CHAPTER III. The Relations of the Judiciary to the Political

THE RELATIONS OF THE JUDICIARY TO THE POLITICAL DEPARTMENTS OF GOVERNMENT

Courts of Claims are the only permanent special courts for the disposition of causes arising from the acts of public officials.[Footnote: One exists for the United States; and one for New York.] The system of administrative law prevailing on the Continent of Europe, by which all such matters are withheld from the ordinary tribunals, is totally unknown here. If the Secretary of War of the United States should do some act to a private citizen, which may be justified by his official powers, but otherwise would not be, he may be summoned to answer for it before any civil court having jurisdiction of the parties. So may even the President of the United States be sued after the expiration of his term.

The President, while President, however, cannot be compelled to obey a summons to appear in court. The country cannot spare him to go here and there in obedience to a writ. Chief Justice Marshall issued one against President Jefferson, directing him to appear at the trial of Aaron Burr and bring with him a certain paper. Jefferson declined to obey, and there was no attempt to enforce the subpoena. Had there been, it would have been found that he had taken measures for his protection.[Footnote: Thayer, "John Marshall," 79.] Marshall's action was based on an admission by the counsel for the government that a summons to testify could lawfully issue, though they denied that it could be accompanied by a direction to produce documents. This admission is now generally thought by the legal profession to have been ill-advised. If the President could be summoned at all, he could be compelled to obey the summons, and nothing could be more unseemly or inadmissible than an attempt of that nature by the judiciary against the executive power of the United States.

But while there is nothing like an administrative court for the disposition of causes against individuals in the United States, considered as a collection of States or of people within those States, more freedom has been used by Congress in providing for the Territories. This has been conspicuously the case in regard to the Philippines. By the Act of Congress of July 1, 1902, they were left under the supervision of the War Department, in which there was constituted a "Bureau of Insular Affairs," the business assigned to which "shall embrace all matters pertaining to civil government in the island possessions of the United States subject to the jurisdiction of the War Department; and the Secretary of War is hereby authorized to detail an officer of the army whom he may consider especially well qualified to act under the authority of the Secretary of War as the Chief of said Bureau." The officer filling the position of chief published in 1904 this account of the practical working of the provisions made for the disposition of matters of legal controversy occurring on the islands: "The establishment of a judicial system in the Philippines affords a means for the adjudication of litigated questions between the inhabitants and of many questions respecting the jurisdiction and authority of officials of that government. Whenever possible, controversies are referred to those tribunals. In some instances questions have arisen affecting the action or authority of officers of the executive department of that government in matters controlled by the discretion of the administrative branch and affecting the administration of civil affairs. These questions are considered and determined by the War Department, upon investigation and report by the law officer."[Footnote: National Geographic Magazine for June, 1904, p. 251.]

Under our American constitutional system, the only courts of an administrative or political nature for calling public officers directly to account for a breach of public duty are our courts of impeachment. These act only occasionally, and when specially convened for the purpose of hearing charges against a particular individual. They do not grant relief to any party injured by the wrongful acts which are the subject of the accusation. They sit only to punish the public wrong.

In constituting courts of impeachment, the control of the cause is generally given to officers of the legislative department, but judicial officers are often joined with them. Such a tribunal was long maintained in New York, of which the senators formed the majority, but in which the chancellor and judges of the Supreme Court also sat. The first Constitution of South Carolina, adopted in 1778, contained a similar provision (Art. XXIII).

In most States the Senate alone constitutes the court for trying impeachments, but should the Governor be thus brought before them, the Chief Justice is added to it, and presides. A similar provision is contained in the Constitution of the United States as respects the President. The main reason for putting such a proceeding under judicial direction is to avoid giving the second in rank of the executive magistracy, whose function it generally is to preside over the Senate, a position of authority over his chief, in a proceeding which, if successful, would put him in his place. It also, of course, tends to promote a trial in accordance with all the rules of law. The court in such a proceeding cannot be regarded as fully organized until the Chief Justice is present. It is then first competent to prescribe the rules to govern it during the progress of the cause. This was the ruling of Chief Justice Chase on the impeachment of President Johnson, which was tacitly acquiesced in by the Senate.

New York originally not only gave her legislature a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill should become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless re-passed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period 6,590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds vote necessary to re-enact them.[Footnote: Poore, "Charters and Constitutions," II, 1332, 1333, note.]

An obvious objection to this method of legislation is that the judges who, as members of a council of revision, find nothing objectionable in a bill presented for their scrutiny, must naturally have a certain pride of opinion to conquer before, should its constitutionality become afterward the subject of litigation before them, they could be in a frame of mind to render an unprejudiced judgment. One of the bills which came under the eye of Chancellor Kent as a member of the Council was afterward the source of controversy before him in court. He adhered to his original views, but was overruled by the Supreme Court of the United States. Chief Justice Marshall gave the opinion, and half apologetically alluded to this circumstance in these words:

The State of New York maintains the constitutionality of these laws; and their legislature, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names--by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them, with that independence which the people of the United States expect from this department of the government.[Footnote: Gibbons v. Ogden, 9 Wheaton's Reports, 1.]

A device for obtaining the same end--the views of the judges in advance of the enactment of a law--in a different way, has been from the first quite common. This is for the legislature to ask them specially for their opinion as to the constitutionality of a bill before it is put upon its passage. An analogous practice has always obtained in England, and was followed in several of the colonies.

Some of our State Constitutions expressly authorize such proceedings. In the absence of such authority, the judges can properly decline to comply with the request. It always asks them to prejudge a question which may later come before them in court, and to prejudge it without hearing any of the parties whom it may affect injuriously.[Footnote: See the Reply of the Judges of the Supreme Court of the General Assembly, 33 Conn. Reports, 586.]

President Washington, in 1793, brought a matter of this kind before the justices of the Supreme Court of the United States. It was during the controversy with M. Genet, the French minister, as to his right to refit a captured English merchantman as a privateer at an American port, and then send her out for a cruise. By the advice of his Cabinet, the President asked the justices a series of questions comprehending all the subjects of difference as to the proper exposition of the provisions of our treaties with France under which her minister made claim. They replied that they deemed it improper to enter the field of politics by declaring their opinions on questions not growing out of some case actually before them.[Footnote: Marshall, "Life of Washington," V, 433, 441.] No further request of this kind has since been made by any of the political departments to a court of the United States, except such as have been addressed to the Court of Claims.

Idaho, in her Constitution (Art. V, Sec. 25), has sought to give the legislature the benefit of judicial advice at the opening of each session as to what laws it might be desirable to enact. The judges of her trial courts are annually to report to those of her Supreme Court such defects and omissions in the laws as their knowledge and experience may suggest, and the latter, after considering these suggestions, are then, within the next five months, to report to the Governor such defects and omissions, both in the Constitution and in the laws, as they may find to exist.

The duty of the judiciary, in the course of lawsuits, to compare a statute, the validity of which is called in question, with the Constitution, and by the decision indirectly to affect legislation, is treated of elsewhere.[Footnote: Chap. VII.]

The courts of the United States, in controversies involving matters affecting the foreign relations of the general government, acknowledge in a certain degree a dependence upon the executive department. If they have a treaty to construe, any construction of it as to the point in question already given by the State Department will be followed, unless plainly wrong. If it becomes material to determine whether a certain country is subject to a certain power, and the President of the United States has dealt with that question (as by recognizing or refusing to recognize a minister accredited to the United States), his action will be accepted as conclusive. His proceedings would have like weight if taken within the limits of his authority with respect to the government of one of the United States.[Footnote: Luther v. Borden, 7 Howard's Reports, 1.]

When questions of this nature arise in a lawsuit between private parties, the courts can, without notice to them, seek information by communicating directly with the Department of State. It will be given by a letter or certificate, and this will be received as a conclusive mode of proof or as aiding the court in taking judicial notice of historical facts.

So an official letter or certificate from the minister or consul of a foreign power can be received and used as evidence as to facts in controversy peculiarly within the knowledge of that government.[Footnote: Gernon v. Cochran, Bee's Reports, 209.]

In prize cases, which must all be brought before the District Court, an appeal is allowed directly to the Supreme Court of the United States, although the judgments of the District Court generally are reviewable only in an intermediate court. This secures a prompt decision by the highest judicial authority of a question which necessarily affects, in some degree, the foreign relations of the United States.

But there may be cases affecting a vessel claimed as a prize which are not brought to secure her forfeiture and so are not prize cases. They may even to a greater extent affect our relations to foreign governments. How far can the courts, in dealing with these, govern their action by that of the executive?

This question came up for decision shortly after the adoption of the Constitution. Great Britain and Spain were at war. A British man-of-war brought a Spanish felucca into Charleston, claiming her as a prize, and she was advertised for sale. No proceedings to have her adjudicated a lawful prize had been taken before any court. The Spanish consul applied to the Circuit Court for an injunction against the sale, claiming that for the United States to permit it would be a breach of neutrality and contrary to the law of nations. The British consul resisted the application on the ground that a sale could not be forbidden in the absence of any act of Congress on the subject, except by the President. The Chief Justice, who sat in the case, gave the opinion, which was that there could be no lawful sale without the permission of the United States; that it was a matter proper to be dealt with by the President; that the court would not say how he should deal with it; but that an injunction might issue to stop the sale until further order, unless permission should be sooner obtained from the President.[Footnote: Consul of Spain v. Consul of Great Britain, Bee's Reports, 263.] Here, therefore, an act which might have been a casus belli was stayed by a court until and unless the Executive should intervene and permit it.

The extradition of criminals under a treaty on the demand of a foreign government presents a debatable ground in respect to the subject now under consideration. The surrender is an executive proceeding and a political act. But the laws may provide for a preliminary inquiry before a court into the propriety of complying with the demand. They certainly provide for a judicial proceeding by writ of habeas corpus to release any one arrested in such a proceeding if held without due cause. Is the court before which either of these proceedings may be had at liberty to receive advice or submit to instructions from the President of the United States?

This question stirred the country to its depths in 1799. Great Britain applied to our government for the extradition of a seaman who claimed to be an American citizen and was charged with committing murder on a British man-of-war. He was arrested in South Carolina, under a warrant from the District Judge, and lodged in jail. There was a treaty of extradition between the two powers covering cases of murder, but no particular machinery had been provided for regulating the surrender. The British consul asked the judge who had made the commitment to order his delivery to him. The judge doubted his power to do so. Thereupon the Secretary of State, by authority of the President, wrote him that the President advised and requested him to make the surrender, if satisfied with the proofs of criminality, as he (the President) was of opinion that any crime committed on a man-of-war was committed within the territory of the power to which it belonged. The judge complied with this request, after a public hearing on a writ of habeas corpus, under which he ordered the man in question to be brought before him, and in the course of it this letter was shown to counsel on both sides.

The surrender became at once the subject of heated debates in Congress, but the President's course was ably and conclusively defended by Marshall on the floor of the House,[Footnote: United States v. Nash alias Robins, Bee's Reports, 266; Robbins' Case, Wharton's State Trials, 392.] and the course pursued has since been followed in substance by our extradition statutes.[Footnote: United States Revised Statutes, Secs. 5270, 5272.] These provide for a hearing of a judicial character, and then, if that results in a determination that a surrender should be made, it may be ordered on a warrant from the State Department.

On the other hand, the peculiar provision of the Constitution of the United States which makes treaties the supreme law of the land calls upon the courts to enforce them according to whatever interpretation they may conclude to give them, even if it should differ from that adopted by the President or the State Department. If a treaty prescribes a rule by which the rights of private individuals are to be determined, and those rights are such as can be appropriately made the subject of a lawsuit, the court before which it may be brought has as full authority to construe the treaty as it would have to construe an act of Congress, were the matter in controversy one of a statutory nature. They cannot be appropriately made the subject of a lawsuit so long as the questions involved are under active consideration in the course of diplomatic negotiation and pending for decision before the President. Let him, however, once make his decision and the doors of the court fly open.

These principles are well illustrated by some incidents of our controversy with Great Britain over the seal fisheries in Behring Sea. There was a serious dispute between the two governments as to the limits of our jurisdiction over the waters adjacent to Alaska. We maintained that it ran to the middle of Behring's Straits and from the meridian of 172 deg. to that of 193 deg. west longitude. Great Britain contended for the three-mile limit. Pending diplomatic negotiations as to this point, one of our revenue cruisers seized a Canadian vessel which was engaged in seal fishing nearly sixty miles from the Alaskan coast, and she was condemned, on a libel by the United States, by an admiralty court in Alaska.

The owner in 1891 applied to the Supreme Court of the United States for a writ to prohibit the enforcement of this decree of confiscation. The Attorney-General of Canada filed in this suit papers in aid of the application, stating that he did so with the knowledge and approval of the imperial government, and that he would be represented by counsel employed by the British minister resident. The writ was refused on technical grounds, but the court, through Chief Justice Fuller, made these observations as to the merits of the cause:

In this case, Her Britannic Majesty's Attorney-General of Canada has presented, with the knowledge and approval of the Imperial government of Great Britain, a suggestion on behalf of the claimant. He represents no property interest in the vessel, as is sometimes done by consuls, but only a public political interest. We are not insensible to the courtesy implied in the willingness thus manifested that this court should proceed to a decision on the main question argued for the petitioner; nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.... We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, "since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."[Footnote: In re Cooper, 143 United States Reports, 472, 503.]

In the following year a convention was concluded between the United States and Great Britain for the submission of the question of our jurisdiction over Behring's Sea to arbitration. The arbitration took place and the award supported the British contention. Congress passed an act to give it full effect. The convention provided in terms that "the high contracting parties engage to consider the result of the proceedings of the tribunal of arbitration as a full, perfect and final settlement of all the questions referred to by the arbitrators."

In July, 1891, before the award was made, an American vessel engaged in the seal fishery outside the three-mile limit was seized by one of our revenue cutters. A libel was filed by the United States in the admiralty court for Alaska and she was condemned. Her owners appealed to the Circuit Court of Appeals, on the ground that the seizure was made outside of the jurisdiction of the United States. If so, they were entitled to her release. The court held that the limits of this jurisdiction were conclusively settled by the award, and thus adverted to the claim that they should treat the case as the Supreme Court of the United States had dealt with that which followed the seizure of the year before:

This question has been settled by the award of the arbitrators, and this settlement must be accepted "as final." It follows therefrom that the words "in the waters thereof," as used in