ment. These features, they say, distinguish the act in question from the legislative precedents, none of which, excepting the Non-Intercourse Acts, had undergone review by the Supreme Court, or been sustained by its decision, and which, if really precedents, could not avail as authority against a clear and undoubted principle of the Constitution.'

If dire necessity should ever require it, the precedents of our Civil War will probably be adduced as authority for the proposition that the war power of the President includes the power to assume the functions of all three departments. Once, at least, the state regarded the President as justified in breaking the Constitution in order to preserve it. By virtue of his war powers, President Lincoln by his Emancipation Proclamations2 of 1862 and 1863 established a law as effectively as any ever passed by a legislature.3 By his proclamation suspending the writ of habeas corpus without any previous legislative sanction, he assumed powers legislative and judicial.+

Although the courts have indicated that the President has no authority to suspend the writ of habeas corpus, except when and as authorized by Congress, because its suspension involves the exercise of legislative power, they upheld the action of the President in suspending the writ by a proclamation in pursuance of a statutes which, during the late Civil War, did

1 Field vs. Clark, 143 U. S. 649.

2 The executive's power to issue proclamations admonishing citizens of their own duties and responsibilities as an incidental power, though formerly questioned, is now firmly established. Story's Com. on the Const., vol. 2, p. 387.

3 Shaback vs. Cushman, 12 Fla. 472; Dorris vs. Grace, 24 Ark. 326; Morgan vs. Nelson, 43 Ala. 586; Hall vs. Keen, 31 Tex. 504.

"The Constitution of the United States in Civil War," Political Science Quarterly, vol. i, p. 163. "The Suspension of the Habeas Corpus during the War of the Rebellion," Political Science Quarterly, vol. iii, p. 345. See Ex parte Merryman, Taney's Decisions; McCall vs. McDowell, 1 Abb. (U. S.) 212; Ex parte Field, 5 Blatch. (U. S. Cir.) 63; In re Kemp, 16 Wis. 539; Griffin vs. Wilcox, 21 Ind. 370.

5 13 St. at Large, 730.

not declare a general suspension of the writ, but empowered the President to exercise his judgment and supersede it in particular cases as he might deem the public interest required.1

Many executive war measures, legislative in their nature, were sustained by the courts. The president's order authorizing the arrest wherever found within the jurisdiction of the United States, of persons absenting themselves to avoid being drafted, was declared to be a legal and valid order.2

In time of war, if portions of hostile territory are in military occupation, the President, as commander-in-chief, may appoint provisional courts for the determination of controversies within such territory.3

Nor was the appointment by the President of provisional governors over the commonwealths in revolt, until in pursuance of acts of Congress their governments could be reconstructed, the exercise of unconstitutional powers.

1 McCall vs. McDowell, 1 Abb. (U. S.) 212. See Ex parte Field, 5 Blatch. 63. Allen vs. Colby, 47 N. H. 544. See Jones vs. Seward, 40 Barb. 563. Jackson vs. Montgomery, 13 How. 498; The Grapeshot, 9 Wall. 129. See Edwards vs. Tanneret, 12 Wall. 446; Mechanics' Bk. vs. Union Bk., 22 Wall. 276. See Texas vs. White, 7 Wall. 730.

PART V

THE EXECUTIVE AND THE COURTS

CHAPTER XIX

EXECUTIVE IMMUNITY FROM JUDICIAL CONTROL

THE questions which arise for consideration under this branch of the subject are not questions involving the direct assumption by one of the departments of power vested in the others, but rather questions concerning the indirect control by one of these departments of powers exercised by the others.

Notwithstanding that the logical application of the principle of the independence of the departments would require that the acts and persons of each department should be free from the interference and control of any other department, in practice there is a great conflict as to whether theory should not under particular circumstances give way to justice.

In some jurisdictions the courts, in bold defiance of theory, do not scruple to issue the writ of mandamus against the chief executive officer of the commonwealth to compel the performance of executitive duties. Although it is universally conceded that the writ will never issue to control the governor's discretionary powers, yet his ministerial duties, upon whose performance individual rights may depend, have sometimes been held amenable to the compulsory process of the courts, irrespective of the fact whether such ministerial powers were conferred by statute or the constitution. If in addition to his

1 State vs. Governor, 5 Ohio St. 528; Cotten vs. Governor, 7 Jones (N. C.) 545; contra, Chamberlain vs. Sibley, 4 Minn. 309; R. R Co. vs. Moore, 36 Ala.

283]

151

executive powers, or among his executive powers, the constitution devolves upon the governor ministerial duties, such as the issuing of commissions to persons whose election has been duly certified, a mandamus will lie against him to compel the performance of such duties.'

Some courts declare it difficult to understand how a duty can be any less ministerial, or can be endowed with a political nature, merely by requiring it to be performed by the governor instead of some inferior officer, or why, if it is competent for the legislature to impose upon the governor a ministerial duty, he should not be held responsible for its due execution, and be regarded quoad hoc not as an executive, but as a ministerial officer.2

These decisions are frequently based upon a dictum of Chief Justice Marshall in Marbury vs. Madison,3 to the effect that it is not by the office of the person to whom the writ is directed, but by the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined. On the ground that the acts are ministerial, the courts have issued a mandamus to compel the governor to sign a patent, to canvass a vote,5 to issue a bond and mortgage, and to issue a warrant upon the custodian of a fund loaned to a railroad company by legislative authority.7

Although the courts may compel the governor to authenticate a bill which has become law because not vetoed or returned within a specified time, yet they may not compel him to sign a bill, because this is a discretionary act.9

What would happen if the executive should deny the juris

1 Magruder vs. Governor, 25 Md. 173.

Middleton vs. Governor, 30 Cal. 596.

1 Cranch, 170.

Middleton vs. Governor, 30 Cal. 596.

5 Chumasero vs. Potts, 2 Mont. 242.

State vs. Warmouth, 22 La. Ann. 1; People vs. Bissell, 19 Ill. 229.

TR. R. Co. vs. Moore, 36 Ala. 371.

8 Harpending vs. Knight, 39 Cal. 189.

Hatch vs. Stoneman, 66 Cal. 632.

diction of the courts to issue the mandamus against him, these cases leave unanswered. It is very doubtful whether the chief executive would be inclined to enforce against himself punishment for contempt of court, which would be the only conceivable remedy for the courts in such a case.

On the other hand, a greater weight of authority withholds from the courts the right of controlling or in any manner interfering with the powers or acts of the chief executive. The decisions to this effect stand upon a more logical if not a more just foundation. All duties imposed upon the governor, whether by statute or the constitution, they regard as executive and beyond the the control of the courts, even if the same power, if exercised by any other officer, could be controlled by the courts. While he continues in the exercise of his office, the governor is answerable for his official misconduct only to the legislature through its power of impeachment. The effect of such a judicial remedy would be to deprive the people of the commonwealth of one of the departments of government. The courts have no power to compel either of the other departments of government to perform its duties, any more than either of those departments can compel the courts to perform their duties. Courts have no means and no power to avoid the effects of non-action by the legislature or the executive. If by a treaty, for instance, a sum of money is to be paid to a foreign nation, it becomes the duty of Congress to make the necessary appropriation, but in the nature of things this is a duty the performance of which cannot be coerced. This subject underwent much discussion at the time of the treaty of 1794, known as Jay's Treaty, at the time of the purchase of Alaska, and in the case of the award in favor of England by the Halifax Commission.

1 Hawkins vs. Governor, I Ark. 570.

2 Low vs. Towns, 8 Ga. 360; Dennet vs. Governor, 32 Me. 508.

Myers vs. English, 9 Cal. 341.