guarantees may, for the time being, be suspended; but, as we have already learned in the preceding chapter, actual public necessity, and this alone, will furnish legal justification for this.

The existence of civil war operates as regards the enemy ipso facto, that is, without formal declaration, as a suspension of the privilege of the writ of habeas corpus, together with, as said, the suspension of the other guarantees to the individual against arbitrary executive action. In the preceding chapter the principle was sustained that the establishment of martial law may properly take place not only upon the theatre of active hostilities, but elsewhere when the actual necessities of the case demand it.

The suspension of the privilege of the writ of habeas corpus falls short of the establishment of martial law, but to justify it there is required the same public necessity as that required for the enforcement of martial law. The same reasoning, therefore, that was employed with reference to this latter subject is applicable to the question of the suspension of the writ of habeas corpus, and need not here be repeated.

Power of the President to suspend the writ

In Ex parte Bollman 12 the Supreme Court in its opinion took for granted that the power of suspension lay with Congress, and the same view was held by Story in his Commentaries. 13

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 AttorneyGeneral, declared that the power lay with him, and by various proclamations authorized the suspension of the

12 4 Cr. 75; 2 L. ed. 554.

13 § 1336.

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.

3 Kilbourn v. Thompson, 103 U. S. 168; 26 L. ed. 377.