writ in places both within and without the area of active hostilities. The rightfulness of this assumption of power by the President was severely criticised notwithstanding the arguments of the Attorney-General and of the eminent jurist Horace Binney. This criticism was judicially expressed by Chief Justice Taney in a protest which he filed. in the case of Ex parte Merryman.14 In that case obedience to a writ which he had issued being refused by a military officer of the United States, acting under the authority of the President, Taney recognized his inability to compel its execution and filed a protesting opinion in the course of which, after calling attention to the fact that the constitutional provision providing for the suspension of the writ is found in the article which is devoted to the legislative department and is, therefore, to be presumed to relate to the powers of Congress, he said: "The only power, therefore, which the President possesses, where the 'life, liberty or property' of a citizen are concerned, is the power and duty prescribed in the third section of the second article, which requires 'that he shall take care that the laws are faithfully executed.' He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the Constitution. It is thus made his duty to come to the aid of the judicial authority if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm. But in exercising this power he acts in subordination to judicial authority, assisting it to execute the process and enforce its judgments." 14 Taney's Reports, 246. "With such provision in the Constitution, expressed in language too clear to be misunderstood by any one, said Taney, "I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus or arrest a citizen except in aid of the judicial power." That Taney's reasoning is correct there would now seem to be little question. The point has never since been squarely passed upon by the courts, but in 1863 Congress considered it necessary specifically to authorize the President to suspend the writ, and commentators now agree that the power to suspend or authorize the suspension lies entirely in Congress.15 15 Cf. Winthrop, Military Law, and Tucker, Constitution of United States, II, pp. 642-652. CHAPTER LIII THE SEPARATION OF POWERS The separation of powers A fundamental principle of American constitutional jurisprudence, accepted alike in the public law of the Federal Government and of the States, is that, so far as the requirements of efficient administration will permit, the exercise of the executive, legislative and judicial powers is to be vested in separate and independent organs of government. The value of this principle or practice in protecting the governed from arbitrary and oppressive acts on the part of those in political authority, has never been questioned since the time of autocratic royal rule in England. That the doctrine should govern the new constitutional system established in 1789 was not doubted. Separation of powers in the States not compelled by the Federal Constitution It is to be observed that this general acceptance by the States of the principle of the separation of powers is not one forced upon them by Federal law,1 except in so far as the prohibition of the Fourteenth Amendment with reference to the depriving any person of life, liberty or property without due process of law is operative, or possibly, in extreme cases, where it might be held that the government is not republican in form. Nor, as we shall later see, do the distributing clauses in the State constitutions operate to prevent the consolidation of judicial, Calder v. Bull, 3 Dall. 386; 1 L. ed. 648. executive and legislative powers in local governmental organs.2 Powers separated in the Federal Government The Federal Constitution does not contain a specific distributing clause, but its equivalent is found in the clauses which provide that "all legislative power herein granted shall be vested in a Congress of the United States," that "the executive power shall be vested in a President of the United States of America," and that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." These provisions, interpreted in the light of the accepted doctrines that each and all of the Federal organs of government possess only those powers granted them by the Constitution, and that the powers not granted may not by them be delegated to other and different organs, have, from the beginning, been held to secure what the specific distributing clauses in the State constitutions are designed to provide.3 To preserve the separation of powers and to render government efficient for the protection of civil liberty, the framers of our Federal and State constitutions saw that it was necessary not simply to create separate depositaries for the three powers, but to provide efficient means for preventing, if possible, the control by one department of the other departments. With this end in the view, the executive, legislative and judicial establishments are made as independent as possible of one another. Thus the legislatures are made the sole judges. as to the constitutional qualifications of those claiming 2 Goodnow, American Administrative Law, p. 35. membership, they have the power of disciplining and expelling members, their members are in general not liable to arrest except for felony, treason, or breach of the peace, and they may not be held responsible in actions of slander or libel for words spoken or printed by them as members. The independence of the courts is in general secured by tenures of office, and official compensation free from legislative control, and, furthermore, they have the great power of declining to recognize as valid all laws or executive acts which they hold to be unconstitutional or otherwise illegal. The executive has, of course, within his own hands, the material force of the State, and within the limits of the discretion placed by law in his hands, may not be held legally responsible in the courts for his acts. Separation of powers not complete While, as has been said, the principle of the separation of the powers has generally been accepted as binding in our systems of constitutional jurisprudence-State and national-the practical necessities of efficient government have prevented its complete application. It has from the beginning been necessary to vest in each of the three departments of government certain powers, which, in their essential nature, would not belong to it. Thus, to mention only a few of the more evident examples, the courts have been given the essentially legislative power to establish rules of practice and procedure, and the executive power to appoint certain officials-sheriffs, criers, bailiffs, clerks, etc., the executive has been granted the legislative veto power, and the judicial right of pardoning; the legislature has been given the judicial powers of impeachment, and of judging of the qualifications of its own members, and the Senate, the essentially executive power of participating in the appointment of civil officials. |