cases in which impeachment is the proper LECTURE VII. method of procedure is also separately consid- Its appellate ered under its appropriate head.

The third and last section of Article III is devoted to defining what is treason, and pointing out certain restrictions upon the power of the courts to convict of that offence. Congress is given the power to declare what punishment shall be meted out to the offender, "but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." This subject will also be more appropriately considered in connection with others of the same general character.

jurisdiction.

partment of the

It will thus be seen that the Constitution of The courts are the United States has created a judicial depart- the judicial dement of this Government as one of its three Government. great branches, to which it has exclusively delegated all judicial power,' with the exception of the trial of impeachments. It prescribes with wonderful clearness the classes and kinds of suits which may be brought before it; it defines the persons who are privileged to sue, either in its highest forum or in its lower grades, and marks out the method in which trials are to be had.

To this department is confided the judicial power of the Government. It is perhaps true

1 In cases arising during the reconstruction period, the extent and essential character of the judicial power, and its relation to the legislative and executive functions of the Government, were discussed at length. Georgia v. Stanton, 6 Wall. 50; United States v. Lee, 106 U. S. 196.

2 The judicial power of the United States, considered with ref

The courts are

the judicial de

Government.

Definition of " dicial power."

'ju

LECTURE VII. that the lines which separate the legislative and the judicial power are sometimes not very clearly partment of the defined, but they are becoming more and more So. That is a judicial power which, in a controversy, decides the right to property between citizens or proper parties. Such a determination is not a legislative power. If a legislature, or at least such a body acting within the dominion of the Government of the United States, should undertake to declare that certain property which belonged to A should become the property of B, it would be an invasion of the judicial function, and therefore wholly inoperative and void.1 No court would hesitate to declare that such a determination was within the province of the courts alone; that the legislature could not effect it, because of this separation of the judicial and legislative powers which is made by the Constitution.2

erence to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human governments have exhibited. Curtis' Constitution.

1 There is nothing in the Constitution of the United States which forbids the legislature of a State to exercise judicial functions. Satterlee v. Matthewson, 2 Pet. 413. A legislature cannot, however, declare what the law was, but what it shall be. Ogden v. Blackledge, 2 Cranch, 272.

A resolution by the legislature of Tennessee, that a criminal should be discharged by a court, was held to be an unwarranted assumption of power on the part of the legislature, and void. State v. Fleming, 7 Humphreys, 152.

The legislature cannot grant a new trial, or direct the court to order it. De Chastellux v. Fairchild, 15 Penn. St. 18.

2 The power vested in the American courts of justice of pronouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies. De Tocqueville, Dem. in America, vol. 1, p. 83 (ed. N. Y.) 1838.

It is true that the Executive may, under cer- LECTURE VII. tain circumstances, invade the personal rights of Habeas corpus. the individual, as regards his liberty. It has been done in cases of emergency; it may be done again. The privilege of the writ of habeas corpus may be suspended, when, in cases of rebellion or invasion, the public safety may require it. The President, or the executive officers, may order a man into imprisonment, provided the necessity of the case warrants such action. But in all these cases they are bound to be careful to exercise their power within the law.1

The highest judicial power in England is subordinate to the legislative power, and bound to obey any law that Parliament may pass, although it may, in the opinion of the court, be in conflict with the principles of Magna Charta or the Petition of Rights. Taney, C. J., in Gordon v. United States, 117 U. S. 699.

But in the United States, if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. In such case it will be the duty of the court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both legislators and judges are to proceed. Vanhorn's Lessees v. Dorrance, 2 Dall. 304.

1 The provisions in the constitutions and laws of the various States by which the right to the writ of habeas corpus has been secured to the people, incorporated the substance of the famous act of 31 Car. II, c. 2, which has frequently been termed the second Magna Charta of Great Britain. The right to suspend this writ in the United States is expressly confined to cases of rebellion or invasion, where the public safety may require it. Mr. Jefferson was opposed to the suspension in any case whatever of the "eternal and unremitting force of the habeas corpus laws."

This subject was earnestly debated during the late civil war, but very few cases were ever brought to the attention of the courts. Perhaps the most important was Ex parte Merryman, Taney's, C. Ct., Decisions, 246. Merryman was arrested May 26, 1861, in the State of Maryland by a military force acting under the orders of General Cadwallader and confined in Fort McHenry. Chief Justice Taney, sitting at chambers, issued a writ of habeas corpus,

LECTURE VII.

Habeas corpus.

Whenever they act arbitrarily, and thus infringe the rights of any man by creating a law for themselves, in violation of the restrictions which both the Constitution and the laws have thrown around private rights, they invade the judicial functions and powers of the United States, and the courts will set that man at liberty, if their mandates are observed.1

but the officer to whom it was directed refused to produce the petitioner on the ground that he had been arrested for treason, and that the President of the United States had suspended the writ for the public safety. Chief Justice Taney simply filed his opinion, holding the petitioner entitled to be set at liberty, on the ground that Congress was the only power that could authorize a suspension of the privilege of the writ, and issued an attachment which the officers in charge of the fort would not permit to be served.

It was with the tacit consent or permission of Congress that the power was exercised during the rebellion by the President to suspend the action of this writ. March 3, 1863, Congress, however, determined to definitely regulate the matter, and passed an act which, among other things, gave the President the right, during the existing rebellion, to suspend the writ, whenever in his judgment the public safety might require it. 12 Stat. 755.

1 The constitutional provision that no person shall be deprived of life, liberty or property without due process of law, nor private property be taken for public use without just compensation, relates to those rights whose protection is peculiarly within the province of the judicial branch of the Government. See examination of cases, showing that the courts extend protection when the rights of property are unlawfully invaded by public officers. United States v. Lee, 106 U. S. 196.

NOTES UPON LECTURE VII.

FOLLOWING the example set by Mr. Justice LECTURE VII. Miller in this lecture, I will first consider some general subjects, applicable alike to all cases arising under any grant of judicial power, and then consider each grant separately, so far as may be advisable after the full treatment of these subjects in the lecture.

1. Courts are created for Judicial Purposes only.

duties upon the

The purpose of the framers of the Constitu- Attempts to imtion to divide the powers of the Government pose non-judicial into three branches, executive, legislative, and courts. judicial, might have been frustrated, so far as the judiciary were concerned, but for its power to protect itself by pronouncing any law imposing other duties upon it, to be an infringement of its constitutional rights.

As early as 1792 Congress made such an attempt. The Judiciary Act of 1789 had gone into effect, the districts and circuits had been created, the judges had been appointed, and the new courts found themselves with little to do. On the 23d of March, 1792, Congress enacted a law "to provide for the settlement of the claims of widows and orphans barred by the limitations