sess jurisdiction over certain cases concurrently with that possessed by the Federal courts. This, however, is not a jurisdiction which is conferred upon them by Federal statute, but one which they possess under State law and which they are permitted to retain even after the same jurisdiction is by act of Congress conferred upon the inferior Federal tribunals. Congress, indeed, is without power to confer jurisdiction upon any courts not created by itself.20

Congress may, however, delegate to State courts the performance of certain routine functions which do not involve the trial of "cases." 21 Thus, for example, any State chancellor, judge, or justice of the peace may cause to be arrested and committed or held to trial any person charged with an offense against the United States.

20 Houston v. Moore, 5 Wh. 1; 5 L. ed. 19.

21 Robertson v. Baldwin, 165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715.

CHAPTER XLII

POLITICAL QUESTIONS

Political questions

Elsewhere in this treatise the well-known and wellestablished principle is considered that it is not within the province of the courts to pass judgment upon the policy of legislative or executive action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in which those powers are exercised is not subject to judicial review. The courts, therefore, concern themselves only with the question as to the existence and extent of these discretionary powers.

As distinguished from the judicial, the legislative and executive departments are spoken of as the political departments of government because in very many cases their action is necessarily dictated by considerations of public or political policy. These considerations of public or political policy of course will not permit the legislature to violate constitutional provisions, or the executive to exercise authority not granted him by the Constitution or by statute, but within these limits they do permit the departments, separately or together, to recognize that a certain set of facts, that a given status, exists, and these determinations, together with the consequences that flow therefrom, may not be traversed in the courts.

In the exercise of his political powers, not only the President, but those acting under his order are exempt from judicial control.1

1 Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60.

No comprehensive enumeration of these political determinations has been attempted by the courts, nor, indeed, is such an enumeration possible. Specifically, however, the following have been decided, as the cases have arisen, to be political and, therefore, not justiciable.

In Georgia v. Stanton 2 the court denied that it had jurisdiction, because the matter was a political one, to restrain the Secretary of War and the military authorities from putting into force certain acts of Congress providing for a military "reconstruction" government in the State of Georgia.

In Foster v. Neilson,3 the existence and territorial extent of the sovereignty of the United States or of foreign states, and, of course, as involved herein, the de jure character of their governments, were held to be political questions.

4

In Ex parte Cooper, the court expressed itself bound by the action of the political departments claiming that the jurisdiction of the United States extended more than fifty-nine miles from the shores of Alaska.

In United States v. Palmer,5 questions as to the existence of war, belligerency, and neutrality, were similarly held to be political in character, and not subject to judicial determination.

Whether or not a treaty or other international agreement is in force is exclusively within the determination of the

26 Wall. 50; 18 L. ed. 721.

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

4 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232. See, also, Williams v. Suffolk Ins. Co., 13 Pet. 415; 10 L. ed. 226, and Jones v. United States, 137 U. S. 202; 11 Sup. Ct. Rep. 80; 34 L. ed. 691.

53 Wh. 610; 4 L. ed. 471. See, also, The Divina Pastora, 4 Wh. 52; 4 L. ed. 512; The Santissima Trinidad, 7 Wh. 283; 5 L. ed. 454, and Kennett v. Chambers, 14 How. 38; 14 L. ed. 316.

6

political departments. So also is the status of accredited agents of foreign countries."

8

In Boynton v. Blaine it was held that a mandamus would not lie to control the executive department with reference to claims prosecuted by it against foreign States in behalf of private persons.

In Luther v. Borden 9 the judiciary was declared to be without authority to reverse the decision of the political departments of the national government as to the de jure character of two contesting governments of a State of the Union.

In Martin v. Mott, 10 it was held that the courts could not question the propriety of the action of the President, acting under the law of 1795, in calling out the militia to suppress an insurrection or to repel an invasion.

In Neely v. Henkel 11 it was held to be exclusively the function of the political branch of the government to determine how long the military occupation and control of Cuba should continue.

In United States v. Holliday, 12 the question as to the existence of tribal relations among Indians was declared to be a political one.

Though questions of the extent of political jurisdiction are, as has been seen, essentially political in character, they are as between the individual States of the Union justiciable in the Supreme Court. This, however, is due to the express provision of the Constitution giving to that court original jurisdiction over "controversies between

6 Doe v. Braden, 16 How. 635; 14 L. ed. 1090; Terlinden v. Ames, 184 U. S. 270; 22 Sup. Ct. Rep. 484; 46 L. ed. 534.

7 Ex parte Baiz, 135 U. S. 403; 10 Sup. Ct. Rep. 854; 34 L. ed. 222. 8139 U. S. 306; 11 Sup. Ct. Rep. 607; 35 L. ed. 183.

97 How. 1; 12 L. ed. 581.

10 12 Wh. 19; 6 L. ed. 537.

11 180 U. S. 109; 21 Sup. Ct. Rep. 302; 45 L. ed. 448. 12 3 Wall. 407; 18 L. ed. 182.

two or more States." This precise question is more particularly discussed in a later chapter dealing with suits between States.

Courts will exercise jurisdiction when private rights are involved

In all of the foregoing cases the courts have held themselves bound by the positions assumed by the executive and legislative departments. When, however, private justiciable rights have been involved in a suit, the court has indicated that it will not refuse to assume jurisdiction even though questions of extreme political importance are also necessarily involved.

Thus, as has been set forth in another chapter, treaties entered into by the United States not only bind the United States internationally, but create municipal law for individuals so far as their personal rights and property are concerned. Thus a treaty having been entered into the courts will follow its terms even when, by doing so, it has to go counter to the position previously assumed by the executive department, or, indeed, contended for by the government in the case at bar. 13

Courts will not perform administrative functions

From the foregoing it appears that the courts themselves decline to assume jurisdiction with reference to matters of a political character. So also, they have held that it is beyond the constitutional power of Congress to impose upon them the performance of duties essentially administrative in nature. The instances in which the lower Federal courts have refused to perform administrative functions are considered in a later chapter. So also, it has been held that these courts sitting as equity tribunals

13 Ex parte Cooper, 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232; The La Ninfa, 75 Fed. Rep. 513.