RELATIONS OF INDEPENDENT DEPARTMENTS. 431 



belligerency or neutrality of the United States, as to the status of 

 foreign governments and their representatives, as to the extent of 

 territory of foreign states, as to the existence of insurgency, civil 

 war or international war abroad, and as to the settlement of claims 

 of American citizens upon foreign governments. In giving effect 

 to such political decisions the court has usually grouped the Pres- 

 ident and Congress together as the " political department of the 

 government " and has not often discussed the relative competence 

 of each in such matters.^* Unquestionably, it might do so, and 

 could properly refuse to follow a political decision of the President 

 if on a subject beyond his competence. Thus in his dissent in the 

 prize cases,-^ Justice Nelson, supported by three colleagues, was 

 unwilling to accept the President's proclamation of blockade as the 

 initiation of civil war, holding that the power to declare the existence 

 of war, even civil war, was confined to Congress. The majority, 

 however, thought themselves bound by the political decision of the 

 President. The courts also consider themselves bound to apply 

 executive orders of the President, if made under legal authority, 

 in the same manner as acts of Congress."*' 



On the other hand, if acts of the President require for their 

 carrying out cooperation by Congress or by the treaty-making 

 power, the obligation of these organs is founded not upon law but 

 upon a constitutional understanding. The President may make 

 executive agreements which require action by Congress. Such was 

 that by which Great Britain ceded Reef Island in Lake Erie on 

 condition that the United States would erect a lighthouse thereon ; 

 that providing for the administration of San Domingan customs 

 houses ; and that providing for reciprocity with Canada. So also 

 the President may make agreements requiring action by the treaty- 

 making power. Such were the preliminaries of peace with Spain 

 in 1898 and with Germany in 1918. Such also were protocols with 

 Costa Rica and Nicaragua looking toward the conclusion of treaties 

 providing for the construction of a Trans-Isthmian Canal. 



2* Supra, sec. 107. 



25 The Prize Cases, 2 Black 635, 690. 



26 Goodnow, op. cit., p. 85. 



