that the Senate was made such an important element in treatymaking." This function the Senate has recognized, and, especially in the period before the Civil War, has frequently exercised a veto upon treaties thought to violate states' rights, or redrafted them so as to permit of state consent before the treaty became effective within its territory.100 The practice of the Senate, the opinions of statesmen and dicta of the courts indicate that, except for the most cogent reasons, the treaty power ought to exercise its powers in such way as not to interfere with the control by the states of their own land, natural resources, and public services and not to interfere unnecessarily with the enforcement by the state of its own policy with reference to the protection of public safety, health, morals and economic welfare.

51. Effect upon Power to Make Decisions upon National Policy.

States' Rights have not interfered with the making and carrying out of national decisions. Such decisions as the declaration of war, recognition of foreign states and governments, annexation of territory, etc., being of external application, have never been alleged to conflict with states' rights, unless the protests of the Hartford Convention against the War of 1812 be so considered.101 The exercise of war powers, has conflicted with alleged states' reserved powers. Thus the drafting of armies was attacked as an impairment of the states' reserved power over its militia." Though the

102

99 Ralston Hayden, The States' Rights Doctrine and the Treaty Making Power, Am. Hist. Rev., 22: 56; Corwin, National Supremacy, 141, 302. The fathers seem to have considered the Senate a special bulwark of states' rights, Farrand, op. cit., 2: 393; The Federalist, No. 64 (Jay), Ford ed., P. 432; Elliot, Debates, 4: 137.

100 Hayden, op. cit., Am. Hist. Rev., 22: 56. For example see supra, note 79.

101 See proposed amendment to the Constitution requiring two-thirds vote of both houses to declare war, MacDonald, Select Documents in American History, N. Y., 1898, p. 206.

102 Constitution, Art. I, sec. 8, cl. 15, 16. The national government can call forth the militia, as such, only "to execute the laws of the Union, suppress insurrections and repel invasions,” which does not permit of use outside the territory (Wickersham, Att. Gen., 29 Op. 322), but under present law the militia are not used as such but are reenlisted in the national army when called out for national service. (Act June 3, 1916, 39 stat. 200, 211, secs. 70, 71, 73, III.) The power to raise armies (Constitution, I, sec. 8,

contention at first received some judicial support in Civil War cases,103 it was thoroughly demolished during the World War.104

Apparently the only legal limitation upon the exercise of powers in foreign relations imposed by states' rights is that upon the power to cede state territory by treaty, which is acknowledged to evaporate before necessity.

CHAPTER VII.

LIMITATIONS UPON NATIONAL POWERS: THE SEPARATION OF

52. Nature of the Theory.

POWERS.

The doctrine of separation of powers means that the legislative, executive, and judicial powers of government ought to be exercised by separate and independent departments.

"It is also essential," says the Supreme Court, "to the successful working of the system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no others."1 The doctrine is implied by three clauses of the Constitution:

"All legislative power herein granted shall be vested in a Congress of the United States." (Art. I, sec. 1.)

"The executive power shall be vested in a President of the United States of America." (Art. II, sec. 1.)

"The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." (Art. III, sec. 1.)

cl. 12) is wholly distinct from the power over the militia and is not limited by the state's right to its militia. (Selective Draft Cases, 245 U. S. 366.) See Wright, Military Administration, Report of Efficiency and Economy Committee of Illinois, 1915, p. 903.

103 Kneedler v. Lane, 45 Pa. 238 (1863), Thayer, Cases on Constitutional Law, p. 2316. Lowrie, J., supported by Justices Woodward and Thompson, with Justices Strong and Read in dissent, granted a preliminary injunction on November 9, 1863. On December 12, 1863, Justice Lowrie's term expired. He was succeeded by Justice Agnew, who sided with the two former dissenting justices, thus making Justice Strong's opinion dissolving the injunction the opinion of the court.

104 Selective Draft Cases, 245 U. S. 366; Sutherland, op. cit., p. 108.

1 Kilbourn v. Thompson, 103 U. S. 168. On impossibility of so defining the functions of the departments as to make an actually complete separation, see Goodnow, The Principles of the Administrative Law of U. S., N. Y., 1905, p. 26, and Willoughby, op. cit., p. 1262.

It will be noticed that the Congress is vested merely with "all legislative powers herein granted" while the President and the courts are vested respectively with "the executive power" and "the judicial power of the United States." The mere fact that a power is legislative in character does not, therefore, indicate its possession by Congress unless it is specifically granted to that body elsewhere in the Constitution. It has been urged, however, that all powers by nature executive belong inherently to the President2 and all powers by nature judicial to the courts. Doubtless certain inherent executive and judicial powers and privileges, necessary for the functioning of the organ, and for the preservation of its independence, such as the executive power to remove officials* and the judicial power to punish for contempts, exist aside from express delegation, but so also do inherent legislative powers, such as the power to subpoena witnesses necessary to give information. essential to intelligent legislation. The general vesting of executive and judicial power cannot, therefore, be made the basis of powers other than essentially inherent power. To do so would render the subsequent express delegations of power to the President and the courts useless verbiage. Expressis unius exclusis alteris applies to the executive and judicial powers as well as the legislative."

Aside, therefore, from its assurance of certain necessary and inherent powers to each department, the theory of separation of

66

2 Hamilton, Pacificus' " Letter, June 29, 1793, and Roosevelt, Autobiography, pp. 388-389, quoted, Corwin, The President's Control of Foreign Relations, pp. 11, 168. See also infra, sec. 92.

3 Kansas v. Colorado, 206 U. S. 46, 81-83, Corwin, op. cit., p. 31.

4 Parsons v. U. S., 167 U. S. 324; Willoughby, op. cit., pp. 1181-1184, and Congressional debate of 1789 on the question there cited. Infra, sec. 230. The removal power is not, however, regarded as an inherent executive power in the states. Goodnow, op. cit., p. 311.

In re Debs, 158 U. S. 595; Carter v. Va., 96 Va. 791; Willoughby, op. cit., pp. 1268-1270; J. P. Hall, Constitutional Law, p. 19.

• Anderson v. Dunn, 6 Wheat. 204; Kilbourn v. Thompson, 103 U. S. 168; In re Chapman, 166 U. S. 661; Willoughby, op. cit., p. 1272.

7 See Taft, Our Chief Magistrate, pp. 73, 140, 144; Senate debate of

1831 quoted Corwin, op. cit., p. 59; and infra, sec. 92.

power is a limitation rather than a source of power for each department. We may express the doctrine in three principles.8

53. Protection of Independence of Departments.

Each department is endowed with such rights, privileges and inherent powers as will assure its independence of the others. Thus members of Congress are immune from arrest during the session, each house is given exclusive authority to judge the qualifications of its own members, to make its own rules of procedure, to discipline and expel its own members and to subpoena witness and commit for contempt when necessary for performing its legislative functions.10 The President is immune from judicial process except trial of impeachment and holds himself entitled to exclusive control of the personnel of the national civil and military service through the power to commission and remove officials." The Federal Justices are assured permanence of tenure and compensation and the courts hold themselves to enjoy certain inherent privileges such as the power to commit for contempt and perhaps to control admissions to the bar and rules of practice.12 These rights, privileges and inherent powers cannot be impaired by action of the organ itself or by that of other organs.

54. Protection of Delegated Powers of Departments.

Each department is entitled to exercise the powers delegated to it by the Constitution. Two interpretations of this guarantee of quite divergent effect must be distinguished. Thus it is generally recognized that one organ cannot, unless the Constitution expressly provides otherwise, take away a power specifically or impliedly 8 Infra, secs. 53-55.

Goodnow, op. cit., p. 38.

10 Constitution, I, secs. 5, 6, and supra, note 6.

11 Mississippi v. Johnson, 4 Wall. 475; Willoughby, op. cit., 1300-1304; Constitution, II, sec. 3, and supra, note 4.

12 Constitution, III, sec. 1, supra, note 5. Illinois and Pennsylvania hold the setting of standards for admission to the bar is an inherent judicial power (In re Day, 181 III, 73, In re Splane, 123 Pa. 527), while New York and North Carolina hold the contrary (Matter of Cooper, 22 N. Y. 67, Re applicants for license, 143 N. C. 1). Indiana holds that statutes cannot lower the standard set by court rules of procedure. (Epstein v. State, 128 N. F. 353, Ind. 1920, and note in Minn. Law Rev., 5: 73, Dec., 1920.)

delegated to another organ or give away a power so delegated to itself.13 But it is sometimes contended, that in addition, one organ cannot so exercise its own powers as to limit the discretion of another organ or of itself in the future exercise of its powers. These two interpretations are very different and much misconception has arisen from their confusion. Thus for the treaty power to provide that in defined circumstances the United States would automatically be at war, would be a clear invasion of the power of Congress to declare war. On the other hand for the treaty power to provide that in defined circumstances the United States would declare war, would not invade the power of Congress but would merely limit its discretion in the future exercise of this power. In certain circumstances the practical effect might be the same, but the legal difference would nevertheless exist. It appears that constitutional law merely guarantees to each organ continued possession of its delegated powers. The degree of discretion which the organ may actually enjoy in exercising these powers depends largely upon constitutional understandings.

55. Prohibition upon Exercise of Uncharacteristic Power by Any Department.

Each department is prohibited from "exercising powers (not inherent or expressly delegated) which from their essential nature do not fall within its division of governmental functions.14 Thus Congress cannot exercise such judicial powers as punishing for contempt unless necessary for performing its legislative functions,15 nor such executive powers as directing the detailed movement of troops16 or appointing officers.17 The courts cannot exercise such

18 Legislative power cannot be delegated even by the legislature itself, but the Constitution gives considerable power to Congress over the determination of executive and judicial competence. Infra, sec. 60. But see Goodnow, op. cit., p. 41.

14 Willoughby, op. cit., p. 1263.

15 Kilbourn v. Thompson, 103 U. S. 168. Nor can Congress exercise judicial power by deciding specific cases involving private rights, Willoughby, op. cit., p. 1264.

16 Ex parte Milligan, 4 Wall. 2, Willoughby, op. cit., p. 1207.

17 Constitution, II, sec. 2. Congress, however, has the inherent power to appoint subordinate officers necessary for the conduct of its internal business, Goodnow, op. cit., p. 38.