Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-01-27

eAAou COutlutl0B. ~ - b8lu tnot tulB Is D kfe8t
compliment BY Her Majesty's Government to
this great tribunal, and that surely the Govern
ment Of the United States will not be put in the
attitude Of Directing 10 the decision Of the
question involved in the controversy by its own
highest legal tribunal.
III it be q compliment TO this court to as
sumo that 1t win break away from its constitu-
tional duties as q purely judicial tribunal and
attempt to invade the domain Of the executive
and usurp purely political and executive func-
tons, at the instance of foreign nation in Q
diplomatic controversy with our own Govern
ment OF many years standing, then the appear
ance Of the British Government here in the
role Of a sutton Is q compliment.
The answer TO all this is very simple. The
Constitution of the United States has made q
division Of governmental powers between diff
ferent departments. It has assigned to one de-
partment Legislative and political functions, to
another executive and political functions, to q
third simply judicial functions.
1T may be that in the opinion Of some per-
sons different distribution Of powers would
have been wiser. Possibly the Supreme Court
should shape our foreign policy. It is sufi-
Gent to say that such Is not the Constitution,
and that no branch of the Government has any
right to surrender any function imposed upon
1t by the Constitution or by law, whatever may
be thought Of the wisdom Of the present dis
tribution.
State, to Citizen Genet, minister from France,
under date Of November "a, 1873, the following
paragraph is found:
g The President being the only channel Of
communication between this country and for
eign nations, it is from him alone that foreign
| nations or their agents are to learn what is or
has been the will Of the nation; and whatever
he communicates as such they have a right and
are bound to consider as the expression OF the
| nation, and no foreign agent can be allowed to
question it, to interpose between him and any
other branch Of Government, under the pretext
OF either's transgressng their functions, nor to
| make himself the umpire and final judge be-
| tween them. l am, therefore, sir, not author
lied to enter into any discussion with you on
the meaning of our Constitution in any part Of
it, or to prove to you that it has ascribed to him
alone the admission or Introduction Of foreign
agents l inform you Of the fact by authority
from the President. >"
WHAT THE SUPREME COURT HAS SAID.
Upon this point this court itself has spoken in
not doubtful tones. In the sinking fund cases
(99 U. S., 7l8) Chief Justice Waite uses the fol-
lowing languages:
One branch Of the Government cannot en-
croacb on the domain o. another without dam
ger. The safety Of our institutions depends in
no small degree on a strict observance OF this
salutary rule.
Mr., Chief Justice Marshall, in the case of Fos-
ter Il Elam Nelson G. Peters Rep, 3O9),
uses the following language:
In controversy between two nations con-
corning national boundary. it is scarcely posi-
| BILE that the courts Of either should refuse to
| abide by the measures adopted by its own gov
eminent. There being no common tribunal to
decide between them each determines for itself
| on its own rights, and if they can not adjust
| their differences peaceably, the right remains
with the strongest. The Judiciary is not that
department Of the government to which the as
is confded; and its duty commonly is to decide
upon individual rights, according to those
principles which the political departments Of
the nation have established. If the course Of
the nation has been a plain one, its courts
would hesitate to pronounce it erroneous
And again, on page 800 in the same decision,
it is said:
II those departments which are intrusted
with the foreign intercourse Of the nation,
which assert and maintain its interests against
foreign powers, have unequivocally asserted its
rights OF dominion over a country Of which it
is in possession, and which it claims under a
treaty; if the legislature has acted on the con-
struction thus asserted, it is not in its own
courts that this construction is to be denied.
A question like this respecting the boundaries
Of nations is, as has been truly said, more po-
ltical than legal question; and in its discus
sion the courts of every country must respect
the pronounced will of the legislature.
So, in Garcia vs.. Lee az Peters. Sly, Chief
Justice fancy quotes and adopts the language
of Chief Justice Marshall above quoted as ex-
pressive of the rule to be observed.
In the case in re Baiz Q35 U. s., 403). the
question was whether the petitioner, who sought
| a prohibition against the district court, was
exercising diplomatic functions SO as to entitle
him to trial in this court under the Constitu-
| ton. The language of Mr.. Chief Justice Fuller,
on page 431, is az follows:
We ought to add that while we have not cared
| to dispose Of this case upon the mere absence
Of technical evidence, we 90 not assume to sit
| in Judgment upon the decision of the executive
in raference tn the nnblic characfa-. of the
son claiming to be foreign minister, and there
fore have the right to accept the certificate of
| the State Department that party is or is not a
privileged person, and can not properly be asked
to proceed upon argumentative or collateral
proof.
| In Cherokee Nation vs. State of Georgia g
Pet, /. 29), where this court was asked to enoin
| the State of Georgia from trespassing upon, and
| taking possession of, the lands Of the Cherokee
Nation. Mr.. Justice johnson, in an opinion con-
curing with the court denying the applca-
| ton. says:
| II the State of Maine were to extend its laws
| over the province of New Brunswick, and send
| its magistrates to carry them into effect, it
| would be parallel case. In the Nabob of Ar
Gotta case a Bro. Cha. Ca. $50, and and 2
Vesey, Jr. Sc, SD, case Of a political charac-
\ ter not one-half strongly marked as this, the
courts of Grea. Britain refused to take juris-
diction because i. had its origin in treaties en-
tered into between sovereign states; q case in
which the appeal is to the sword and to Almighty
| Justice and not to courts of law or equity. In
the exercise of sovereign right the sovereign is
| sole arbiter of his own justice. The penalty of
| wrong is war and subjugation.
| In deciding Williams v. The Suffolk Insurance
| Company 6 Sumner, p. 275), at circuit, Mr..
Justice Story uses the following languages:
| This court, in its judicial character, cannot
entertain political questions of this nature, or
settle the rights and claims as to territory and
sovereignty in controversy between us and
foreign nations. On the contrary. this court is
bound, 30 far as its own functions are con-
cerned, to act upon the ground that the claims
| Of our Government, and its assertions of its
rights in this respects, are correct. Omnia rite
acta. 1t might otherwise happen that the extra
ordinary spectacle might be presented Of the
courts Of a country dlsallowing and annulling
| the acts of its own Government in matters Of
state and political diplomacy. The true doc
| trine on this subject was laid down by the Su-
preme Court Of the United States in Foster ".
Nelson q Peters r., 253. 800, and it was fully
| acted upon at the last term of that court in the
case of Garcia v. Lee az Feters R., SID.
| Fortunately this court has very recently had
occasion to consider this division Of govern
mental powers, and has disclaimed any au-
thority, or claim Of right to pioneer the way
| for the Executive Department in matters Of
this character. In the case of Jones v. The
United States (Vol 1877, p. 2l2), this court says:
| Who is the sovereign, de jure or de facto of a
territory is not a judicial but political ques-
| ton, the determination of which by the legis-
lative and executive departments Of any gov
eminent conclusively binds the Judges as
well as other officers, citizens, and subjects of