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struction. The construction of treaties is the peculiar province of the judiciary, and, except in cases purely political, Congress has no Constitutional power to determine the rights under a treaty. The jurisdiction of the United States courts under this clause is entirely regardless of the character of citizenship of the parties to the suit.35

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§ 198. Political questions.-The courts of the United States have no authority to inquire into political matters, but must follow the decision of the executive department thereon; this includes the question whether the Government is justified in disregarding its engagements with another nation, and the decision as to the public character of one claiming to be a foreign minister.3s The recognition of foreign states is a political question, to be decided by the executive department;39 as is also the question as to the boundaries of a foreign country, or as to its authority over certain territory, and the question as to what is the lawful government of a foreign country,*1 or of one of the States of the Union.42 But the decision as to the boundaries between two States of the Union belongs to the judicial department.43

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A bill to restrain the Secretary of War of the United States, and the generals acting under him, from carrying into execution

34 Jones v. Meehan, 175 U. S. 35 Cohens v. Virginia, 6 Wheaton, 264, 383.

36 Luther v. Borden, 7 Howard, 1; Marbury v. Madison, 1 Cranch, 137, 169; Foster v. Neilson, 2 Peters, 253, 307; United States v. Lee, 106 U. S. 176, 209; Craig v. Missouri, 4 Peters, 410; Cherokee Nation v. Georgia, 5 Peters, 1; United States v. Holiday, 3 Wallace, 407, 419; Georgia v. Stanton, 6 Wallace, 50, 71.

37 The Chinese Exclusion Case, 130 U. S. 591, 602.

35 In re Baiz, 135 U. S. 403, 432. Rose v. Hinely, 4 Cranch, 241, 272; Gelston v. Hoyt, 3 Wheaton,

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certain acts of Congress, and claiming that such execution would subvert State governments, raises a political question whose decision is without the power of the United States courts.**

$199. Cases affecting ambassadors, other public ministers and consuls. These words, as used in the Constitution, apply to, and are descriptive of, a class existing by the laws of nations and apply to diplomatic agents, whether accredited by the United States to a foreign country or by a foreign country to the United States.45

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The jurisdiction of the United States court is exclusive in all cases affecting ambassadors, other public ministers and consuls, except in the case of a few offenses enumerated in the judiciary act over which jurisdiction is allowed to the State courts. An indictment for infringing the law of nations, by offering violence to a foreign minister, is not a case affecting ambassadors, other public ministers or consuls.*7

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§ 200. Admiralty and maritime jurisdiction.-The admiralty courts were of early origin in England, existing probably as early as the reign of Richard 1,48 and certainly as early as that of Edward I. "The forms of its proceedings were borrowed from the civil law; and the rules by which it was governed were, as it everywhere avowed, the ancient laws, customs and usages of the seas. In fact, there can scarcely be the slightest doubt that the admiralty of England and the maritime courts of all the other powers of Europe were formed upon one and the same common model; and that their jurisdiction included the same

50.

"Georgia v. Stanton, 6 Wallace,

In re Baiz, 135 U. S. 403.

46 Davis v. Packard, 7 Peters, 276.

"United States v. Ortega, 11 Wheaton, 467.

There is a strong probability of its existence in the reign of Richard the First, since the laws of Oleron, which were compiled and promulgated by him on his re

turn from the Holy Land, have always been deemed the laws of the admiralty, and could not have been fully enforced in any other court. (Selden De Dom. Maris, lib. 2, cap. 24; Godolphin on Admiralty Jurisdiction, 143)." Judge story in Lovio v. Boit, 2 Gall. (U. S.) 398.

49 Amer. and Eng. Ency. of Law, 2nd Ed., Vol. I., p. 645; Co. Litt., 11 C., 260 b, Zouch on Admiralty Jurisdiction, 114.

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The

subjects as the Consular courts of the Mediterranean."50 Common Law judges viewed the jurisdiction of these courts with the same jealousy which they manifested towards the Courts of Chancery, and gradually succeeded in confining it within very narrow limits. At the time of the adoption of the United States Constitution, Admiralty Courts in England had jurisdiction in the following classes of cases only: Suits to enforce judgments of foreign courts of admiralty, where the person or the goods were within the reach of the court; mariners' wages, where the contract was not under seal, and was made in the usual form; bottomry, in certain cases and under many restrictions; salvage, where the property was not cast on shore; cases between part owners disputing about the employment of the ship; collisions and injuries to property or persons on the high seas; droits of the admiralty. The jurisdiction both of the Colonial Admiralty courts in this country before the Revolutionary War, and of the State Admiralty courts thereafter was much more extensive. After the adoption of the United States Constitution the contention was made that the jurisdiction granted to the United States courts by the clause "to all cases of admiralty and maritime jurisdiction," gave to these courts jurisdiction only in those cases included within the jurisdiction of the English Admiralty courts. This question came before the Supreme court in Waring et al. v. Clarke,53 where it was decided that the admiralty jurisdiction of the United States courts is neither to be limited to nor to be interpreted by what were cases of admiralty jurisdiction in England at the time of the adoption of the United States Constitution, but included all that was generally included in admiralty jurisdiction in foreign countries and the different States of this Union.54

Under the Judiciary Act of 1789, the courts of the United States have cognizance of all civil cases of admiralty and mari

50 Judge Story in De Lovio v. Boit, 2 Gall. (U. S.) 400.

51 Benedict's Admiralty, 3rd Ed., p. 58.

2 See Benedict's Admiralty, 3rd Ed., Chaps. IX. and X.

535 Howard, 440.

See also the Belfast, 7 Wallace, 636; Atkins v. Disintegrating Co., 18 Wallace, 272, 304; United States v. the New Bedford Bridge, 1 Woodbury & M., 409.

time jurisdiction, exclusive of the State courts, except as to the common-law remedy. That remedy existed before the Constitution and Act of 1789, and is by the latter saved, not given.55 The seventh amendment does not give a right of trial by jury in admiralty cases.56 The admiralty courts possess a general jurisdiction in cases of suit by material men in suits either in personam or in rem. Such jurisdiction is limited, however, to contracts, claims and services which are purely maritime and such as have respect to rights and duties appertaining to navigation.58

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The Supreme Court of the United States has decided that a suit in admiralty cannot be maintained to recover damages for a death occasioned on the high seas either through negligence or by an unlawful act in the absence of Federal or State legislation giving such right of action.59

The admiralty jurisdiction of the United States is not confined to tide waters; it extends to all public bays and lakes over which commerce is carried on between the States or with foreign nations. It also includes all navigable rivers, etc."1

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The courts of the United States have admiralty jurisdiction over cases of collision occurring on the high seas between vessels owned by foreigners of different nationalities.62

The original admiralty jurisdiction of the United States courts has all been given by statute to the District courts.

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§201. Controversies to which the United States is a party.

Rapolje's Notes to U. S. Reports, 5 Howard, p. 441.

Waring et al. v. Clarke, 5 Howard, 440, 459, 460.

57 The General Smith, 4 Wheaton, 438.

5s Edwards v. Elliott, 21 War lace, 532; Morewood v. Enequist, 25 Howard, 491; The Belfast, 7 Wallace, 644.

5 The Harrisburg, 119 U. S. 199; The Alaska, 130 U. S. 201. These cases overruled a number of early decisions in the inferior United States Courts. See the Sea

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Jurisdiction is given to the United States courts in cases where the United States is a party. It is important to note that the word "all" is here omitted before "cases." The effect of its insertion would have been to have given a right of action against the United States in the Federal courts. As the Constitution stands, the Government of the United States is not liable to be sued, except by its own consent.63 By act of Congress suits for money judgments, against the United States, can only be brought in the Court of Claims. This protection to the United States Government does not extend to the protection of officers or agents of the United States. 65 Under this clause the United States Government can bring suit in its own courts against one of the States of the Union.66

§ 202. Controversies between two or more States.-Although this grant is not expressly extended to all controversies between States, still none are excluded, and in custom the United States takes jurisdiction of all. The cases which come under this grant, however, are those in which the States are the real, not the nominal, parties. Where a citizen of one State is the creditor of another State, he cannot assign his claim to his State, so as to enable his State to sue for him in the United States courts.cs

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