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of the second article, which requires that he shall take care that the laws shall be 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.
“With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, 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. He certainly does not faithfully execute the law if he takes upon himself legislative power by suspending the writ of habeas corpus, and the judicial power also by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defense in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted.”
That Taney's reasoning is correct there would now seem to be little question. The point has never been since 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 exclusively in Congress. Winthrop in his Military Law, summing up his review of the subject, says: as a general principle, it may be deemed settled by the rulings of
“ Thus, the courts and weight of legal authority, as well as by the action of Congress and practice of the Executive, that the President is not empowered of his own authority to suspend the writ of habeas corpus, and that a declaration of martial law made by him or a military commander, in a district not within the theatre of war, will not justify such suspension in the absence of the sanction of Congress.” 37
37 See also especially the argument by Tucker in his Constitution of the United States, II, pp. 642–652.
THE SEPARATION OF POWERS.
739. 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 are 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. Washington, in his farewell address, said: The spirit of encroachment tends to consolidate the powers of all governments in one, and thus to create, whatever the form of government, a real despotism.” Madison, in The Federalist, wrote: “ The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." John Adamso wrote: “It is by balancing one of these three powers against the other two that the efforts in human nature toward tyranny can alone be checked and restrained and any degree of freedom , preserved ;” and Hamilton asserted: “I
“I agree that there is no liberty if the powers of judging be not separated from the legislative and executive powers." 3 Webster states the same doctrine when he says: “The separation of the departments [of government] so far as practicable, and the preservation of clear lines between them is the fundamental idea in the creation of all of our constitutions, and doubtless the continuance of regulated liberty depends on maintaining these boundaries.” 4
1 No. 47. 2 Works, I, 186. 3 Federalist, No. 48.
Under the influence of this doctrine most of the States in their first Constitutions incorporated what have since been known as “ distributing clauses.” Thus Massachusetts in her Constitution, adopted in 1780, provided that “in the government of this commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise legislative and judicial powers or either of them; the judicial shall never exercise legislative and executive powers or either of them; to the end that it may be a government of laws and not of men.” Maryland in her first instrument of government declared “ that the legislative, executive and judicial powers of government ought to be forever separate and distinct from each other," and New Hampshire provided that “ the legislative, executive and judiciary powers ought to be kept as separate from and independent of each other as the nature of a free gorernment will admit, or as is consistent with the chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.”
In practically all of the state constitutions which have been adopted since the revolutionary period there have been either distributing clauses similar to those given, or express provision that the legislative shall be vested in the legislature, the judicial in the courts, and the executire in the executive organs therein created. A number of constitutions, however, are careful to state that the principle of absolute separation is not to apply in those cases in which express provision otherwise is made. $ 740. Separation of Powers in the States not Compelled by the
Federal Constitution. It is to be observed that this general acceptance boy the States of the principle of the separation of powers is not one forced upon them by federal law, 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 concerned 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, executive, and legislative powers in local government organs.
4 For these and other quotations see the valuable work of Dr. Bondy, The Separation of Powers.
5 For an early statement of this see Calder v. Bull, 3 Dall. 386; 1 L. ed. 648. 6 Cf. Goodnow, American Administratire Law, p. 35. 7 103 U. S. 168; 26 L. ed. 377.
§ 741. 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. In the case of Kilbourn v. Thompson' the court say: “It is believed to be one of the chief merits of the American system of written constitutional law that all powers intrusted to the government, whether state or national, are divided into the three grand departments, the executive, the legislative and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of that system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of the system that the persons intrusted with power in