act [granting jurisdiction] in the courts of the United States, it is for the legislature to say so. The question depends on political considerations, on which the Legislature is to decide. Until the legislative will be expressed, this court can only see its duty and must obey the laws."

The correctness of this view does not appear to have been questioned until the early period of the Civil War, when President Lincoln, upon the advice of his Attorney-General, declared that the power lay with him, and by various proclamations authorized the suspension of the writ in places both within and without the area of active hostilities.35

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.36

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 private citizen are concerned, is the power and duty prescribed in the third section

35 For an able argument sustaining this position, see the three pamphlets issued in 1862, 1863, and 1865 by Horace Binney, entitled "The Principles of the Writ of Habeas Corpus" For other discussions see the article by Joel Parker, entitled "Habeas Corpus and Martial Law," in the North American Review, October, 1861; that by S. G. Fisher in the Political Science Quarterly. vol. III, p. 454, entitled "The Suspension of Habeas Corpus during the War of the Rebellion" (criticising Binney); the pamphlet Executive Power," by B. R. Curtis, reprinted in the second volume of his Life, and also in the second volume of Curtis' Constitutional History of the United States (ed. 1896).

36 Taney's Reports, 246.

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 Mili-. tary Law, summing up his review of the subject, says: "Thus,

as a general principle, it may be deemed settled by the rulings of

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.

CHAPTER LXIII.

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,1 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 Adams2 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 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

1 No. 47.

2 Works, I, 186.

3 Federalist, No. 48.

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.'

29 37

37 See also especially the argument by Tucker in his Constitution of the United States, II, pp. 642-652.