Meanwhile none of the European govern ments had recognized the Chinese republic.
The courts have frequently had occasion to determine whether the independence of a foreign country should be recognized as existing for the purpose of the pending case, but not to pass upon the question of power as between the executive and legislative de partments. In an. early case Marshall, C. J., said that before a nation "could be considered independent by the judiciary of foreign nations, it was necessary that its inde pendence should be recognized by the executive au thority of those nations. That as our executive had never recognized the independence of Buenos Ayres, it was not competent to the court to pronounce its independence." U. S. v. Hutchittgs, 2 Wh. Cr. Cas. (N. Y.) 648, Fed. Cas. No. 15,429.
A little later, on certificate of division, the supreme court had before it the direct ques tion of the rights of a revolting colony, or portion of a nation which has declared its independence. The case was the trial for piracy of one of the revolutionary subjects.
Marshall, C. J., speaking for the court, said : "Those questions which respect the rights of a part of a foreign empire, which asserts and is con tending for its independence, and the conduct which must be observed by the courts of the Union to wards the subjects of such section of an empire who may be brought before the tribunals of this country, are equally delicate and difficult. . . .
Such questions are generally rather political than legal in their character. They belong more prop erly 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 confined to the application of the rule which the legislature may prescribe for it." The certificate of opinion was " . . The court is further of opinion that when a civil war rages in a foreign nation, a part of which sep arates itself from the old established government, and erects itself into a distinct government, the courts of the Union must view such newly con stituted government as it is viewed by the legis lative and executive departments of the govern ment of the United States." U. S. v. Palmer, 3 Wheat. (U. S.) 610, 4 L. Ed. 471.
In a case involving the question of the right of citizens of the United States to the use of the seal fisheries at the Falkland Islands claimed by Buenos Ayres, Williams v. Ins. Co., 3 Sumn. 270, 273, Fed. Cas. No. 17,738, Mr. Justice Story said, "It is very clear that it belongs exclusively to the executive department of our government to rec ognize from time to time any new governments which may arise in the political revolutions of the world ; and until such new governments are AO rec ognized they cannot be admitted by our courts of justice to have or to exercise the common rights and prerogatives of sovereignty." He adds that "this doctrine was fully rec ognized by the supreme court" in Gelston v. Hoyt ; which was one of those cases cited infra in which the court had referred to the recognition of independence, by the "gov ernment." On appeal from Judge Story's decision the supreme court held that the action, of the executive department of the government, on the question to whom the sovereignty of the islands belonged was bind ing and conclusive on the courts, and it was enough that in the exercise of his constitu tional functions the president had decided that question; Williams v. Ins. Co., 13 Pet. (U. S.) 417, 420, 10 L. Ed. 226. In several cases the court has said that the question of the recognition of belligerency or independ ence is one for the government of the United States ; The Divina Pastors, 4 Wheat. (U. S.) 52, 4 L. Ed. 512; The Nueva. Anna, 6 Wheat. (U. S.) 193, 5 L. Ed. 239; Gelston v. Hoyt, 3 Wileat. (U. S.) 324, 4 L. Ed. 381; Rose v. Himely, 4 Cra. (U. S.) 241, 272, 2 L Ed. 608; and again congress and the president are referred to as "those depart ments" having the control of such matters; U. S. v. Lynde, 11 Wall. (U. S.) 632, 638, 20 L. Ed. 230. On a bill to enforce an agree ment the validity , of which turned on the question whether at its date Texas was, or was uot, independent, Taney, C. J., said that "was a question for that part of our govern ment which is charged with our foreign relations," and it was held that the court could not inquire whether it had not in fact become an independent sovereign. state before its recognition as such by the treaty making power ; Kennett v. Chambers, 14 How. (U. S.) 38, 51, 14 L. Ed. 316.