sume that it is in accordance with the constitution and proceed to enforce it. And when the validity of the act has been passed upon by the courts, the executive is as much bound by their decision as any private citizen. It would be a gross trespass upon the func tions of the judicial department if he should attempt to enforce a law which they had pronounced invalid, or refuse to execute a statute which had passed their scrutiny, in accordance with his private judgment.

Limitations on Judicial Power-As Respects the Legislature.

The judicial department is not to make the law, but to interpret and administer it. Nevertheless it is well known that much of the law actually administered in our courts does not owe its existence to legislative enactment, or even to the adoption of the common law, but to the interpretations of the courts, to their enforcement of custom, to the growth of lines of precedents, and to the development of the system of equity. But the gradual formation of this body of law, called "case-law" or "judge-made law," is not regarded as an infraction of the principle under consideration, or as an usurpation of legislative power by the courts. But as regards statutes, not unconstitutional, it is the plain duty of the courts to apply them as they find them. For instance, the correctness or incorrectness of a legislative opinion on which an act is founded is not a question within the province of the courts to determine; they must assume the fact to be as the legislature states or assumes it.32 Another application of the main rule teaches us that legislative powers cannot be imposed upon the judicial department. For example, a statute authorizing a court to assess county taxes is unconstitutional, as it orders a judicial tribunal to do a legislative act.33

Same As Respects the Executire.

There are but few conceivable cases in which the judicial department could usurp purely executive functions or attempt the performance of purely executive acts. But the importance of the principle, in this connection, is discovered in the rule that the courts must arrogate no supervision or control over the executive

32 People v. Lawrence, 36 Barb. 177.

33 Hardenburgh v. Kidd, 10 Cal. 402. See, also, Vaughn v. Harp, 49 Ark. 160; Ex parte Griffiths, 118 Ind. 83, 20 N. E. 513.

department in the discharge of its proper duties. The judiciary does not possess, and cannot exercise, any revisory power over executive duties.34 Thus the courts have no authority to require the chief executive of the state by mandamus, or forbid him by injunc tion, to perform any executive act which is political in its character, or which involves the exercise of judgment or discretion. At the same time, it is generally (though not universally) conceded that if the duty sought to be enforced is one within the scope of the governor's powers, but is merely ministerial in its nature, not political and not involving the exercise of judgment or discretion, but simply obedience to the commands of positive law, then, if the rights of private persons depend upon the performance of this duty by the executive, the writ of mandamus may issue to compel him.35 The rule settled by the United States courts in this regard is that they "will not interfere by mandamus with the executive officers of the government [such as the heads of departments or bureaus] in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the courts having no appellate power for that purpose. But when they refuse to act in a case at all, or when, by special statute or otherwise, a mere ministerial duty is imposed upon them, that is, a service which they are bound to perform without further question, then, if they refuse, mandamus will be issued to compel them.” 36

34 Astrom v. Hammond, 3 McLean, 107, Fed. Cas. No. 596.

35 Harpending v. Haight, 39 Cal. 189; State v. Fletcher, 39 Mo. 388; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126; State v. Chase, 5 Ohio St. 528. 36 U. S. v. Black, 128 U. S. 40, 9 Sup. St. 12; Marbury v. Madison, 1 Cranch. 137; U. S. v. Schurz, 102 U. S. 378; Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Noble v. Union River L. R. Co., 147 U. S. 165, 13 Sup. Ct. 271; Board of Liquidation v. McComb, 92 U. S. 531; U. S. v. Blaine, 139 U. S. 306, 11 Sup. Ct. 607; Decatur Bank v. Paulding, 14 Pet. 497. Mandamus will not lie to compel the secretary of state to pay over to a private citizen money collected by the United States from a foreign government, under arbitration or by diplomatic intervention, as indemnity for injuries inflicted by such foreign power or its subjects upon such citizen. There is no element of contract between the latter and the United States, nor is the fund held in trust for him in such sense that he can require its payment to him by process of law. U. S. v. Bayard, 4 Mackey (D. C.) 310.

POLITICAL QUESTIONS.

55. Questions which are of a political nature are not the subject of judicial cognizance; courts will leave the determination of them to the executive and legislative departments of the government.

Chief Justice Marshall, at an early day, observed that "questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” 37 And it is a well-settled general rule that no court will undertake to decide questions of this sort. When such questions arise in the course of litigation, the courts will refuse to take jurisdiction of the action, if it necessarily involves such a determination, or, if the question has been settled by the action of the political departments of the government, the judiciary will accept and follow their conclusions without question.38 There are two reasons for this rule. In the first place, courts ought not to usurp the functions of the political branches of the government nor intrude upon their jurisdiction, And, second, in public affairs of the state or nation, such as may be made the basis of executive or legislative action, the judicial tribunals must not hamper or embarrass the other departments by prejudging the questions which they will have to decide, or attempting to review their decisions already made.

27 Marbury v. Madison, 1 Cranch, 137, 170.

38 A good illustration of this rule is found in the case of Georgia v. Stanton, 6 Wall. 50. It was a bill filed by the state of Georgia against the Secretary of War, the general of the army, and the commander of the third military district, to restrain them from executing the "Reconstruction Acts" of congress, on the ground that such execution would annul and abolish the existing state government of Georgia, and establish another and different one in its place. The bill also alleged the ownership by Georgia of certain real and personal property, including the state capitol and executive mansion, and that the execution of the acts would deprive plaintiff of the possession and enjoyment of its property. It was held that the rights thus sought to be protected, being rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with its constitutional powers and privileges, the questions presented were political questions merely, belonging to the two great political departments of the government, and not the subject of judicial cognizance.

39

41

The question which of two opposing governments, each claiming to be the rightful government of a state, is the legitimate government, is an illustration of the kind of questions which the courts will refuse to decide on the ground of their belonging to the political departments. So, also, it belongs exclusively to the executive and legislative departments to recognize, or refuse to recognize, a new government in a foreign country, claiming to have displaced the old and to have established itself.40 And who is the sovereign, de jure or de facto, of a given district or territory, is not a judicial but a political question. Again, whether or not a state of war, insurrection, or public hostility, within the limits of the country, or between this country and a foreign power, existed at a given date, and the nature and extent of the war, if any existed, is a question on which the judicial tribunals must follow the political departments and accept their determination as conclusive.12 Treaties, in so far as they involve the rights of private litigants, may be the subject of judicial cognizance, but not with respect to their execution or their effect on public rights. Thus, no court has power to question, or in any manner look into, the powers or rights recognized by a treaty in the nation or tribe with which it was made.43 Nor are the courts authorized to inquire or decide whether the person who ratified a treaty on behalf of a foreign nation had the power, by its constitution and laws, to make the engagements into which he entered; if the executive department accepts the treaty as valid, that is enough for the courts.** And on the same principle, it is not for the courts to decide "whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; or whether the views and acts of a foreign sovereign, manifested through his representative here,

39 Luther v. Borden, 7 How. 1; Thomas v. Taylor, 42 Miss. 651.

40 Kennett v. Chambers, 14 How. 38.

41 Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80.

42 Gray v. U. S., 21 Ct. Cl. 340; U. S. v. One Hundred and Twenty-Nine Packages, 2 Am. Law Reg. 419, Fed. Cas. No. 15,941; Gelston v. Hoyt, 3 Wheat. 246, 324.

43 Maiden v. Ingersoll, 6 Mich. 373.

44 Doe v. Braden, 16 How. 635.

have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise." 45 So, again, the validity of the retrocession to Virginia of that part of her territory which was originally ceded to the United States to form part of the District of Columbia, is settled by the political departments of gov ernment and cannot be inquired into by the courts.10

Nor

But, on the other hand, the ascertainment of the boundary between two states, or between a state and a territory, is not so far political in its nature that the courts may not determine it. is the question of the eligibility of a person elected to executive office in the state government. Neither is the question whether or not an apportionment act (dividing the state into districts for the elec tion of members of the legislature) conforms to the requirements of the constitution.*

49

48

ADVISORY OPINIONS BY THE COURTS.

56. The courts cannot be required to render their opinions upon questions of law, except in cases actually before them. But in a few of the states, the constitutions empower the executive or legislative departments to demand the opinion of the supreme court on important questions relating to pending measures.

For instance, the constitution of Massachusetts declares that "each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court upon important questions of law and upon solemn occasions." 50 And in five or six other states similar consti

45 Taylor v. Morton, 2 Curt. 454, Fed. Cas. No. 13,799.

46 Phillips v. Payne, 92 U. S. 130.

47 U. S. v. Texas, 143 U. S. 621, 12 Sup. Ct. 488; Rhode Island v. Massachusetts, 12 Pet. 657.

48 State v. Gleason, 12 Fla. 190.

49 State v. Cunningham, 81 Wis. 440, 51 N. W. 724. And see same case, 83 Wis. 90, 53 N. W. 35; People v. Thompson, 155 Ill. 451, 40 N. E. 307.

50 Const. Mass. c. 3, art. 2.