264 WRIGHT— POWER TO MEET RESPONSIBILITIES. 



international law giving a decision thereon, always attempting, but 

 sometimes without complete success, to avoid decision on questions 

 of policy. Thus the Supreme Court decided upon the status of 

 Pine Island near Cuba and upon the status of Cuban insurgents in 

 1896 on the basis of international law, generally known facts and 

 various rather indefinite statements in executive proclamations and 

 correspondence. '^° Very often international law is utilized by the 

 courts to buttress opinions founded primarily on decisions by the 

 political organs of government. Thus the Supreme Court not only 

 held that the United States had taken possession of the island of 

 Navassa by executive proclamation under an act of Congress but that 

 under international law it was entitled to do so on the principle of dis- 

 covery and occupation. '^^ Where international questions, even if of 

 political significance, are susceptible of exact determination by appli- 

 cation of international law the courts do not hesitate to settle them. 

 Prize cases are of this kind, so also are cases involving the im- 

 munities of sovereigns, diplomatic officers and public vessels. '- 



It seems that far from encroaching upon powers of the political 

 departments of government the courts have if anything been over- 

 cautious. It would seem that a decision founded squarely upon 

 international law might well have been given in the first Behring 

 Sea cases, and had such been done the United States might have 

 avoided the expense of a protracted litigation and arbitration where 

 from the first there was no reasonable legal defense. An act of 

 1868^^ had forbidden the killing of "otter, mink, marten, or fur- 

 seal, or other fur-bearing animal, within the limits of Alaska terri- 

 tory, or in the waters thereof." The Treasury Department in enforc- 

 ing this provision acted upon a claim asserted by Russia in 1821 to 



■'■0 Pearcy v. Stranahan, 205 U. S. 257 (1907); The Three Friends, 116 

 U. S. I. 



^1 Jones V. U. S., 137 U. S. 202, 212. The British court of Queens Bench 

 (Mighell V. Sultan of Jhore, 1894, i Q. B. 149, 158), however, thought the 

 opinion of the appropriate political department incapable of examination and 

 questioned the course pursued by Sir Robert Phillimore in the Charkieh 

 (L. R. 4 A. and E., 59, 1873), in examining the history of Egypt since A. D. 

 638 to determine its status. See A. D. McNair, Judicial Recognition of States 

 and Governments, British Year Book of International Law, 2 : 57. 66. 



■^2 Supra, sec. 106. 



73 Act June 17, 1868, Rev. Stat., sec. 1856. 



