The Place of International Law in American Jurisprudence. courts, for by our system of government there exists a complete separation of power, and no one of the three divisions of our government as denned by the Constitution— the legislative, executive, judiciary—may delegate any function expressly or impliedly vested it in. Hence it follows that the judiciary may not be vested with, nor con trol by its decisions a purely political matter. For instance, the political department of the government settles boundary controversies between this and foreign governments. Mr. Chief Justice Marshall laid this down in language which has become classic: "In a controversy between two nations con cerning national boundary, it is scarcely pos sible that the courts of either should refuse to abide by the measures adopted by its own government. "There being no. common tribunal to de cide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, accord ing 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. After these acts of sovereign power over the territory in dispute, asserting the Ameri can construction of the treaty by which the government claims it, to maintain the oppo site construction in its own courts would cer tainly be an anomaly in the history and prac tice of nations. If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have une quivocally asserted its right 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 na tions, is, as has been truly said, more a po litical than a legal question; and in its dis cussion the courts of every country must re spect the pronounced will of the legislature." (Foster and Elatn v. Neilson, 1829, 2 Pet. 253; compare also In Re Cooper, 1891, 143 U. S. 472, and The James G. Swan, 1892, 50 Fed. in.) Congress has been specifically empowered "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." (The Constitution, Art. I, Sec. 8.) It naturally follows that in these various matters the expressed will of Congress is binding upon citizens of the United States, and that courts of justice will give effect to an Act of Congress "as often as questions of right depending upon it arc duly presented for their determination." In the case of The Charming Betsy, 1804, (2 Cr. 64, 11 8) the great Chief Justice again said: "It has also been observed that an Act of Congress ought never to be construed to violate the law of nations if any other pos sible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce further than is warranted by the law of nations as understood in this country. And in The Nereide, 1815, (9 Cr. 388, 423) (the same eminent authority said: "Till such an act [of Congress] be passed, the court is bound by the law of nations, which is a part of the law of the land." And as Mr. Bishop has gravely and impres sively expressed it: "Doubtless if the legis lature, by words admitting of no interpreta tion, commands a court to violate the law of nations, the judges have no alternative
