Britain as to the proper extent of the jurisdiction of the United States over the waters of Behring Sea. The Sayward had been seized by the United States revenue cutter Rush in latitude 44° 43′ north and longitude 167° 51' west, fifty-nine miles from any land whatever. The schooner was engaged when captured in pelagic sealing, the indiscriminate shooting of fur seals at sea. The commanding officer of the Rush made the seizure in pursuance of express orders issuing from the Treasury Department at Washington, covering his action within these waters.

Mr. Chief Justice FULLER dealt with the problem in a large way: How did it happen that the officers received such orders? It must be admitted that they were given in assertion on the part of this government of territorial jurisdiction over Behring Sea to an extent exceeding fifty-nine miles from the shore of Alaska; that this territorial jurisdiction in the enforcement of the laws protecting seal fisheries was asserted by actual seizures during the seasons of 1886, 1887 and 1889 of a number of British vessels; that the government persistently maintains that such jurisdiction belongs to it;

§ 29 and that negotiations are pending on the subject. It is conceded that in matters committed by the constitution and the laws of the United States either to Congress or the executive or to both, courts are clearly bound by the action of Congress or the executive or both, within the limits of the authority conferred. The executive power can alone speak so as to bind our courts in respect to the sovereignty of foreign territory, the changes in foreign governments, the existence of civil war in foreign countries, and the character of a foreign minister. The application calls upon the court to decide whether the government is right or wrong and to review the action of the political departments upon the question, contrary to the law upon that question.

In this connection a case that is worth careful discussion is Luther v. Borden, 7 How. 1 (1849), because of the relations between the nation and the states composing the Union that are involved. This litigation arose out of the Dorr Rebellion, so remembered, in Rhode Island in 1841. Rhode Island had kept on under her colonial charter, which provided no way of amendment. This led to a political revolt by a portion of the people, who held a convention, which submitted a constitution, and who thereupon held elections, declared their candidates elected. All this time the charter government held to its position. The consequence was that several encounters more or less violent took place. In the particular case, one of the constitutional side was arrested and his house searched; he thereupon sued an officer of the charter government. The defense was necessary acts performed by them as duly authorized acts of the state government during a state of military necessity.

The determination of such issues was indeed a delicate matter; and the caution with which Chief Justice TANEY proceeds is noticeable, in his desire that the judiciary may not seem to intrude into questions political in their nature: The question which the plaintiff raised has not been recognized as judicial in any of the state courts, but the courts uniformly held that the inquiry proposed to be made belonged to the political power and not to the judicial, though it rested with the political power to decide whether the charter government has been displaced or not, and when that decision was made the judicial department would be bound to take notice of it as the law of the state without the aid of oral evidence or the examination of witnesses. We do not see how the question could be judicially decided in a state court. Judicial power presupposes established government capable of enacting laws and enforcing their execution and of appointing judges to expound and administer them. Acceptance of the judicial office is recognition of the authority of the government from which it is derived. If it decides at all as a court, it necessarily affirms the existence and authority of the gov ernment under which it is exercising judicial powers. The constitution of the United States, as far as it has provided for an emergency of this kind, has treated the subject as political in nature and placed the power in the hands of that department. The judicial power is at that time bound to follow the decision of the political. It must be equally bound when the contest is over. The President recognizes the Governor under the charter as the executive power of the state. No court of the United States with knowledge of this decision

could have been justified in recognizing the opposition party as the lawful Governor or not treated as wrongdoers or insurgents the officers of that present government. The court has been urged to express an opinion upon political rights and political questions. We decline doing so. This tribunal should be the last to overstep the boundaries that limit its jurisdiction. Whether a new government has been established or not is a question to be settled by the political power; and when that power has decided the courts are bound to take notice. of the decision and to follow it.

In rough outline these cases cover the diplomatic field of political powers. The function of the executive department in determination of these matters is obviously of consequence; for these are high matters of state upon which great issues may depend. The recognition of the independence of an insurgent community may mean war for the state which presumes to recognize it. Even that lesser move, the recognition of belligerency, may be deemed an unfriendly act. The very statement of this situation shows that the questions involved are all political. The very description of political power shows that exercise of such functions must in any government be largely held by the executive department, as that branch of the government which must be so constituted to act with rapidity and to act with effect. It is for this that an executive department exists. Political power must in its nature be free from exterior influences so far as that may be permitted. There must be free activity for the conduct of the most consequential matters in a state, its political concerns.22

22 INTERIOR.-Doe d. Clark v. Braden, 16 How. 657; United States v.