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State and to substitute an unconstitutional one therefor. In declining to issue the orders prayed for, the court say:

"In looking into it, it will be seen that we are called upon to restrain the defendants, who represent the executive authority of the government, from carrying into execution certain acts of Congress, inasmuch as such execution would annul and totally abolish the existing State Government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State, by depriving it of the means and instrumentalities whereby its existence might, and otherwise would, be maintained.

"This is the substance of the complaint, and of the relief prayed for. The bill, it is true, sets out in detail the different and substantial changes in the structure and organization of the existing government, as contemplated in these acts of Congress; which, it is charged, if carried into effect by the defendants, will work this destruction. But, they are grievances, because they necessarily and inevitably tend to the overthrow of the State as an organized political body. They are stated, in detail, as laying a foundation for the interposition of the court to prevent the specific execution of them; and the resulting threatened mischief. So in respect to the prayers of the bill. The first is, that the defendants may be enjoined against doing or permitting any act or thing, within or concerning the State, which is or may be directed, or required of them, by or under the two acts of Congress complained of; and the remaining four prayers are of the same character, except more specific as to the particular acts threatened to be committed.

"That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the judgment of the court upon political questions, and upon rights, not of person or property but of a political character, will hardly be denied. For the rights, for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with all its constitutional powers and

privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill, in a judicial form, for the judgment of the court."

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$580. Existence and Territorial Extent of Sovereignty.

The existence and territorial extent of the sovereignty of a State, involving, of course, the question as to the de jure character of a government, have been held to be political questions.

In Foster v. Neilson was involved the determination whether Spain or the United States had sovereignty over a given district. The decision as to this, the court held, was a purely political one to be made by the executive, and without judicial power of revision. In his opinion Marshall declares: "If those departments which are entrusted 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 construction 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 a political than a legal question, and in its discussion, the courts of every country must respect the pronounced will of the legislature."

5" It is true," the opinion continues, "the bill, in setting forth the political rights of the State, and of its people to be protected, among other matters, avers that Georgia owns certain real estate and buildings therein, State Capitol and executive mansion, and other real and personal property; and that putting the acts of Congress into execution, and destroying the State, would deprive it of the possession and enjoyment of its property. But it is apparent that this reference to property and statement concerning it, are only by way of showing one of the grievances resulting from the threatened destruction of the State, and in aggravation of it, not as a specific ground of relief. This matter of property is neither stated as an independent ground, nor is it noticed at all in the prayers for relief. Indeed the case, as made in the bill, would have stopped far short of the relief sought by the State, and its main purpose and design given up, by restraining its remedial effect, simply to the protection of the title and possession of its property. Such relief would have called for a very different bill from the one before us."

62 Pet. 253; 7 L. ed. 415.

In Ex parte Cooper the court expressed itself bound by the action of the political departments claiming jurisdiction to an extent exceeding fifty-nine miles from the shore of Alaska. It was intimated, however, that should a case involving private rights arise, but bearing upon a point public in its nature which had not been passed upon by the political departments, the court would be constrained itself to decide the point.

The political departments of the United States Government, that is to say, the executive and legislative departments, have the final and conclusive word not only as to the existence of American sovereignty over a given district, but as to which of two or more contending foreign States has de jure jurisdiction. This was declared in Williams v. Suffolk Insurance Co. In this case a vessel, insured generally against loss, was ordered by the government of Buenos Ayres not to catch seal off the Falkland Islands. The master of the schooner denied the jurisdiction of Buenos Ayres, and was captured and condemned by the authorities of Buenos Ayres. Upon suit being brought for the insurance, these facts were set up by the insurers. The Supreme Court, however, refused to consider the evidence as to sovereignty, but held itself concluded by the action of the political departments of the United States Government, saying: "Can there be any doubt that when the executive branch of the government, which is charged with the foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it 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 functions, he has decided the question. IIaving done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union. If this were not the rule cases might often arise in which, on most important questions of foreign jurisdiction, there would be an irreconcilable difference 7143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232.

8 13 Pet. 415; 10 L. ed. 226.

between the executive and judicial departments. By one of these departments, a foreign island or country might be considered as at peace with the United States whilst the other would consider it in a state of war. No well-regulated government has ever sanctioned a principle so unwise, and so destructive of national character."

Again, in Jones v. United States the court say: "Who is the sovereign de jure or de facto of a territory is not a judicial but a political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges as well as all other officers, citizens and subjects, of the government. All courts are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings."

§ 581. War: Belligerency: Neutrality.

From the cases already cited, it follows that determinations by the political departments as to existence of a status of independence, or of war, or of belligerency, are not reviewable by the

courts.

In United States v. Palmer10 Marshall declares: "Those questions which respect the rights of a part of a foreign empire which asserts or is contending for its independence, and the conduct which must be observed by the courts of the Union towards the subjects of such section of an empire who may be brought before the tribunals of this country are generally rather political than legal in their character. They belong more properly to those who can declare what the law shall be; who can place the nation in such a position with respect to foreign powers as to their own judgment shall appear wise, to whom are entrusted all its foreign relations, than to that tribunal whose power as well as duty is

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9137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691.

10 3 Wh. 610; 4 L. ed. 471.

confined to the application of the rule which the legislature may prescribe for it. In such contests a nation may engage itself with the one party or the other may observe absolute neutralityor may make a limited recognition of it. The proceedings in the court must depend so entirely on the course of the government that it is difficult to give a precise answer to questions which do not refer to a particular nation. It may be said, generally, that if the government remains neutral, and recognizes the existence of a civil war, its courts cannot consider as criminal those acts. of hostility which war authorizes, and which the new government may direct against the enemy. To decide otherwise, would be to determine that the war prosecuted by one of the parties was unlawful, and would be to array the nation to which the court belongs against that party. This would transcend the limits prescribed to the judicial department." 1

11

Of course the courts of one country are not bound by the decisions of another country as to the territorial extent of jurisdiction of that country, or indeed as to any question of international law and right. In Rose v. Himely12 the court, speaking through the mouth of Marshall, says: "Of its own jurisdiction, so far as depends on municipal rules, the court of a foreign nation must judge, and its decisions must be respected. But if it exercise jurisdiction which, according to the law of nations, its sovereign could not confer, however available its sentences may be within the dominions of the prince from whom the authority is derived, they are not regarded by foreign courts. This distinction is taken upon this principle, that the law of nations is the law of all tribunals in the society of nations, and is supposed

11 In The Divina Pastora (4 Wh. 52; 4 L. ed. 512) Marshall again says: "The decision at the last term, in the case of the United States v. Palmer. establishes the principle that the government of the United States, having recognized the existence of a civil war between Spain and her colonies, but remaining neutral, the courts of the Union are bound to consider as lawful those acts which war authorizes, and which the new governments in South America may direct against their enemy." See also The Santissima Trinidad, 7 Wh. 283; 5 L. ed. 454, and Kennett v. Chambers, 14 How. 38; 14 L. ed. 316. 12 4 Cr. 241; 2 L. ed. 608.

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