In all these cases the courts have held themselves bound by the positions assumed by the executive and legislative departments. When, however, private justiciable rights are involved in a suit, the court has indicated that it will not refuse to assume jurisdiction even though questions of extreme political importance are also necessarily involved.

Thus, as has been set forth in another chapter, treaties entered into by the United States not only bind the United States internationally, but create municipal law for individuals so far as their personal rights and property are concerned. Thus a treaty having been entered into the courts will follow its terms even when, by doing so, it has to go counter to the position previously assumed by the executive department, or, indeed, contended for by the government in the case at bar.

19 3 Wall. 407; 18 L. ed. 182.

20 chap. LIII.

In Ex parte Cooper21 the court, after asserting the principle that it would not pass upon a matter purely political in character, are careful to say:

"We are not to be understood, however, as underrating the weight of the argument that in a case involving private rights, the court may be obliged, if those rights are dependent upon the construction of acts of Congress or of a treaty, and the case turns upon a question, public in its nature, which has not been determined by the political departments in the form of a law specifically settling it, or authorizing the executive to do so, to render judgment, since we have no more right to decline the jurisdiction which is given than to usurp that which is not given."

In the year following that in which this case was decided, the United States entered into a convention with Great Britain providing for an arbitration of the political question (the extent of territorial sovereignty of the United States in the Behring Sea) involved in the Cooper case. An award was made under this convention, and Congress passed an act giving to it full effect. Later a case again coming before a federal circuit court of appeals, that tribunal held itself conclusively bound by the terms of the convention in opposition to the position of the political department at the time of the Cooper case. The opinion declares:

"This question has been settled by the award of the arbitrators, and this settlement must be accepted 'as final.' It follows therefrom that the words 'in the waters thereof,' as used in section 1956, and the words 'dominion of the United States in the waters of Behring Sea,' in the amendment thereto, must be construed to mean the waters within three miles from the shore of Alaska. In coming to this conclusion, this court does not decide the question adversely to the political department of the government. It is undoubtedly true, as has been decided by the 'Supreme Court, that, in pending controversies, doubtful questions which are undecided must be met by the political department of the government. 'They are beyond the sphere of judicial cognizance,' and 'if a wrong has been done, the power of redress is with Congress, not with the judiciary.' The Cherokee Tobacco, 11 Wall. 616; 20 L. ed. 227. But in the present case there is no pending case left undetermined for the political department to decide. It has been settled. The award is to be construed as a treaty which has become final. A treaty when accepted and agreed to becomes the supreme law of the land. . . . The duty of courts is to construe and give effect to the latest expression of the sovereign will; hence it follows that, whatever may have been the contention of the government at the time In re Cooper was decided, it has receded therefrom since the award was rendered, by an agreement to accept the same 'as a full, complete and final settlement of all questions referred to by the arbitrators,' and from the further fact that the government since the rendition of the award has passed 'an act to give effect to the award rendered by the tribunal of arbitration.' " 22

21 143 U. S. 472; 12 Sup. Ct. Rep. 453; 36 L. ed. 232.

Commenting on this case, Judge Baldwin observes: "It will be noted that this result was reached in a suit by the United States in one of their own courts, in which the claim of the government was one of territorial boundary, and yet that court overruled the claim and threw out the suit on the strength of an award made in pursuance of the law of the land. The treaty was the law. This law provided for the award and made it, whichever view should be adopted, final. It was therefore for the court to accept it as final, even against the resistance of the political department of the government, and do justice accordingly." 23