From an .examination of all the decisions touching this question by the judicial de partment, no precise principle can be deduc ed unless it be that the references to it rest upon an assumption of entire harmony of action between the executive and legislative departments. And the fact that the direct issue arising from the claim of exclusive con trol by oue of those two departments has not heretofore been made, will readily account for the absence of direct judicial authority or authoritative expression of opinion by text-writers. The duties and powers of what the supreme court frequently terms the polit ical departments are so closely interwoven that it is unlikely that such an issue will be sharply drawn. Every approach to it hither to has resulted, after discussion, in the rec ognition by congress of the right of the ex " ecutive to full control of foreign relations and to the initiative in the practical recogni tion of a new foreign power, and, on the other hand, by a prudent disposition on the part of the executive not to act in a doubt ful case or one likely to create a casus belli without ascertaining the disposition of con gress. This has been simply the application to this particular subject of the principle of mutual recognition of the distribution, of powers, and at the same time, the interde pendence of the executive and congress which, with the prudent reserve of the judi ciary in keeping closely within the limits of its own sphere, has enabled the government to avoid the dangers of mere theoretical con struction alluded to by Otis in the quotation made from his remarks upon the subject. The undoubted constitutional powers of both departments bearing upon the question make harmony of action as necessary in dealing with this subject as with most, if not all, of the ordinary details of the government. While the president may undoubtedly recog nize a foreign government, as has frequently been done, such action, if it involved war, would still require the action of congress to make it effective, and doubtless the prece dents established by Presidents Jackson and Monroe, neither of whom was indifferent to the respect due to his office, will always have very great, if not controlling, weight. Again, the question recently raised of the right of congress by independent action and against the views of the president, to recog nize the independence of a new nation, is more likely to be met hereafter, as hereto fore, in the spirit of co-operation and full recognition of the executive control of for eign relations than to be asserted, to the extent of making a direct issue, as it would need to be by a majority of two-thirds of each house.
The United States government has always held, and, on occasion, exercised, right in case of disturbances of the peace, either general or local in foreign countries, to land forces and adopt and necessary measures to protect the life and property of our citizens, whenever menaced 'by lawless acts, which the general or local authority is unwilling or impotent to prevent. This power has al ways been exercised by the executive depart ment' of the government. The power was asserted in a dispatch of Mr Toucey, secre tary of the navy, to Captain Jarvis, U. S. N., March 13, 1860, with reference to the unset tled state of affairs in Mexico ; by Mr. Adee,
acting secretary of state to the Korean min ister, July 8, 1895, with reference to the af fairs in Korea ; by President McKinley in his annual message of Dec. 5, 1899, with ref erence to disturbances in China, and the power was also asserted with reference to disturbances in that country, by Mr. Hill, acting secretary of state to the secretary of the navy, Sept. 11, 1900;• and by a dispatch from Mr. Merry, United States minister to Nicaragua, Feb. 27, 1899, with reference to disturbances in that country and the landing of American and English forces. See 2 Moore, Int. L. Dig. 400-402.
Executive officers, including the president, are required to execute the laws as enacted by the legislature or congress, and can in no case nullify them by refusing to execute them so long as their unconstitutionality or invalidity has not been judicially establish ed, for, until this is done, the constitution ality is presumed, and in the judicial power alone resides the power to decide as to the validity of a statute ; Pom. Const. L. secs. 148, 662-668; Martin v. Hunter, 1 Wheat. (U. S.) 304, 4 L. Ed. 97; Cohens V. Virginia, 6 Wheat. (U. S.) 264, 5 L. Ed. 257; Ableman v. Booth, 21 How. (U. S.) 506, 16 L. Ed. 169.
The question whether an executive officer has, under any circumstances, the right to question the constitutionality of ai act of congress, and to make this decision the basis of acting upon claims to be passed upon by him, was the subject of consideration and extended discussion in the sugar bounty case lately pending before the comptroller of the treasury. It was contended on the one hand that every law must be considered valid un til declared otherwise by the supreme court, and that although the comptroller is an in dependent officer, and not a mere subordi nate of the secretary of the treasury or the president, such an exercise of jurisdiction would be a dangerous usurpation by an ex ecutive officer of judicial authority, which is confided by the constitution exclusively to the courts. On the other hand, it was urged that the constitution is the supreme law, and that an executive officer iS responsible for a wrongful act under an unconstitutional stat ute. It was replied that his responsibility is politidal. The claim was disallowed by the comptroller upon the ground that the act was unconstitutional and the case sent to the court of claims under the authority of U. S. Rev. Stat. § 1065. The act in question had been held unconstitutional, but not by the court of last resort; U. S. v. Carlisle, 5 App. D. C. 138. Subsequently the act was held to be constitutional by the supreme court, but the question of the power of the comptroller was not determined; U. S. v. Realty Co., 163 U. S. 427, 16 Sup. Ct. 1120, 41 L. Ed. 215. This decision of the comp troller and the questions involved have been elaborately discussed by Mr. Black, the writ er on constitutional law, who, after an ex amination of the authorities, reaches the con clusion that the power of an executive offi cer to judge of the constitutionality of a statute (in advance of a determination by the courts) is confined to cases in which it is necessary for the regulation of his own conduct, and that where the rights of others are involved he must enforce the law; 29 Am. L. Rev. 801. See also 11 Op. Atty. Gen.