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; Kennett 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 indepen lent 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

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. | 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, 1891, 49 Fed. Rep. 575, BUGBEE, J., U. S. C. C. App. 9th Cir. 1896, 75 Fed. Rep. 513, HAWLEY, J. A vessel was arrested for the violation of a statute under which a large number of British vessels had been seized; which seizures had been referred to arbitration as to whether they were proper. Held, that as by the terms of the Treaty of Arbitration with Great Britain the rights of British subjects were involved; the citizens of the United States had the same right to rely upon the award as to their rights under the statute as did the subjects of Great Britain; and that the award of the arbitrators under the treaty became the supreme law of the land and was as binding upon the courts as an act of Congress. The effect of the award on the Treaty of Arbitration is referred to at pages 517-519.

Cotzhausen vs. Nazro, U. S. Sup. Ct. 1882, 107 U. S. 215, MILLER, J. Construction of treaty and statutes

The Amiable Isabella, U. S. Sup. Ct. 1827, 6 Wheaton, 1, STORY, J., and see extract from opinion in note 4 of this section, p. 356, ante.

8 Meigs vs. McClung, U. S. Sup. Ct. 1815, 9 Cranch, 11, MARSHALL, Ch. J. In this action it was attempted to show that there was a mistake in an Indian treaty by which the word "above" was used instead of "below," a certain point on the river. Held, that the mistake could not be rectified by the court.

9 Pollard's Lessee vs. Files, U. S. Sup. Ct. 1844, 2 Howard, 591, CATRON, J.; Pollard's Lessee vs. Hagan, U. S. Sup. Ct. 1845, 3 Howard, 212, MCKINLEY, J.; Pollard's Lessee vs. Kibbe, U. S. Sup. Ct. 1840, 14 Peters, 353, THOMPSON, J. In all of these cases it was held that where the Executive had placed a construction upon treaties of cession as to the territory they included, the courts would sustain him.

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

Court has always left the Executive and Legislative departments free to act, practically without limitation, in regard to the matters which are wholly within their respective spheres.

Furthermore the limitations, if any, can never be defined until a treaty has actually been declared void; because the Supreme Court has always adhered to the rule that no opinion in constitutional controversies can be inferentially extended beyond the points directly involved and expressly determined." So long, therefore, as treaties are declared valid, any reference of any kind, or any opinion expressed as to

J., (aff'd U. S. Sup. Ct. 1862, 2 payments under a treaty and disreBlack, 481, CLIFFORD, J.). gard any writs of injunction which the judiciary might allow.