In the Prize Cases, 2 Black (U. S.) 635, 17 L. Ed. 459, much later than any of those above cited (relating not to foreign but to domestic relations, and therefore not strict ly applicable), this language is used : "As in the case of an insurrection, the President must, in the absence of congressional action, deter mine what degree of force the crisis demands, and as in political matters the courts must be governed by the. decisions and acts of the political depart ment to which this power is entrusted, the proc lamation of blockade by the president is of itself conclusive evidence that a state of war existed which demanded and authorized recourse to such a measure." In this case, the court terms the executive the political department of the government, and in a later case it so designates congress; U. S. v. Yorba, 1 Wall. (U. S.) 412, 17 L. Ed. 635. More recently in a case in which the president was authorized, by act of congress, to declare that a guano island belonged to the United States, the court said : "Who is the sovereign, de jure or de facto, of a territory is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclu sively binds the judges as well as all other officers, citizens, and subjects of that government ;" Jones v. U. S., 137 U. S. 202, 31 Sup. Ct. 80, 34 L. Ed. 691.
With reference to the status of the rev olutionary party of Chile, the circuit court of appeals said that it was to be regarded by the courts as determined by the executive department of the United States; The Itata, 56 Fed. 505, 5 C. C. A. 608; affirming U. S. v. Trumbull, 48 Fed. 99.
The earliest reference to this subject by a text-writer is by Rawle, who says : "The power of receiving foreign ambassadors car ries with it, among other things, the right of judg ing in the case of a revolution in a foreign country, whether the new ruler ought to be recognized. The legislature, indeed, possesses a superior power, and may declare its dissent from the executive recogni tion or refusal, but until their sense is declared, the act of the executive is binding. The judicial power can take no notice of a new government, until one or the other of those two departments has acted on it. Circumstances may render the decision of great importance to the interests and peace of the coun try. A precipitate acknowledgment of the independ ence of part of a foreign nation, separating itself from its former head, may provoke the resentment of the latter ; a refusal to do so may disgust the former, and prevent the attainment •of amity and commerce with them if they succeed. The principle on which the -separation takes place must also be taken into consideration, and if they are conform able to those which led to our own independence, and appear likely to be preserved, a strong impulse will arise in favor of recognition. . . . The power of congress on this subject cannot be controlled; they may, if they think proper, acknowledge a small and helpless community, though with a certainty of drawing war upon our country_; but greater cir cumspection is required from the president, who, not having the constitutional power to declare war, ought ever to abstain from a measure likely to produce it." Rawle, Const. 195.
A little later Story wrote: "The exercise of this prerogative of acknowledg ing new nations or ministers is, therefore, under such circumstances, an executive function of great delicacy, which requires the utmost caution and de liberation. . . . If such recognition is made, it is conclusive upon the nation, unless indeed, it can be reversed by an act of congress repudiating it. If, on the other hand, such recognition has been re fused by the executive, it is said that congress may,. notwithstanding, solemnly achnawledge the saver-, eignty of the nation or party (citing Rawle). These; however, are propositions which have hitherto re mained as abstract statements under the constitu tion, and therefore can be propounded, not as abso lutely true, but as still open to discussion if they should ever arise in the course of our foreign di plomacy. The constitution has expressly invested the executive with power to receive ambassadors and other minleters. It has not expressly invested congress with the power either to repudiate or ac knowledge them." 2 Sto. Const. § 1566.
In connection with this treatment of the subject is to be considered the judicial ut terance of Judge Story, before cited from Williams v. Ins. Co., 3 Sumn. 270, Fed. Cas. No. 17,738. Pomeroy is also cited in Senator Hale's memorandum as an authority in favor of the exclusive executive control, which he does assert' strongly with reference to for eign relations, and the treaty-making pow er in general, but he does not discuss the particular question under consideration; while he enforces with great earnestness the necessity of harmonious action of congress and the executive, and of their co-operation in giving due effect to the powers confided to each ; Porn. Const. Law § 675.
Dr. Wharton, in his Digest of Internation al Law, in discussing the subject of the rec ognition of various revolutionary govern ments, entitles section vii. of chap. iii., vol. 1, thus : "Such recognition determinable by executive," thus implying the opinion that the right rests with the executive alone. The author states the proposition embodied in his caption more fully thus: "In political matters the courts follow the de partment of the government to which those mat ters may he committed, and will not recognize the existence of a new government until it has been recognized by the executive." Most of the cases, however, which are cited by him under this caption are among the authorities upon the proposition already noted, that it is not a matter for the judi cial department of the government, but that the courts will not take cognizance of the existence of a the government until it has been recognized by the politica/ department of the government, with out discriminating between the executive and legls lative branches of the government.