[182] 4 Dall. 37 (1800).

[183] Crandall, Treaties (2d ed.), 458; _See_ Messages and Papers of the

Presidents, IV, 2245; and Benton, 15 Abridgment of the Debates of

Congress, 478. Mangum of North Carolina denied that Congress could

authorize the President to give notice: "He entertained not a particle

of doubt that the question never could have been thrown upon Congress

unless as a war or _quasi_ war measure. * * * Congress had no power of

making or breaking a treaty." He owned, however, that he might appear

singular in his view of the matter. Ibid. 472.

[184] Crandall, 458-462; Wright, The Control of American Foreign

Relations, 258.

[185] 38 Stat. 1164.

[186] Crandall, 460.

[187] _See_ Jesse S. Reeves, The Jones Act and the Denunciation of

Treaties, 15 American Journal of International Law (January, 1921)

33-38. Among other precedents which call into question the exclusive

significance of the legislative role in the termination of treaties as

international conventions is one mentioned by Mr. Taft: "In my

administration the lower house passed a resolution directing the

abrogation of the Russian Treaty of 1832, couched in terms which would

have been most offensive to Russia, and it did this by a vote so nearly

unanimous as to indicate that in the Senate, too, the same resolution

would pass. It would have strained our relations with Russia in a way

that seemed unwise. The treaty was an old one, and its construction had

been constantly the subject of controversy between the two countries,

and therefore, to obviate what I felt would produce unnecessary trouble

in our foreign relations, I indicated to the Russian ambassador the

situation, and advised him that I deemed it wise to abrogate the treaty,

which, as President, I had the right to do by due notice couched in a

friendly and courteous tone and accompanied by an invitation to begin

negotiations for a new treaty. Having done this, I notified the Senate

of the fact, and this enabled the wiser heads of the Senate to

substitute for the house resolution a resolution approving my action,

and in this way the passage of the dangerous resolution was avoided."

The resolution in question, it should be added, was a joint resolution,

and purported to ratify the President's action. The President himself

had asked only for ratification and approval of his course by the

Senate. William Howard Taft, The Presidency (New York, 1916), 112-114.

Two other precedents bearing on outright abrogation of treaties are the

following. The question whether to regard the extradition article of the

Treaty of 1842 with Great Britain as void on account of certain acts of

the British Government was laid before Congress by President Grant in a

special message dated June 20, 1876, in the following terms: "It is for

the wisdom of Congress to determine whether the article of the treaty

relating to extradition is to be any longer regarded as obligatory on

the Government of the United States or as forming part of the supreme

law of the land. Should the attitude of the British Government remain

unchanged, I shall not, without an expression of the wish of Congress

that I should do so, take any action either in making or granting

requisitions for the surrender of fugitive criminals under the treaty of

1842." Messages and Papers of the Presidents, IX, 4324, 4327. Three

years later Congress passed a resolution requiring the President to

abrogate articles V and VI of the Treaty of 1868 with China. President

Hayes vetoed it, partly on the ground that "the power of modifying an

existing treaty, whether by adding or striking out provisions, is a part

of the treaty-making power under the Constitution. * * *" At the same

time, he also wrote: "The authority of Congress to terminate a treaty

with a foreign power by expressing the will of the nation no longer to

adhere to it is as free from controversy under our Constitution as is

the further proposition that the power of making new treaties or

modifying existing treaties is not lodged by the Constitution in

Congress, but in the President, by and with the advice and consent of

the Senate, as shown by the concurrence of two-thirds of that body."

Ibid. 4470-4471. The veto would seem to have been based on a quibble.

[188] 229 U.S. 447 (1913).

[189] Ibid. 473-476.

[190] Clark _v._ Allen, 331 U.S. 503 (1947).

[191] Charlton _v._ Kelly, 229 U.S. 447 (1913).

[192] Fed. Cas. No. 13,799 (1855).

[193] 2 Pet. 253, 309 (1829).

[194] Acts of March 2, 1829 and of February 24, 1855; 4 Stat. 359 and 10

Stat. 614.

[195] In re Ross, 140 U.S. 453 (1891), where the treaty provisions

involved are given. The supplementary legislation was later reenacted as

Rev. Stat. Sec. 4083-4091.

[196] 18 U.S.C.A. Sec. 3181-3195.

[197] Baldwin _v._ Franks, 120 U.S. 678, 683 (1887).

[198] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). A different theory is

offered by Justice Story in his opinion for the Court in Prigg _v._

Pennsylvania, 16 Pet. 539 (1842), in the following words: "Treaties made

between the United States and foreign powers, often contain special

provisions, which do not execute themselves, but require the

interposition of Congress to carry them into effect, and Congress has

constantly, in such cases, legislated on the subject; yet, although the

power is given to the executive, with the consent of the senate, to make

treaties, the power is nowhere in positive terms conferred upon Congress

to make laws to carry the stipulations of treaties into effect. It has

been supposed to result from the duty of the national government to

fulfil all the obligations of treaties." Ibid. 619. Story was here in

quest of arguments to prove that Congress had power to enact a fugitive

slave law, which he based on its power "to carry into effect rights

expressly given and duties expressly enjoined" by the Constitution.

Ibid. 618-619. But the treaty-making power is neither a right nor a

duty, but one of the powers "vested by this Constitution in the

Government of the United States." Article I, section 8, clause 18.

[199] Geofroy _v._ Riggs, 133 U.S. 258 (1890). _See also_ Fort

Leavenworth Railroad Co. _v._ Lowe, 114 U.S. 525, 541 (1885), which is

cited in the Field opinion in support of the idea that no cession of any

portion of a State's territory could be effected without the State's

consent. The statement is the purest obiter.

[200] Ibid. 267.

[201] The majority of the cases, as was pointed out earlier, dealt with

the competence of the treaty-making power to grant aliens the right to

inherit real property contrary to State Law. The nearest the Court ever

came to lending countenance to the State Rights argument in this

connection was in Frederickson _v._ Louisiana, 23 How. 445 (1860). _See_

ibid. 448.

[202] 252 U.S. 416 (1920).

[203] Ibid. 433-434.

[204] Ibid. 435.

[205] 299 U.S. 304 (1936).

[206] Ibid. 318. "The treaty-making power vested in our government

extends to all proper subjects of negotiation with foreign governments.

It can, equally with any of the former or present governments of Europe,

make treaties providing for the exercise of judicial authority in other

countries by its officers appointed to reside therein." In re Ross, 140

U.S. 453, 463 (1891).

[207] Jefferson excepted out of the treaty-making power the delegated

powers of Congress, though just what he meant by this exception is

uncertain. He may have meant that no international agreement could be

constitutionally entered into by the United States within the sphere of

such powers, or only that treaty-provisions dealing with matters which

are also subject to the legislative power of Congress must, in order to

become law of the land, receive the assent of Congress. The latter

interpretation, however, does not state a limitation on the power of

making treaties in the sense of international conventions, but rather a

necessary procedure before certain conventions are cognizable by the

courts in the enforcement of rights under them, while the former

interpretation has been contradicted in practice from the outset.

Various other limitations to the treaty-making power have been suggested

from time to time. Thus, it has been contended that the territory of a

State of the Union could not be ceded without such State's consent, _see

above_; also, that while foreign territory can be annexed to the United

States by the treaty-making power, it could not be incorporated with the

United States except with the consent of Congress; also, that while the

treaty-making power can consent to the United States being sued for

damages in an international tribunal for an alleged incorrect decision

of a court of the United States, it could not consent to an appeal being

taken from one of its courts to an international tribunal.

The first of these alleged limitations may be dismissed as resting on

the unallowable idea that the United States is not as to its powers a

territorial government, but only the agent of the States. In the words

of Chancellor Kent: "The better opinion would seem to be, that such a

power of cession of the territory of a State without its consent does

reside exclusively in the treaty-making power, under the Constitution of

the United States, yet sound discretion would forbid the exercise of it

without the consent of the local government who are interested, except

in cases of great necessity, in which the consent might be presumed." 1

Comm. 166-167 and note. This seems also to have been substantially the

view of Marshall and Story. _See_ Willoughby, On the Constitution, I (2d

ed., 1929), 575-576. The second suggested limitation, which was urged at

tremendous length by Chief Justice White in his concurring opinion for

himself and three other Justices, in Downes _v._ Bidwell, 182 U.S. 244,

310-344 (1901), boils down simply to the question of correct

constitutional procedure for the effectuation of a treaty; and much the

same may be said of the third alleged limitation. This limitation was

first suggested in connection with the Hague Convention of 1907

providing for an International Prize Court as a result of appeal from

the prize courts of belligerents. To this arrangement President Taft

objected that the treaty-making power could not transfer to a tribunal

not known to the Constitution part of the "judicial power of the United

States," and upon this view of the matter dispensation was finally

granted the United States in a special protocol whereby this nation was

allowed, in lieu of granting appeals from its prize courts to the

International Court, to be mulcted in damages in the latter for

erroneous decisions in the former. It is submitted that President Taft's

position was fallacious, for the simple reason that not even the whole

American nation is entitled to judge finally of its rights or of those

of its citizens under the law which binds all nations and determines

their rights; and that, therefore, the whole American nation never had

any authority to create a judicial power vested with any such

jurisdiction. _See_ Edye _v._ Robertson (Head Money Cases), 112 U.S.

580, 598 (1884). The law of nations seems of itself to presuppose a

tribunal of nations with coextensive jurisdiction. Thus there is no

reason why a completely independent nation like the United States may

not consent to be bound by the decisions of such a tribunal without any

derogation from its rightful sovereignty. And if "the authority of the

United States" is the authority of the nation in the field of foreign

relations--if the National Government has constitutional powers

coextensive with its international responsibilities--we must conclude

that such consent can be validly given through the existing

treaty-making power. _See_ Favoring Membership of the United States in

the Permanent Court of International Justice, H. Rept. 1569, 68th Cong.,

2d sess.

[208] 5 Pet. 1 (1831).

[209] 6 Pet. 515 (1832).

[210] Ibid. 558.

[211] Holden _v._ Joy, 17 Wall. 211, 242 (1872); United States _v._ 43

Gallons of Whiskey, etc., 93 U.S. 188, 192 (1876); Dick _v._ United

States, 208 U.S. 340, 355-356 (1908).

[212] The New York Indians, 5 Wall. 761 (1867).

[213] The Kansas Indians, 5 Wall. 737, 757 (1867).

[214] United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 196

(1876).

[215] The Cherokee Tobacco, 11 Wall. 616 (1871). _See also_ Ward _v._

Race Horse, 163 U.S. 504, 511 (1896); and Thomas _v._. Gay, 169 U.S.

264, 270 (1898).

[216] 16 Stat. 544, 566; Rev. Stat Sec. 2079.

[217] Ward _v._ Race Horse, 163 U.S. 504 (1896).

[218] Lone Wolf _v._ Hitchcock, 187 U.S. 553 (1903).

[219] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890).

[220] The Cherokee Tobacco, 11 Wall. 616, 621 (1871).

[221] Choate _v._ Trapp, 224 U.S. 665, 677-678 (1912); Jones _v._

Meehan, 175 U.S. 1 (1899).

[222] For an effort to distinguish "treaties," "compacts," "agreements,"

"conventions," etc., _see_ Chief Justice Taney's opinion in Holmes _v._

Jennison, 14 Pet. 540, 570-572 (1840). Vattel is Taney's chief reliance.

[223] Story, Comm. Sec. 1403. The President has the power in the absence

of legislation by Congress, to control the landing of foreign cables on

the shores of the United States, 22 Op. Atty. Gen. 13 and 408 (1898,

1899).

[224] Crandall, Treaties (2d ed.) Chap. VIII. _See also_ McClure,

International Executive Agreements (Columbia University Press, 1941),

Chaps. I and II.

[225] Crandall, 102; McClure, 49-50.

[226] Crandall, 104-106; McClure, 81-82.

[227] Tucker _v._ Alexandroff, 183 U.S. 424, 435 (1902).

[228] Ibid. 467. The first of these conventions, signed July 29, 1882,

had asserted its constitutionality in very positive terms. "The power to

make and enforce such a temporary convention respecting its own

territory is a necessary incident to every national government, and

adheres where the executive power is vested. Such conventions are not

treaties within the meaning of the Constitution, and, as treaties,

supreme law of the land, conclusive on the courts, but they are

provisional arrangements, rendered necessary by national differences

involving the faith of the nation and entitled to the respect of the

courts. They are not a casting of the national will into the firm and

permanent condition of law, and yet in some sort they are for the

occasion an expression of the will of the people through their political

organ, touching the matters affected; and to avoid unhappy collision

between the political and judicial branches of the government, both

which are in theory inseparably all one, such an expression to a

reasonable limit should be followed by the courts and not opposed,

though extending to the temporary restraint or modification of the

operation of existing statutes. Just as here, we think, this particular

convention respecting San Juan should be allowed to modify for the time

being the operation of the organic act of this Territory [Washington] so

far forth as to exclude to the extent demanded by the political branch

of the government of the United States, in the interest of peace, all

territorial interference for the government of that island." Wright, The

Control of American Foreign Relations, 239, quoting Watts _v._ United

States, 1 Wash. Terr., 288, 294 (1870).

[229] Quincy Wright, The Control of American Foreign Relations (New

York, 1922), 245.

[230] Crandall, 103-104.

[231] Ibid. 104.

[232] Willoughby, On the Constitution, I, 539.

[233] Wallace McClure, International Executive Agreements (Columbia

University Press, 1941), 98.

[234] Tyler Dennett, Roosevelt and the Russo-Japanese War (New York,

1925), 112-114.

[235] McClure, International Executive Agreements, 98-99.

[236] Ibid. 99-100.

[237] Willoughby, On the Constitution, I, 547.

[238] Wallace McClure, International Executive Agreements (Columbia

University Press, 1941), 97, 100.

[239] McClure, International Executive Agreements, 141.

[240] 301 U.S. 324 (1937).

[241] Ibid. 330-332.

[242] 315 U.S. 203 (1942).

[243] Ibid. 229-230. Citing The Federalist, No. 64.

[244] Ibid. 230. Citing Guaranty Trust Co. _v._ United States, 304 U.S.

126, 143 (1938).

[245] Ibid. 230-231. Citing Nielsen _v._ Johnson, 279 U.S. 47 (1929).

[246] Ibid. 231. Citing Santovincenzo _v._ Egan, 284 U.S. 30 (1931);

United States _v._ Belmont, 301 U.S. 324 (1937).

[247] Ibid. 233-234. Citing Oetjen _v._ Central Leather Co., 246 U.S.

297, 304 (1918).

[248] 315 U.S. at 228-234 _passim_. Chief Justice Stone and Justice

Roberts dissented, chiefly on the question of the interpretation of the

Litvinov Agreement, citing Guaranty Trust Co. _v._ United States, Note 3

above.

[249] McClure, p. 391.

[250] Ibid. 391-393; United States Department of State Bulletin,

September 7, 1940, pp. 199-200.

[251] McClure, 394-403; _cf._ The Constitution, article IV, section 3,

clause 2. When President John Adams signed a deed conveying property for

a legation to the Queen of Portugal, he was informed by his Attorney

General that only Congress was competent to grant away public property.

_See_ W.B. Bryan, A History of the National Capitol From Its Foundation

Through the Period of the Adoption of the Organic Act, I, 328-329; 1

American State Papers, Misc., 334. _See also_ Chief Justice Hughes, for

the Court, in Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288,

330 (1936).

[252] 4 State Department Bulletin, April 12, 1941, pp. 443-447.

[253] What purports to be the correct text of these agreements was

published in the New York Times of March 11, 1947. The joint statement

by the United States, Great Britain, and France on arms aid for the

Middle East which was released by the White House on May 25, 1950 (_See_

A.P. dispatches of that date) bears the earmarks of an executive

agreement. And the same may be said of the following communique issued

by the North Atlantic Council at the close of its Sixth Session at

Brussels on December 19, 1950.

"The North Atlantic Council acting on recommendations of the Defense

Committee today completed the arrangements initiated in September last

for the establishment in Europe of an integrated force under centralized

control and command. This force is to be composed of contingents

contributed by the participating governments.

"The Council yesterday unanimously decided to ask the President of the

United States to make available General of the Army Dwight D. Eisenhower

to serve as Supreme Commander. Following receipt this morning of a

message from the President of the United States that he had made General

Eisenhower available, the Council appointed him. He will assume his

command and establish his headquarters in Europe early in the New Year.

He will have the authority to train the national units assigned to his

command and to organize them into an effective integrated defense force.

He will be supported by an international staff drawn from the nations

contributing to the force.

"The Council, desiring to simplify the structure of the North Atlantic

Treaty Organization in order to make it more effective, asked the

Council Deputies to initiate appropriate action. In this connection the

Defense Committee, meeting separately on December 18th, had already

taken action to establish a defense production board with greater powers

than those of the Military Production and Supply Board which it

supersedes. The new board is charged with expanding and accelerating

production and with furthering the mutual use of the industrial

capacities of the member nations.

"The Council also reached unanimous agreement regarding the part which

Germany might assume in the common defense. The German participation

would strengthen the defense of Europe without altering in any way the

purely defensive character of the North Atlantic Treaty Organization.

The Council invited the Governments of France, the United Kingdom and

the United States to explore the matter with the Government of the

German Federal Republic.

"The decisions taken and the measures contemplated have the sole purpose

of maintaining and consolidating peace. The North Atlantic nations are

determined to pursue this policy until peace is secure." Department of

State release to the press of December 19, 1950 (No. 1247).

[254] McClure, International Executive Agreements, 38; 1 Stat. 232-239;

reenacted in 1 Stat. 354, 366.

[255] McClure, 78-81; Crandall, 127-131.

[256] Crandall, 121-127.

[257] 48 Stat. 943. Section 802 of the Civil Aeronautics Act of 1938 (52

Stat. 973) "clearly anticipates the making of agreements with foreign

countries concerning civil aviation." 40 Op. Atty. Gen. 451, 452 (1946).

[258] 143 U.S. 649 (1892).

[259] Ibid. 694.

[260] 224 U.S. 583, 596 (1912).

[261] Ibid. 601.

[262] 55 Stat. 31. One specific donation was of a destroyer to the Queen

of Holland, a refugee at the time in Great Britain.

[263] 42 Stat. 363, 1325, 1326-1327; extended by 43 Stat. 763.

[264] _See_ Corwin, The President, Office and Powers (3d ed.) 264 and

notes.

[265] 48 Stat. 1182.

[266] McClure, 13-14.

[267] Ibid. 14.

[268] "There have been numerous instances in which the Senate has

approved treaties providing for the submission of specific matters to

arbitration, leaving it to the President to determine exactly the form

and scope of the matter to be arbitrated and to appoint the arbitrators.

Professor J.B. Moore, in the article to which reference has already been

made, enumerates thirty-nine instances in which provision has thus been

made for the settlement of pecuniary claims. Twenty of these were claims

against foreign governments, fourteen were claims against both

governments, and five against the United States alone." Willoughby, On

the Constitution, I, 543.

[269] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st

sess., 126.

[270] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st

sess., 158.

[271] United States _v._ Hartwell, 6 Wall. 385, 393 (1868).

[272] 7 Op. Atty. Gen. 168 (1855).

[273] It was so assumed by Senator William Maclay. _See_ Journal of

William Maclay (New York, 1890), 109-110.

[274] 5 Benton, Abridgment of the Debates of Congress, 90-91; 3 Letters

and Other Writings of James Madison (Philadelphia, 1867), 350-353,

360-371.

[275] 10 Stat. 619, 623.

[276] 7 Op. Atty. Gen. 220.

[277] 35 Stat. 672; _see also_ The act of March 1, 1893, 27 Stat. 497,

which purported to authorize the President to appoint ambassadors in

certain cases.

[278] 22 U.S.C. Sec. 1-231.

[279] 11 Benton, Abridgement of the Debates of Congress, 221-222.

[280] S. Misc. Doc. 109, 50th Cong., 1st sess., 104.

[281] S. Rept. 227, 53d Cong., 2d sess., 25. At the outset of our

entrance into World War I President Wilson dispatched a mission to

"Petrograd," as it was then called, without nominating the Members of it

to the Senate. It was headed by Mr. Elihu Root, with "the rank of

ambassador," while some of his associates bore "the rank of envoy

extraordinary."

[282] _See_ George Frisbie Hoar, Autobiography, II, 48-51.

[283] Justice Brandeis, dissenting in Myers _v._ United States, 272 U.S.

52, 264-274 (1926).

[284] _See_ data in Corwin, The President, Office and Powers (3d ed.)

418. Congress has repeatedly designated individuals, sometimes by name,

more frequently by reference to a particular office, for the performance

of specified acts or for posts of a nongovernmental character; e.g., to

paint a picture (Jonathan Trumbull), to lay out a town, to act as

Regents of Smithsonian Institution, to be managers of Howard Institute,

to select a site for a post office or a prison, to restore the

manuscript of the Declaration of Independence, to erect a monument at

Yorktown, to erect a statue of Hamilton, and so on and so forth. 42

Harvard Law Review, 426, 430-431. In his message of April 13, 1822,

President Monroe stated the thesis that, "as a general principle, * * *

Congress have no right under the Constitution to impose any restraint by

law on the power granted to the President so as to prevent his making a

free selection of proper persons for these [newly created] offices from

the whole body of his fellow-citizens." Messages and Papers of the

Presidents, II, 698, 701. The statement is ambiguous, but its apparent

intention is to claim for the President unrestricted power in

determining who are proper persons to fill newly created offices.

[285] 19 Stat. 143, 169 (1876).

[286] In Ex parte Curtis, 106 U.S. 371 (1882), Chief Justice Waite

reviews early Congressional legislation regulative of conduct in office.

"The act now in question is one regulating in some particulars the

conduct of certain officers and employes of the United States. It rests

on the same principle as that originally passed in 1789 at the first

session of the first Congress, which makes it unlawful for certain

officers of the Treasury Department to engage in the business of trade

or commerce, or to own a sea vessel, or to purchase public lands or

other public property, or to be concerned in the purchase or disposal of

the public securities of a State, or of the United States (Rev. Stat.,

sect. 243); and that passed in 1791, which makes it an offence for a

clerk in the same department to carry on trade or business in the funds

or debts of the States or of the United States, or in any kind of public

property (id., sect. 244); and that passed in 1812, which makes is

unlawful for a judge appointed under the authority of the United States

to exercise the profession of counsel or attorney, or to be engaged in

the practice of the law (id., sect. 713); and that passed in 1853, which

prohibits every officer of the United States or person holding any place

of trust or profit, or discharging any official function under or in

connection with any executive department of the government of the United

States, or under the Senate or House of Representatives, from acting as

an agent or attorney for the prosecution of any claim against the United

States (id., sect. 5498); and that passed in 1863, prohibiting members

of Congress from practicing in the Court of Claims (id., sect. 1058);

and that passed in 1867, punishing, by dismissal from service, an

officer or employe of the government who requires or requests any

workingman in a navy-yard to contribute or pay any money for political

purposes (id., sect. 1546); and that passed in 1868, prohibiting members

of Congress from being interested in contracts with the United States

(id., sect. 3739); and another, passed in 1870, which provides that no

officer, clerk, or employe in the government of the United States shall

solicit contributions from other officers, clerks, or employes for a

gift to those in a superior official position, and that no officials or

[clerical superiors shall receive any gift or] present as a contribution

to them from persons in government employ getting a less salary than

themselves, and that no officer or clerk shall make a donation as a gift

or present to any official superior (id., sect. 1784). Many others of a

kindred character might be referred to, but these are enough to show

what has been the practice in the Legislative Department of the

Government from its organization, and, so far as we know, this is the

first time the constitutionality of such legislation has ever been

presented for judicial determination." Ibid. 372-373.

[287] 5 U.S.C. Sec. 631-642.

[288] 54 Stat. 767, 771 (1940).

[289] 330 U.S. 75 (1947).

[290] 18 U.S.C. 611.

[291] _See_ Bills Listed in Index to Digest of Public General Bills,

79th Cong., 2d sess.

[292] 12 Fed Reg. 1935.

[293] Shoemaker _v._ Unite States, 147 U.S. 282, 301 (1893).

[294] United States _v._ Germaine, 99 U.S. 508 (1879) is the leading

case. For further citations _see_ Auffmordt _v._ Hedden, 137 U.S. 310,

327 (1890). The Court will, nevertheless, be astute to ascribe to a head

of department an appointment made by an inferior of such head. Nishimura

Ekiu _v._ United States, 142 U.S. 651, 663 (1892). For the view that

there is an intrinsic difference between a "public office" and a "public

employment" _see_ Mechem, Public Officers, pp. 3-5.

[295] Ex parte Hennen, 13 Pet. 230, 257-258 (1839); United States _v._

Germaine, 99 U.S. 508, 509 (1879). The statement on the point is in both

instances obiter.

[296] Ex parte Siebold, 100 U.S. 371, 397 (1880).

[297] "They [the clauses of the Constitution] seem to contemplate three

distinct operations: 1st. The nomination. This is the sole act of the

President, and is completely voluntary. 2d. The appointment. This is

also the act of the President, and is also a voluntary act, though it

can only be performed by and with the advice and consent of the Senate.

3d. The commission. To grant a commission to a person appointed, might,

perhaps, be deemed a duty enjoined by the constitution. 'He shall,' says

that instrument, 'commission all the officers of the United States.'"

Marbury _v._ Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement

that the appointment "is the act of the President," conflicts with the

more generally held, and sensible view that when an appointment is made

with its consent, the Senate shares the appointing power. 1 Kent's Comm.

310; 2 Story Comm. Sec. 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839).

[298] 3 Op. Atty. Gen. 188 (1837).

[299] 2 Story Comms., Sec. 1531; 5 Writings of Jefferson (Ford, ed.),

161 (1790); 9 Writings of Madison (Hunt, ed.), 111-113 (1822).

[300] 286 U.S. 6 (1932).

[301] Corwin, The President, Office and Powers (3d ed.), 92.

[302] Marbury _v._ Madison, 1 Cr. 137, 157-158, 182 (1803).

[303] 12 Op. Atty. Gen. 306 (1867).

[304] It should be remembered that, for various reasons, Marbury got

neither commission nor office. The case assumes, in fact, the necessity

of possession of his commission by the appointee.

[305] Opins. Atty. Gen. 631 (1823); 2 ibid. 525 (1832); 3 ibid. 673

(1841); 4 ibid. 523 (1846); 10 ibid. 356 (1862); 11 ibid. 179 (1865); 12

ibid. 32 (1866); 12 ibid. 455 (1868); 14 ibid. 563 (1875); 15 ibid. 207

(1877); 16 ibid. 523 (1880); 18 ibid. 28 (1884); 19 ibid. 261 (1889); 26

ibid. 234 (1907); 30 ibid. 314 (1914); 33 ibid. 20 (1921). In 4 Opins.

Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply

to a yet unfilled office which was created during the previous session

of Congress, but this distinction is rejected in 12 ibid. 455 (1868); 18

ibid. 28; and 19 ibid. 261.

[306] 23 Opins. Atty. Gen. 599 (1901); 22 ibid. 82 (1898). A "recess"

may, however, be merely "constructive," as when a regular session

succeeds immediately upon a special session. It was this kind of

situation that gave rise to the once famous _Crum_ incident. _See_

Willoughby, III, 1508-1509.

[307] 5 U.S.C. Sec. 56.

[308] 6 Opins. Atty. Gen. 358 (1854); 12 ibid. 41 (1866); 25 ibid. 259

(1904); 28 ibid. 95 (1909).

[309] 272 U.S. 52.

[310] 19 Stat. 78, 80.

[311] 272 U.S. 163-164.

[312] The reticence of the Constitution respecting removal left room for

four possibilities, _first_, the one suggested by the common law

doctrine of "estate in office," from which the conclusion followed that

the impeachment power was the only power of removal intended by the

Constitution; _second_, that the power of removal was an incident of the

power of appointment and hence belonged, at any rate in the absence of

legal or other provision to the contrary, to the appointing authority;

_third_, that Congress could, by virtue of its power "to make all laws

which shall be necessary and proper," etc., determine the location of

the removal of power; _fourth_, that the President by virtue of his

"executive power" and his duty "to take care that the laws be faithfully

executed," possesses the power of removal over all officers of the

United States except judges. In the course of the debate on the act to

establish a Department of Foreign Affairs (later changed to Department

of State) all of these views were put forward, with the final result

that a clause was incorporated in the measure which implied, as pointed

out above, that the head of the department would be removable by the

President at his discretion. Contemporaneously and indeed until after

the Civil War, this action by Congress, in other words "the decision of

1789," was interpreted as establishing "a practical construction of the

Constitution" with respect to executive officers appointed without

stated terms. However, in the dominant opinion of those best authorized

to speak on the subject, the "correct interpretation" of the

Constitution was that the power of removal was always an incident of the

power of appointment, and that therefore in the case of officers

appointed by the President with the advice and consent of the Senate the

removal power was exercisable by the President only with the advice and

consent of the Senate. _See_ Hamilton in the Federalist No. 77; 1 Kent's

Comm. 310; 2 Story Comm. Sec. 1539 and 1544; Ex parte Hennen, 13 Pet. 225,

258-259 (1839). The doctrine of estate in office was countenanced by

Chief Justice Marshall in his opinion in Marbury _v._ Madison, 1 Cr.

137, 162-165 (1803), but has long been rejected. _See_ Crenshaw _v._

United States, 134 U.S. 99, 108 (1890). The three remaining views are

treated by the Chief Justice, at some cost in terms of logic as well as

of history, as grist to his mill.

[313] 272 U.S. at 134.

[314] Annals of Congress, cols. 635-636.

[315] 295 U.S. 602 (1935). The case is also styled Rathbun, Executor

_v._ United States, Humphrey having, like Myers before him, died in the

course of his suit for salary.

[316] 295 U.S. at. 627-629, 631-632. Justice Sutherland's statement,

quoted above, that a Federal Trade Commissioner "occupies no place in

the executive department" (_See also_ to the same effect p. 630 of the

opinion) was not necessary to the decision of the case, was altogether

out of line with the same Justice's reasoning in Springer _v._

Philippine Islands, 277 U.S. 189, 201-202 (1928), and seems later to

have caused the author of it much perplexity. _See_ Robert E. Cushman,

The Independent Regulatory Commissions (Oxford University Press, 1941),

447-448. As Professor Cushman adds: "Every officer and agency created by

Congress to carry laws into effect is an arm of Congress. * * * The term

may be a synonym; it is not an argument." Ibid. 451.

[317] United States _v._ Perkins, 116 U.S. 483 (1886).

[318] Parsons _v._ United States, 167 U.S. 324 (1897).

[319] Shurtleff _v._ United States, 189 U.S. 311 (1903).

[320] Blake _v._ United States, 103 U.S. 227 (1881); Quackenbush _v._

United States, 177 U.S. 20 (1900); Wallace _v._ United States, 257 U.S.

541 (1922).

[321] Morgan _v._ TVA, 28 F. Supp. 732 (1939), certiorari refused March

17, 1941. 312 U.S. 701, 702.

[322] _See_ United Public Workers _v._ Mitchell, 330 U.S. 75 (1947);

_also_ Ex parte Curtis, 106 U.S. 371 (1882); and 39 Op. Atty. Gen. 145

(1938).

[323] 6 Op. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890).

[324] United States _v._ Lovett, 328 U.S. 303 (1946).

[325] Messages and Papers of the Presidents, II, 847 (January 10, 1825).

[326] _See_ 328 U.S. at 313.

[327] In this connection the following colloquy between Attorney General

Lincoln and the Court in course of the proceedings in Marbury _v._

Madison is of first importance: "Mr. Lincoln, attorney-general, having

been summoned, and now called, objected to answering. * * * On the one

hand he respected the jurisdiction of this court, and on the other he

felt himself bound to maintain the rights of the executive. He was

acting as secretary of state at the time when this transaction happened.

He was of opinion, and his opinion was supported by that of others whom

he highly respected, that he was not bound, and ought not to answer, as

to any facts which came officially to his knowledge while acting as

secretary of state. He did not think himself bound to disclose his

official transactions while acting as secretary of state; * * * The

court said, that if Mr. Lincoln wished time to consider what answers he

should make, they would give him time; but they had no doubt he ought to

answer. There was nothing confidential required to be disclosed. If

there had been he was not obliged to answer it; and if he thought that

any thing was communicated to him in confidence he was not bound to

disclose it; * * *" 1 Cr. 137, 143-145 (1803).

[328] The following letter, dated April 30, 1941, from Attorney General

Jackson to Hon. Carl Vinson, Chairman of the House Committee on Naval

Affairs is of interest in this connection: "My Dear Mr. Vinson: I have

your letter of April 23, requesting that your committee be furnished

with all Federal Bureau of Investigation reports since June 1939,

together with all future reports, memoranda, and correspondence of the

Federal Bureau of Investigation, or the Department of Justice, in

connection with 'investigations made by the Department of Justice

arising out of strikes, subversive activities in connection with labor

disputes, or labor disturbances of any kind in industrial establishments

which have naval contracts, either as prime contractors or

subcontractors.' Your request to be furnished reports of the Federal

Bureau of Investigation is one of the many made by congressional

committees. I have on my desk at this time two other such requests for

access to Federal Bureau of Investigation files. The number of these

requests would alone make compliance impracticable, particularly where

the requests are of so comprehensive a character as those contained in

your letter. In view of the increasing frequency of these requests, I

desire to restate our policy at some length, together with the reasons

which require it. It is the position of this Department, restated now

with the approval of and at the direction of the President, that all

investigative reports are confidential documents of the executive

department of the Government, to aid in the duty laid upon the President

by the Constitution to 'take care that the laws be faithfully executed,'

and that congressional or public access to them would not be in the

public interest.

"Disclosure of the reports could not do otherwise than seriously

prejudice law enforcement. Counsel for a defendant or prospective

defendant, could have no greater help than to know how much or how

little information the Government has, and what witnesses or sources of

information it can rely upon. This is exactly what these reports are

intended to contain. * * *

"In concluding that the public interest does not permit general access

to Federal Bureau of Investigation reports for information by the many

congressional committees who from time to time ask it, I am following

the conclusions reached by a long line of distinguished predecessors in

this office who have uniformly taken the same view. Example of this are

to be found in the following letters, among others:

"Letter of Attorney General Knox to the Speaker of the House, dated

April 27, 1904, declining to comply with a resolution of the House

requesting the Attorney General to furnish the House with all papers and

documents and other information concerning the investigation of the

Northern Securities case.

"Letter of Attorney General Bonaparte to the Speaker of the House, dated

April 13, 1908, declining to comply with a resolution of the House

requesting the Attorney General to furnish to the House information

concerning the investigation of certain corporations engaged in the

manufacture of wood pulp or print paper.

"Letter of Attorney General Wickersham to the Speaker of the House,

dated March 18, 1912, declining to comply with a resolution of the House

directing the Attorney General to furnish to the House information

concerning an investigation of the smelter trust.

"Letter of Attorney General McReynolds to the Secretary to the

President, dated August 28, 1914, stating that it would be incompatible

with the public interest to send to the Senate in response to its

resolution, reports made to the Attorney General by his associates

regarding violations of law by the Standard Oil Co.

"Letter of Attorney General Gregory to the President of the Senate,

dated February 23, 1915, declining to comply with a resolution of the

Senate requesting the Attorney General to report to the Senate his

findings and conclusions in the investigation of the smelting industry.

"Letter of Attorney General Sargent to the chairman of the House

Judiciary Committee, dated June 8, 1926, declining to comply with his

request to turn over to the committee all papers in the files of the

Department relating to the merger of certain oil companies. * * *

"This discretion in the executive branch has been upheld and respected

by the judiciary. The courts have repeatedly held that they will not and

cannot require the executive to produce such papers when in the opinion

of the executive their production is contrary to the public interests.

The courts have also held that the question whether the production of

the papers would be against the public interest is one for the executive

and not for the courts to determine." Mr. Jackson cites Marbury _v._

Madison, 1 Cr. 137, 169 (1803); and more than a dozen other cases,

federal and State, most of which involved "privileged communications" in

ordinary court proceedings. The doctrine of the equality of the three

departments is also invoked by him.--10 Op. Atty. Gen. 45.

[329] _See_ Norman J. Small, Some Presidential Interpretations of the

Presidency (Johns Hopkins Press, 1932); Henry C. Black, The Relation of

the Executive Power to Legislation (Princeton, 1919); W.E. Binkley, The

President and Congress (New York, 1947); Edward S. Corwin, The

President, Office and Powers (3d ed., 1948), Chaps. I and VII, _passim_.

[330] The first Harrison, Polk, Taylor, and Fillmore all fathered

sentiments to this general effect. _See_ Messages and Papers of the

President, IV, 1864; V, 2493; VI, 2513-2519, 2561-2562, 2608, 2615.

[331] Note 1, above. [Transcriber's Note: Reference is to Footnote 329,

above.]

[332] Charles Warren, Presidential Declarations of Independence, 10

Boston University Law Review, No. 1 (January, 1930); Willoughby, On the

Constitution, III, 1488-1492.

[333] 7 Op. Atty. Gen. 186, 209 (1855).

[334] 5 Moore, International Law Digest, 15-19.

[335] 4 Ibid. 473-548; 5 Ibid. 19-32.

[336] Opinion on the Question Whether the Senate Has the Right to

Negative the Grade of Persons Appointed by the Executive to Fill Foreign

Missions, April 24, 1790; Padover, The Complete Jefferson (New York,

1943), 138.

[337] 4 Moore, International Law Digest, 680-681.

[338] This measure, amended by the act of March 4, 1909 (35 Stat. 1088),

is now 18 U.S.C.A. Sec. 953.

[339] _See_ Memorandum on the History and Scope of the Laws Prohibiting

Correspondence with a Foreign Government, S. Doc. 696, 64th Cong., 2d

sess., (1917). The author was Mr. Charles Warren, then Assistant

Attorney General. Further details concerning the observance of the

"Logan" Act are given in Corwin, The President, Office and Powers (3d

ed.) 223-224, 469-470. Early in October, 1950 President Harold Stassen

of the University of Pennsylvania announced that he had written Premier

Stalin offering to confer with him respecting issues between the two

governments.

[340] Benton Abridgment of the Debates of Congress, 466-467.

[341] S. Doc. 56, 54th Cong., 2d sess., (1897).

[342] The Federalist, containing the Letters of Pacificus and Helvidius

(New ed., 1852) 444; _see also_ p. 493, n. 1. [Transcriber's Note:

Reference is to Footnote 344, below.]

[343] The Federalist No. 69, where he wrote: "The president is also to

be authorized to receive ambassadors, and other public ministers. This,

though it has been a rich theme of declamation, is more a matter of

dignity than of authority. It is a circumstance which will be without

consequence in the administration of the government; and it was far more

convenient that it should be arranged in this manner, than that there

should be a necessity of convening the legislature, or one of its

branches, upon every arrival of a foreign minister; though it were

merely to take the place of a departed predecessor." Ibid. 518.

[344] "Letters of Pacificus," 7 Works (Hamilton ed.) 76, 82-83.

[345] Moore, International Law Digest, IV, 680-681.

[346] The Federalist containing the Letters of Pacificus and Helvidius

(New ed. 1852) 445-446.

[347] Moore, International Law Digest, I, 243-244. The course of the

Monroe Administration in inviting the cooperation of Congress in

connection with recognition of the Spanish-American Republics, although

it was prompted mainly by the consideration that war with Spain might

result, was nonetheless opposed by Secretary of State John Quincy Adams.

"Instead," said he, "of admitting the Senate or House of Representatives

to any share in the act of recognition, I would expressly avoid that

form of doing it which would require the concurrence of those bodies. It

was I had no doubt, by our Constitution an act of the Executive

authority. General Washington had exercised it in recognizing the French

Republic by the reception of Mr. Genet. Mr. Madison had exercised it by

declining several years to receive, and by finally receiving, Mr. Onis;

and in this instance I thought the Executive ought carefully to preserve

entire the authority given him by the Constitution, and not weaken it by

setting the precedent of making either House of Congress a party to an

act which it was his exclusive right and duty to perform. Mr. Crawford

said he did not think there was anything in the objection to sending a

minister on the score of national dignity, and that there was a

difference between the recognition of a change of government in a nation

already acknowledged as sovereign, and the recognition of a new nation

itself. He did not, however, deny, but admitted, that the recognition

was strictly within the powers of the Executive alone, and I did not

press the discussion further.'" Ibid., 244-245; citing Memoirs of John

Quincy Adams, IV, 205-206.

[348] S. Doc. 56, 54th Cong., 2d sess., pp. 20-22.

[349] Said Senator Nelson of Minnesota: "The President has asked us to

give him the right to make war to expel the Spaniards from Cuba. He has

asked us to put that power in his hands; and when we are asked to grant

that power--the highest power given under the Constitution--we have the

right, the intrinsic right, vested in us by the Constitution, to say how

and under what conditions and with what allies that war-making power

shall be exercised." 31 Cong. Record, Pt. 4, p. 3984.

[350] _See_ in this connection a long list of resolutions or bills

originating in the House of Representatives appertaining to foreign

relations. H. Rept. 1569 ("Confidential"), 68th Cong., 2d sess.

(February 24, 1925).

[351] _See_ A Decade of American Foreign Policy, S. Doc. 123, 81st

Cong., 1st sess., p. 158.

[352] President Truman's Statement of June 28, 1950, A.P. release: "The

Security Council called upon all members of the United Nations to render

every assistance to the United Nations in the execution of this

resolution.

"In these circumstances I have ordered United States air and sea forces

to give the Korean Government troops cover and support.

"The attack upon Korea makes it plain beyond all doubt that communism

has passed beyond the use of subversion to conquer independent nations

and will now use armed invasion and war.

"It has defied the orders of the Security Council of the United Nations

issued to preserve international peace and security. In these

circumstances the occupation of Formosa by Communist forces would be a

direct threat to the security of the Pacific area and to United States

forces performing their lawful and necessary functions in that area.

"Accordingly I have ordered the Seventh Fleet to prevent any attack on

Formosa. As a corollary of this action I am calling upon the Chinese

Government on Formosa to cease all air and sea operations against the

mainland. The Seventh Fleet will see that this is done. The

determination of the future status of Formosa must await the restoration

of security in the Pacific, a peace settlement with Japan, or

consideration by the United Nations.

"I have also directed that United States forces in the Philippines be

strengthened and that military assistance to the Philippine Government

be accelerated.

"I have similarly directed acceleration in the furnishing of military

assistance to the forces of France and the associated states in

Indo-China and the dispatch of a military mission to provide close

working relations with those forces."

[353] Messages and Papers of the Presidents, XVII, (1914), 7934.

[354] 55 Stat. 31; 22 U.S.C. (1940), Supp. IV, Sec. 411-413.

[355] James F. Green, The President's Control of Foreign Policy, Foreign

Policy Reports (April 1, 1939), 17-18; Corwin, The President, Office and

Powers (3d ed.), 224-235; 463-465, 473-474.

[356] 2 Pet. 253 (1829).

[357] Ibid. 308.

[358] 13 Pet. 415 (1839).

[359] Ibid. 420.

[360] Foster _v._ Neilson, supra.

[361] Williams _v._ Suffolk Ins. Co., 13 Pet. 415 (1839).

[362] United States _v._ Palmer, 3 Wheat. 610 (1818).

[363] Doe _v._ Braden, 16 How. 636, 657 (1853).

[364] Jones _v._ United States, 137 U.S. 202 (1890); Oetjen _v._ Central

Leather Co., 246 U.S. 297 (1918).

[365] In re Baiz, 135 U.S. 403 (1890).

[366] Neely _v._ Henkel, 180 U.S. 109 (1901).

[367] Terlinden _v._ Ames, 184 U.S. 270 (1902); Charlton _v._ Kelly, 229

U.S. 447 (1913).

[368] 333 U.S. 103 (1948).

[369] 49 U.S.C. Sec. 601.

[370] Ibid. Sec. 646.

[371] Chicago & S. Airlines _v._ Waterman S.S. Corp., 333 U.S. 103, 111

(1948). _See also_ Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918);

Ricaud _v._ American Metal Co., 246 U.S. 304 (1918); and Compania

Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 U.S. 68, 74

(1938). In this last case the Court declared: "The vessel of a friendly

government in its possession and service is a public vessel, even though

engaged in the carriage of merchandise for hire, and as such is immune

from suit in the courts of admiralty of the United States. * * * It is

open to a friendly government to assert that such is the public status

of the vessel and to claim her immunity from suit, either through

diplomatic channels or, if it chooses, as a claimant in the courts of

the United States. If the claim is recognized and allowed by the

executive branch of the government, it is then the duty of the courts to

release the vessel upon appropriate suggestion by the Attorney General

of the United States, or other officer acting under his direction. * * *

The foreign government is also entitled as of right upon a proper

showing, to appear in a pending suit, there to assert its claim to the

vessel, and to raise the jurisdictional question in its own name or that

of its accredited and recognized representative." Similarly, it has been

held that courts may not exercise their jurisdiction by the seizure and

detention of the property of a friendly sovereign, so as to embarrass

the executive arm of the government in conducting foreign relations. Ex

parte Republic of Peru, 318 U.S. 578 (1943).

[372] 335 U.S. 160 (1948).

[373] Ibid. 167, 170. Four Justices dissented, by Justice Black, who

said: "The Court * * * holds, as I understand its opinion, that the

Attorney General can deport him whether he is dangerous or not. The

effect of this holding is that any unnaturalized person, good or bad,

loyal or disloyal to this country, if he was a citizen of Germany before

coming here, can be summarily seized, interned and deported from the

United States by the Attorney General, and that no court of the United

States has any power whatever to review, modify, vacate, reverse, or in

any manner affect the Attorney General's deportation order. * * * I

think the idea that we are still at war with Germany in the sense

contemplated by the statute controlling here is a pure fiction.

Furthermore, I think there is no act of Congress which lends the

slightest basis to the claim that after hostilities with a foreign

country have ended the President or the Attorney General, one or both,

can deport aliens without a fair hearing reviewable in the courts. On

the contrary, when this very question came before Congress after World

War I in the interval between the Armistice and the conclusion of formal

peace with Germany, Congress unequivocally required that enemy aliens be

given a fair hearing before they could be deported." Ibid. 174-175. _See

also_ Woods _v._ Miller, 333 U.S. 138 (1948), where the continuation of

rent control under the Housing and Rent Act of 1947, enacted after the

termination of hostilities was unanimously held to be a valid exercise

of the war power, but the constitutional question raised was asserted to

be a proper one for the Court. Said Justice Jackson, in a concurring

opinion: "Particularly when the war power is invoked to do things to the

liberties of people, or to their property or economy that only

indirectly affect conduct of the war and do not relate to the management

of the war itself, the constitutional basis should be scrutinized with

care." Ibid. 146-147.

[374] 7 Op. Atty. Gen. 453, 464-465 (1855).

[375] 9 Stat. 102 (1846); 20 U.S.C. Sec. 41 and 48.

[376] _Cf._ 2 Stat. 78. The provision has long since dropped out of the

statute book.

[377] Runkle _v._ United States, 122 U.S. 543 (1887).

[378] _Cf._ In re Chapman, 166 U.S. 661, 670-671 (1897), where it is

held that presumptions in favor of official action "preclude collateral

attack on the sentences of courts-martial." _See also_ United States

_v._ Fletcher, 148 U.S. 84, 88-89 (1893); and Bishop _v._ United States,

197 U.S. 334, 341-342 (1905); both of which in effect repudiate Runkle

_v._ United States.

[379] "The President, in the exercise of his executive powers under the

Constitution, may act through the head of the appropriate executive

department. The heads of departments are his authorized assistants in

the performance of his executive duties, and their official acts,

promulgated in the regular course of business, are presumptively his

acts." Wilcox _v._ Jackson ex dem McConnel, 13 Pet. 498, 513 (1839).

_See also_, United States _v._ Eliason, 16 Pet. 291 (1842); Williams

_v._ United States, 1 How. 290, 297 (1843); United States _v._ Jones, 18

How. 92, 95 (1856); United States _v._ Clarke (Confiscation Cases), 20

Wall. 92 (1874); United States _v._ Farden, 99 U.S. 10 (1879); Wolsey

_v._ Chapman, 101 U.S. 755 (1880).

[380] 1 How. 290 (1843).

[381] 3 Stat. 723 (1823).

[382] 1 How. at 297-298.

[383] "It is manifestly impossible for the President to execute every

duty, and every detail thereof, imposed upon him by the Congress. The

courts have recognized this and have further recognized that he usually

and properly acts through the several executive departments. Every

reasonable presumption of validity is to be indulged with respect to the

performance by the head of a department of a duty imposed upon the

President and executed by the department head ostensibly in behalf of

the President. Nevertheless, the authorities indicate that the President

cannot, without statutory authority, delegate a discretionary duty,

relieving himself of all responsibility, so that the duty when performed

will not be his act but wholly the act of another. Williams _v._ United

States, 1 How. 290, 297 (1843); Runkle _v._ United States, 122 U.S. 543,

557 (1887); United States _v._ Fletcher, 148 U.S. 84, 88 (1893); French

_v._ Weeks, 259 U.S. 326, 334 (1922)"; 38 Op. Atty. Gen. 457-459 (1936).

[384] 1 Annals of Congress, cols. 515-516.

[385] Ibid. cols. 635-636.

[386] 1 Cr. 137 (1803).

[387] Ibid. 165-166.

[388] Op. Atty. Gen. 624 (1823).

[389] Messages and Papers of the Presidents, III, 1288.

[390] Ibid. 1304.

[391] 12 Pet. 524 (1838).

[392] Ibid. 610.

[393] 272 U.S. 52 (1926); 295 U.S. 602 (1935).

[394] Bruce Wyman, The Principles of the Administrative Law Governing

the Relations of Public Officers (St. Paul, 1903), 231-232.

[395] United States _v._ Eliason, 16 Pet. 291, 301-302 (1842); Kurtz

_v._ Moffitt, 115 U.S. 487, 503 (1885); Smith _v._ Whitney, 116 U.S.

167, 180-181 (1886).

[396] 135 U.S. 1 (1890).

[397] Ibid. 64. The phrase "a law of the United States" came from the

act of March 2, 1833 (4 Stat. 632). However, in 28 U.S.C. 2241 (c) (2),

as it stands following the amendment of May 24, 1949, c. 139, the phrase

is replaced by the term an act of Congress, thereby eliminating the

basis of the holding in In re Neagle.

[398] 236 U.S. 459 (1915); Mason _v._ United States, 260 U.S. 545

(1923).

[399] Rev. Stat. Sec. 5298; 50 U.S.C. Sec. 202.

[400] 1 Stat. 264 (1792); 1 Stat. 424 (1795); 2 Stat. 443 (1807); 12

Stat. 281 (1861).

[401] 12 Wheat. 19 (1827).

[402] Ibid. 31-32.

[403] "Federal Aid in Domestic Disturbances," S. Doc. 209, 59th Cong., 2

sess., p. 51 (1907).

[404] Op. Atty. Gen. 466 (1854). By the Posse Comitatus Act of 1878 (20

Stat. 152) it was provided that "* * * it shall not be lawful to employ

any part of the Army of the United States, as a _posse comitatus_, or

otherwise, for the purpose of executing the laws, except in such cases

and under such circumstances as such employment of said force may be

expressly authorized by the Constitution or by act of Congress * * *"

The effect of this prohibition, however, was largely nullified by a

ruling of the Attorney General "that by Revised Statutes Sec. 5298 and

5300, the military forces, under the direction of the President, could

be used to assist a marshal. 16 Op. Atty. Gen. 162." Bennett Milton

Rich, The Presidents and Civil Disorder (The Brookings Institution,

1941), 196 fn. 21.

[405] 12 Stat (App.) 1258.

[406] 212 U.S. 78 (1909).

[407] In re Debs, 158 U.S. 565 (1895).

[408] 212 U.S. at 84-85. _See also_ Sterling _v._ Constantin, 287 U.S.

378 (1932), which endorses Moyer _v._ Peabody, while emphasizing the

fact that it applies only to a condition of disorder.

[409] 158 U.S. at 584, 586. Some years earlier, in the United States

_v._ San Jacinto Tin Co., the Courts sustained the right of the Attorney

General and of his assistants to institute suits simply by virtue of

their general official powers. "If," the Court said, "the United States

in any particular case has a just cause for calling upon the judiciary

of the country, in any of its courts, for relief * * *" in the question

of appealing to them "must primarily be decided by the Attorney General

* * *" and if restrictions are to be placed upon the exercise of this

authority it is for Congress to enact them. 125 U.S. 273, 279 (1888).

_Cf._ Hayburn's case, 2 Dall. 409 (1792), in which the Court rejected

Attorney General Randolph's contention that he had the right _ex

officio_ to move for a writ of _mandamus_ ordering the United States

circuit court for Pennsylvania to put the Invalid Pension Act into

effect.

[410] 29 U.S.C. Sec. 101-105; 47 Stat. 70 (1932).

[411] 330 U.S. 258. Here it was held that the Norris-LaGuardia Act did

not apply to a case brought by the government as operator, under the War

Labor Disputes Act of 1943, of a large proportion of the nation's soft

coal mines. In reaching this result Chief Justice Vinson invoked the

"rule that statutes which in general terms divest preexisting rights or

privileges will not be applied to the sovereign without express words to

that effect." Standing by itself these words would seem to save the Debs

case. But they do not stand by themselves, for the Chief Justice

presently added "that Congress, in passing the [Norris-LaGuardia] Act,

did not intend to permit the United States to continue to intervene by

injunction in purely private labor disputes. * * * where some public

interest was thought to have become involved," words which seem intended

to repudiate the Debs case. However, the Chief Justice goes on at once

to say, "* * * whether Congress so intended or not is a question

different from the one before us now." Ibid. 272, 278.

[412] Public Law 101, 80th Cong., 1st sess., Sec. 206-210.

[413] _See_ Louis Stark in New York Times, February 4, 1949; Labor

Relations, Hearings before the Senate Committee on Labor and Public

Welfare on S. 249, 81st Cong., 1st sess., pp. 263, 285, 295, 905, 911;

Julius and Lillian Cohen, The Divine Rights of Presidents, 29 Nebraska

Law Review, p. 416, March 1950.

[414] 30 Op. Atty. Gen. 291, 292, 293.

[415] Durand _v._ Hollins, 4 Blatch. 451, 454 (1860).

[416] Published by World Peace Foundation (Boston, 1945) _See also_, for

the period 1811 to 1934, J. Reuben Clark's Memorandum as Solicitor of

the Department of State entitled Right to Protect Citizens in Foreign

Countries by Landing Forces (Government Printing Office, 1912, 1934).

The great majority of the landings were for "the simple protection of

American citizens in disturbed areas," and only about a third involved

belligerent action.

[417] 5 Moore, International Law Digest, 478-510, _passim_.

[418] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st

Sess., p. 1347.

[419] _See_ Max Farrand, Records, II, 318-319.

[420] Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952).

[421] 17 Fed. Reg. 3139-3143.

"Whereas on December 16, 1950, I proclaimed the existence of a national

emergency which requires that the military, naval, air, and civilian

defenses of this country be strengthened as speedily as possible to the

end that we may be able to repel any and all threats against our

national security and to fulfill our responsibilities in the efforts

being made throughout the United Nations and otherwise to bring about a

lasting peace; and

"Whereas American fighting men and fighting men of other nations of the

United Nations are now engaged in deadly combat with the forces of

aggression in Korea, and forces of the United States are stationed

elsewhere overseas for the purpose of participating in the defense of

the Atlantic Community against aggression; and

"Whereas the weapons and other materials needed by our armed forces and

by those joined with us in the defense of the free world are produced to

a great extent in this country, and steel is an indispensable component

of substantially all of such weapons and materials; and

"Whereas steel is likewise indispensable to the carrying out of programs

of the Atomic Energy Commission of vital importance to our defense

efforts; and

"Whereas a continuing and uninterrupted supply of steel is also

indispensable to the maintenance of the economy of the United States,

upon which our military strength depends; and

"Whereas a controversy has arisen between certain companies in the

United States producing and fabricating steel and the elements thereof

and certain of their workers represented by the United Steel Workers of

America, CIO, regarding terms and conditions of employment; and

"Whereas the controversy has not been settled through the processes of

collective bargaining or through the efforts of the Government,

including those of the Wage Stabilization Board, to which the

controversy was referred on December 22, 1951, pursuant to Executive

Order No. 10233, and a strike has been called for 12:01 A.M., April 9,

1952; and

"Whereas a work stoppage would immediately jeopardize and imperil our

national defense and the defense of those joined with us in resisting

aggression, and would add to the continuing danger of our soldiers,

sailors, and airmen engaged in combat in the field; and

"Whereas in order to assure the continued availability of steel and

steel products during the existing emergency, it is necessary that the

United States take possession of and operate the plants, facilities, and

other property of the said companies as hereinafter provided:

"Now, Therefore, by virtue of the authority vested in me by the

Constitution and laws of the United States, and as President of the

United States and Commander in Chief of the armed forces of the United

States, it is hereby ordered as follows:

"1. The Secretary of Commerce is hereby authorized and directed to take

possession of all or such of the plants, facilities, and other property

of the companies named in the list attached hereto, or any part thereof,

as he may deem necessary in the interests of national defense; and to

operate or to arrange for the operation thereof and to do all things

necessary for, or incidental to, such operation.

"2. In carrying out this order the Secretary of Commerce may act through

or with the aid of such public or private instrumentalities or persons

as he may designate; and all Federal agencies shall cooperate with the

Secretary of Commerce to the fullest extent possible in carrying out the

purposes of this order.

"3. The Secretary of Commerce shall determine and prescribe terms and

conditions of employment under which the plants, facilities, and other

properties possession of which is taken pursuant to this order shall be

operated. The Secretary of Commerce shall recognize the rights of

workers to bargain collectively through representatives of their own

choosing and to engage in concerted activities for the purpose of

collective bargaining, adjustment of grievances or other mutual aid or

protection, provided that such activities do not interfere with the

operation of such plants, facilities, and other properties.

"4. Except so far as the Secretary of Commerce shall otherwise provide

from time to time, the managements of the plants, facilities, and other

properties possession of which is taken pursuant to this order shall

continue their functions, including the collection and disbursement of

funds in the usual and ordinary course of business in the names of their

respective companies and by means of any instrumentalities used by such

companies.

"5. Except so far as the Secretary of Commerce may otherwise direct,

existing rights and obligations of such companies shall remain in full

force and effect, and there may be made, in due course, payments of

dividends on stock, and of principal, interest, sinking funds, and all

other distributions upon bonds, debentures, and other obligations, and

expenditures may be made for other ordinary corporate or business

purposes.

"6. Whenever in the judgment of the Secretary of Commerce further

possession and operation by him of any plant, facility, or other

property is no longer necessary or expedient in the interest of national

defense, and the Secretary has reason to believe that effective future

operation is assured, he shall return the possession and operation of

such plant, facility, or other property to the company in possession and

control thereof at the time possession was taken under this order.

"7. The Secretary of Commerce is authorized to prescribe and issue such

regulations and orders not inconsistent herewith as he may deem

necessary or desirable for carrying out the purposes of this order; and

he may delegate and authorize subdelegation of such of his functions

under this order as he may deem desirable. Harry S. Truman. The White

House, April 8, 1952."

[422] 343 U.S. 579, 583.

[423] Ibid. 584.

[424] 343 U.S. 579, 585-589.

[425] 2 Cr. 170 (1804).

[426] 343 U.S. 579, 660, 661.

[427] 343 U.S. 579, 684, citing 10 Annals of Congress, 619 (1800). _See

also_ p. 418.

[428] 9 Stat. 302; R.S. Sec. 5270-5279.

[429] For the controversy thereby precipitated between Hamilton

("Pacificus") and Madison (Helvidius), _see_ Edward S. Corwin, The

President's Control of Foreign Relations (Princeton University Press,

1916), Chap. I.

[430] The Act of June 5, 1794; 1 Stat. 381. The Act was the direct

outcome of suggestions made by Washington in his message of December 5,

1793. 1 Richardson 139.

[431] 22 Opins. A.G. 13 (1898); Tucker _v._ Alexandroff, 183 U.S. 424,

435 (1902). An act was passed May 27, 1921 (42 Stat. 8) which requires

presidential license for the landing and operation of cables connecting

the United States with foreign countries. Quincy Wright, The Control of

American Foreign Relations (New York, 1922) 302 fn. 75.

[432] Santiago _v._ Nogueras, 214 U.S. 260 (1909).

[433] Madsen _v._ Kinsella, 343 U.S. 341 (1952).

[434] Charlton _v._ Kelly, 229 U.S. 447 (1913). _See also_ Botiller _v._

Dominguez, 130 U.S. 238 (1889).

[435] Sinclair _v._ United States, 279 U.S. 263, 289, 297 (1929).

[436] 12 Stat. 755.

[437] Berdahl, War Powers of the Executive in the United States

(University of Illinois, 1921), 69.

[438] 343 U.S. 579, 695.

[439] 89 Cong. Rec. 3992 (1943).

[440] 57 Stat. 163.

[441] 343 U.S. 579, 697.

[442] 341 U.S. 114 (1951).

[443] _See_ Hooe _v._ United States, 218 U.S. 322, 335-336 (1910);

United States _v._ North American Co., 253 U.S. 330, 333 (1920). _Cf._

Larson _v._ Domestic and Foreign Corp., 337 U.S. 682, 701-702 (1949).

[444] 341 U.S. 114, 119.

[445] _See_ p. 486.

[446] Brief for the United States, No. 278, October Term, 1914, pp. 11,

75-77, quoted by the Chief Justice in 343 U.S. 579, 689-691. Assistant

Attorney General Knaebel's name was also on the Brief.

[447] 343 U.S. 579, 597.

[448] Ibid. 602.

[449] 343 U.S. 579, 631-632.

[450] 13 How. 115 (1852).

[451] 13 Wall. 623 (1872).

[452] 260 U.S. 327 (1922).

[453] 341 U.S. 114 (1949).

[454] 315 U.S. 203, 230 (1942).

[455] Federalist No. 64.

[456] _See also_ 40 Op. Atty. Gen. 250, 253 (1942).

[457] 343 U.S. 579, 639, 640.

[458] Ibid. 653, 654.

[459] 343 U.S. 579, 657.

[460] Ibid. 659.

[461] 2 Cr. 170 (1804).

[462] 343 U.S. 579, 662, 663.

[463] Ibid. 662.

[464] 343 U.S. 579, 678, 679.

[465] Ibid. 705.

[466] Ibid. 708-709.

[467] 4 Wall. 475 (1867).

[468] Ibid. 484.

[469] Ibid. 500-501.

[470] Kendall _v._ United States, 12 Pet. 524 (1838); United States _v._

Lee, 106 U.S. 196 (1882). It should be noted, however, that if the

President fails to act, or if he adopts a narrow construction of a

statute which he dislikes, and on this ground professes inability to

act, the only remedy available against him is impeachment.

[471] Noble _v._ Union River Logging R. Co., 147 U.S. 165 (1893);

Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912).

[472] Kendall _v._ United States, above; [Transcriber's Note: Reference

is to Footnote 470, above.] United States _v._ Schurz, 102 U.S. 378

(1880); United States ex rel. Dunlap _v._ Black, 128 U.S. 40 (1888).

_Cf._ Decatur _v._ Paulding, 14 Pet. 497 (1840); and Riverside Oil Co.

_v._ Hitchcock, 190 U.S. 316 (1903), where the rule is reiterated that

neither injunction nor mandamus will lie against an officer to control

him in the exercise of an official duty which requires the exercise of

his judgment and discretion.

[473] This was originally on the theory that the Supreme Court of the

District had inherited, via the common law of Maryland, the jurisdiction

of the King's Bench "over inferior jurisdictions and officers." 12 Pet.

at 614 and 620-621.

[474] Little _v._ Barreme, 2 Cr. 170 (1804); United States _v._ Lee,

above; [Transcriber's Note: Reference is to Footnote 470, above.]

Spaulding _v._ Vilas, 161 U.S. 483 (1896).

[475] Bell _v._ Hood, 327 U.S. 678 (1946). The decision is based on an

interpretation of 28 U.S.C. Sec. 41 (1).

[476] Mitchell _v._ Clark, 110 U.S. 633 (1884). An official action is

indemnifiable if Congress could have authorized it in the first place,

or if it was done under "imperative orders which could not be resisted,"

or "under necessity or mistake." Ibid. 640-641.

[477] Tennessee _v._ Davis, 100 U.S. 257 (1880); In re Neagle, 135 U.S.

1 (1890). _Cf._ Maryland _v._ Soper, 270 U.S. 9 (1926).

[478] 17 Op. Atty. Gen. 419 (1882). _See also_ Hinds' Precedents, III,

Sec. 2315-2318 (1907).

[479] The Belknap Case, ibid. Sec. 2445.

[480] Elliot, Debates, V, 341, 528.

[481] Ibid. IV, 375.

[482] The Federalist No. 65. For the above _see_ William S. Carpenter,

Judicial Tenure in the United States (Yale University Press, 1918),

105-106.

[483] John Quincy Adams, Memoirs, I, 321, 322 (1874).

[484] Trial of Andrew Johnson, I, (Government Printing Office, 1868),

147.

[485] Ibid. 409. Johnson and his Cabinet were much concerned over rumors

that it was the intention of his enemies in the House, following

impeachment and pending the trial, to put him under arrest and/or

suspend him from office. Gideon Welles, Diary, III, 21, 27, 50, 57, 60,

62, 151, 200, 235, 237, 238, 291, 313. But no such step was attempted.

Several state constitutions contain provisions authorizing suspension

from office in such a case.

[486] Carpenter, Judicial Tenure, 145-153.

[487] Senate proceedings in Cong. Record, vol. 80, pp. 5558-5559, (April

16, 1936).

[488] On this account, as well as because of the cumbersomeness of the

impeachment process and the amount of time it is apt to consume, it has

been suggested that a special court could, and should, be created to try

cases of alleged misbehavior in office of inferior judges of the United

States, this type of officer having furnished the great majority of

cases of impeachment under the Constitution. _See_ Memorandum on Removal

Power of Congress with Respect to the Supreme Court, Senate Judiciary

Committee, 80th Cong., 1st sess.; _also_ Burke Shartel, Federal

Judges--Appointment, Supervision, and Removal--Some Possibilities under

the Constitution, 28 Mich. L. Rev., 870-907 (May 1930). Is impeachment

the only way in which Congress, or either house thereof, is

constitutionally entitled to call the President to account for his

conduct in office? _Cf._ George Wharton Pepper, Family Quarrels, The

President, the Senate, and the House (New York, 1931), 138 ff.; and

Corwin, The President, Office and Powers (3d ed.), 411-413.

ARTICLE III

THE JUDICIAL DEPARTMENT

Section 1. The judicial power, courts, judges: Page

Characteristics and attributes of judicial power 511

"Judicial power" 511

"Shall be vested" 512

Finality of judgment 512

Taney doctrine 513

Award of execution 514

Ancillary powers 515

Contempt power; the act of 1789 515

An inherent power 515

Contempt power exalted 516

Recession of the doctrine 517

Bridges _v._ California 517

Summary punishment of contempt; misbehavior of counsel 517

Punishment of counsel; The Sacher Case 519

Contempt by disobedience of orders 520

Criminal versus civil contempts 521

Judicial power aids administrative power 521

Power to issue writs; the act of 1789 522

Common law powers of the District of Columbia Courts 522

Habeas corpus 523

Congress limits the inquisition power 523

Injunctions under the Emergency Price Control Act of 1942 525

Rule-making power and powers over process 525

Limits to the power 526

Appointment of referees, masters, and special aids 527

Power to admit and disbar attorneys 527

Organization of courts; compensation of judges 528

"One supreme court" 528

Inferior courts made and abolished 528

Abolition of the commerce court 529

Compensation 530

Diminution of salaries 530

Courts of specialized jurisdiction 531

Emergency Court of Appeals of 1942 531

Judicial review restrained 532

Legislative courts; Canter case 533

Other legislative courts 534

Powers of Congress over legislative courts 534

Status of the Court of Claims 535

A judicial paradox 536

Status of the courts of the District of Columbia.' 536

Section 2. Jurisdiction 538

Clause 1. Scope of jurisdiction 538

"Cases and controversies" 538

Two classes of "cases and controversies" 538

Adverse litigants 539

Stockholders' suits 541

Substantial interest doctrine 542

Substantial interest in suits by States 543

Abstract, contingent, and hypothetical questions 544

Political questions 546

Origin of the concept 546

Exemplifications of the doctrine 547

Recent cases 548

Advisory opinions 549

Declaratory judgments 551

Declaratory Judgment Act of 1934 551

"Case or controversy" test in declaratory judgment

proceedings 552

Cases arising under the Constitution, laws, and treaties of

the United States 553

Definition 553

Judicial review 554

Judicial review and national supremacy 554

Judicial review of acts of Congress 556

Hamilton's argument 558

Marbury _v._ Madison 559

Marshall's argument 559

Importance of Marbury _v._ Madison 560

Limits to the exercise of judicial review 561

The doctrine of "strict necessity" 562

The doctrine of political questions 562

The "reasonable doubt" doctrine 563

Exclusion of extra-constitutional tests 564

Disallowance by statutory interpretation 565

Stare decisis in constitutional law 565

Allegations of federal question 566

Corporations chartered by Congress 568

Removal from State courts of suits against federal

officials 568

Tennessee _v._ Davis 569

Supreme Court review of State court decisions 570

Suits affecting ambassadors, other public ministers, and

consuls 571

When ambassadors, etc., are affected 571

Cases of admiralty and maritime jurisdiction 572

Origin and characteristics 572

Congressional interpretation of the admiralty clause 572

Judicial approval of congressional interpretation 573

Two types of cases 573

Maritime torts 574

Prize cases, forfeitures, etc. 575

Proceedings in rem 575

Absence of a jury 576

Territorial extent of admiralty and maritime jurisdiction 576

Admiralty jurisdiction versus State power 578

Exclusive of admiralty jurisdiction 578

Concessions to State power 579

The Jensen case and its sequelae 580

Power of Congress to modify maritime law; the

"Lottawanna" 582

Cases to which the United States is a party; right of

United States to sue 584

Suits against States 584

Immunity of United States from suit 585

Waiver of immunity by Congress 586

United States _v._ Lee 587

Difficulties created by the Lee case 588

Official immunity today 589

Classification of suits against officers 590

Suits against government corporations 590

Suits between two or more States 591

Boundary disputes; the law applied 591

Modern types of suits between States 592

Cases in which the Court has declined jurisdiction 594

Problem of enforcement; Virginia _v._ West Virginia 595

Controversies between a State and citizens of another State 596

Nonjusticiable controversies 596

Jurisdiction confined to civil cases 597

Suits by a State as parens patriae; jurisdiction declined 597

Suits by a State as parens patriae; jurisdiction accepted 598

Georgia _v._ Pennsylvania Railroad 598

Controversies between citizens of different States 599

The meaning of "State," Hepburn _v._ Ellzey 599

Extension of jurisdiction by act of 1940 600

Citizenship, natural persons 600

Citizenship, corporations 601

Black and White Taxicab case 603

The law applied in diversity cases; Swift _v._ Tyson 603

Extension of the Tyson case 604

The Tyson rule protested 604

Erie Railroad _v._ Tompkins; Tyson case overruled 605

Extension of the Tompkins rule 607

Controversies between citizens of the same State claiming

lands under grants of different States 608

Controversies between a State, or the citizens thereof, and

foreign States, citizens, or subjects 609

Suits by foreign States 609

Indian tribes 610

Narrow construction of the jurisdiction 610

Clause 2. Original and appellate jurisdiction of the Supreme

Court 611

Original jurisdiction of the Supreme Court 611

An autonomous jurisdiction 611

Cannot be enlarged; Marbury _v._ Madison 612

Concurrent jurisdiction of the lower federal courts 613

Appellate jurisdiction of the Supreme Court 614

Subject to limitation by Congress 614

McCardle case 614

Power of Congress to regulate the jurisdiction of lower

federal courts 616

Martin _v._ Hunter's lessee 616

Plenary power of Congress over jurisdiction 616

Judicial power under the Emergency Price Control Act 620

Legislative control over writs 621

Injunctions in labor disputes; Norris-LaGuardia Act 621

Judicial power equated with due process of law 622

Judicial versus nonjudicial functions 623

Federal-State court relations 624

Problems raised by concurrency 624

Disobedience of Supreme Court orders by State courts 625

Worcester _v._ Georgia 625

Conflicts of jurisdiction; comity 626

Jurisdiction of the _res_ 626

State interference by injunction with federal

jurisdiction 627

Federal interference by injunction with State

jurisdiction 628

Federal injunctions against State official action 629

Ex parte Young 630

State interference by habeas corpus proceedings with federal

jurisdiction 631

Federal interference, by removal and habeas corpus 632

Comity as a principle of statutory construction 633

Comity as cooperation 634

Early use of State courts in enforcement of federal law 635

Retreat from this practice 636

Resumption of this practice 636

State obligation to enforce federal law 637

Right of foreign corporations to resort to federal courts 638

Clause 3. Trial by jury. [_See_ pp. 878-880 under

Amendment VI] 638

Section 3. Treason 638

Clause 1. Treason defined 638

Definition 638

Levying war 639

The Burr trial 640

Aid and comfort to the enemy; the Cramer Case 640

The Haupt Case 641

The Kawakita Case 643

Doubtful State of the law of Treason today 644

Clause 2. Punishment of Treason 645

Corruption of blood and forfeiture 645

JUDICIAL DEPARTMENT

Article III

Section 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. The Judges, both of the

supreme and inferior Courts, shall hold their Offices during good

Behaviour, and shall, at stated Times, receive for their Services, a

Compensation, which shall not be diminished during their Continuance in

Office.

Characteristics and Attributes of Judicial Power

"JUDICIAL POWER"

Judicial power, as Justice Miller defined it in 1891, is the power "of a

court to decide and pronounce a judgment and carry it into effect

between persons and parties who bring a case before it for decision";[1]

or in the words of the Court in Muskrat _v._ United States,[2] it is

"the right to determine actual controversies arising between adverse

litigants, duly instituted in courts of proper jurisdiction."[3]

Although the terms "judicial power" and "jurisdiction" are frequently

used interchangeably and jurisdiction is defined as the power to hear

and determine the subject matter in controversy between parties to a

suit,[4] or as the "power to entertain the suit, consider the merits and

render a binding decision thereon,"[5] the cases and commentaries

support and, for that matter, necessitate a distinction between the two

concepts. Jurisdiction is the authority of a court to exercise judicial

power in a specific case and is, of course, a prerequisite to the

exercise of judicial power, which is the totality of powers a court

exercises when it assumes jurisdiction and hears and decides a case.[6]

Included with the general power to decide cases are the ancillary powers

of courts to punish for contempts of their authority,[7] to issue writs

in aid of jurisdiction when authorized by statute;[8] to make rules

governing their process in the absence of statutory authorizations or

prohibitions;[9] inherent equitable powers over their own process to

prevent abuse, oppression and injustice, and to protect their own

jurisdiction and officers in the protection of property in custody of

law;[10] the power to appoint masters in chancery, referees, auditors,

and other investigators;[11] and to admit and disbar attorneys.[12]

"SHALL BE VESTED"

The distinction between judicial power and jurisdiction is especially

pertinent to the meaning of the words "shall be vested." Whereas all of

the judicial power of the United States is vested in the Supreme Court

and the lower federal judiciary, neither has ever been vested with all

the jurisdiction they are capable of receiving under article III. Except

for the original jurisdiction of the Supreme Court, which flows directly

from the Constitution,[13] two prerequisites to jurisdiction must be

present. First, the Constitution must have given the courts the capacity

to receive it; second, an act of Congress must have conferred it.[14]

FINALITY OF JUDGMENT

Since 1792 the federal courts have emphasized finality of judgment as an

essential attribute of judicial _power_. In Hayburn's Case[15] a motion

for mandamus was filed in the Supreme Court to direct the Circuit Court

for the District of Pennsylvania to act upon a petition for a pension

under the pensions act which placed the administration of pensions in

the judges of the federal courts, but which made the action of the

courts on application subject to review by Congress and the Secretary of

War. The Court took the case under advisement, but Congress changed the

law by the act of February 28, 1793, before decision was rendered. In

view of the attitude of the circuit courts of the United States for the

districts of New York, North Carolina and Pennsylvania there can be no

doubt what the decision would have been. The judges of the circuit

courts in each of these districts refused to administer the pensions,

because the revisory powers of Congress and the Secretary of War were

regarded as making the administration of the law nonjudicial in nature.

At the time of this episode, Chief Justice Jay and Justice Cushing were

members of the Circuit Court in the New York district, Justices Wilson

and Blair in Pennsylvania and Justice Iredell in North Carolina.

The Taney Doctrine

On these foundations Chief Justice Taney posthumously erected finality

into a judicial absolute.[16] The original act creating the Court of

Claims provided for an analogous procedure with appeals to the Supreme

Court after which judgments in favor of claimants were to be referred to

the Secretary of the Treasury for payments out of the general

appropriation for the payment of private claims. However, section 14 of

the act provided that no money should be paid out of the Treasury for

any claims "till after an appropriation therefor shall be estimated by

the Secretary of the Treasury." In Gordon _v._ United States,[17] the

Court refused to hear an appeal, probably for the reasons given in Chief

Justice Taney's opinion which he did not deliver because of his death

before the Court reconvened but which was published many year later.[18]

In any event the reiteration of Taney's opinion in subsequent cases made

much of it good law. Because the judgment of the Court of Claims and the

Supreme Court depended for execution upon future action of the Secretary

of the Treasury and of Congress, the Chief Justice regarded it as

nothing more than a certificate of opinion and in no sense a judicial

judgment. Congress, therefore, could not authorize the Supreme Court to

take appeals from an auditor or require it to express an opinion in a

case where its judicial power could not be exercised, where its judgment

would not be final and conclusive upon the parties, and where processes

of execution were not awarded to carry it into effect. The Chief Justice

then proceeded to formulate a rule, repeated in many subsequent cases

until modified in 1927 and reversed in 1933, to the effect that the

award of execution is a part and an essential part of every judgment

passed by a court exercising judicial powers; it was no judgment in the

legal sense of the term without it.[19] This rule was given rigid

application in Liberty Warehouse Co. _v._ Grannis,[20] where the Supreme

Court sustained a district court in refusing to entertain a declaratory

proceeding for lack of jurisdiction because such a proceeding was

regarded as nonjudicial. One year later, the Court applied the extreme

of the rule in Liberty Warehouse _v._ Burley Tobacco Growers

Association,[21] when it ruled that it could exercise no appellate

jurisdiction in a declaratory proceeding in a State court.

Award of Execution

Meanwhile in 1927 the Supreme Court began to qualify its insistence upon

an award of execution, holding in Fidelity National Bank and Trust Co.

_v._ Swope[22] that an award of execution is not an indispensable

adjunct of the judicial process. This ruling prepared the way for

Nashville, Chattanooga and St. Louis R. Co. _v._ Wallace[23] which

reversed the decision in the Grannis case, sustained an appeal from a

State court to the Supreme Court in a declaratory proceeding, and

effectively interred the rule that award of execution is essential to

judicial power. Regardless, nevertheless, of the fate of an award of

execution, the rule that finality of judgment is an essential attribute

of judicial power remains unimpaired.

Ancillary Powers

THE CONTEMPT POWER; THE ACT OF 1789

The summary power of the courts of the United States to punish contempts

of their authority had its origin in the law and practice of England

where disobedience of court orders was regarded as contempt of the King

himself and attachment was a prerogative process derived from presumed

contempt of the sovereign.[24] By the latter part of the eighteenth

century summary power to punish was extended to all contempts whether

committed in or out of court.[25] In the United States, the Judiciary

Act of 1789 in section 17[26] conferred power on all courts of the

United States "to punish by fine or imprisonment, at the discretion of

said courts, all contempts of authority in any cause or hearing before

the same." The only limitation placed on this power was that summary

attachment was made a negation of all other modes of punishment. The

abuse of this extensive power led, following the unsuccessful

impeachment of Judge James H. Peck of the Federal District Court of

Missouri, to the passage of the act of 1831 limiting the power of the

federal courts to punish contempts to misbehavior in the presence of the

courts, "or so near thereto as to obstruct the administration of

justice," to the misbehavior of officers of courts in their official

capacity, and to disobedience or resistance to any lawful writ, process

or order of the court.[27]

An Inherent Power

The validity of the act of 1831 was sustained forty-three years later in

Ex parte Robinson,[28] where Justice Field for the Court propounded

principles full of potentialities for conflict. He declared: "The power

to punish for contempts is inherent in all courts; its existence is

essential to the preservation of order in judicial proceedings, and to

the enforcement of the judgments, orders, and writs of the courts, and

consequently to the due administration of justice. The moment the courts

of the United States were called into existence and invested with

jurisdiction over any subject, they become possessed of this power."

Expressing doubts concerning the validity of the act as to the Supreme

Court, he declared, however, there could be no question of its validity

as applied to the lower courts on the ground that they are created by

Congress and that their "powers and duties depend upon the act calling

them into existence, or subsequent acts extending or limiting their

jurisdiction."[29] With the passage of time, later adjudications,

especially after 1890, came to place more emphasis on the inherent power

of courts to punish contempts than upon the power of Congress to

regulate summary attachment. By 1911 the Court was saying that the

contempt power must be exercised by a court without referring the issues

of fact or law to another tribunal or to a jury in the same

tribunal.[30] In Michaelson _v._ United States[31] the Supreme Court

intentionally placed a narrow interpretation upon those sections of the

Clayton Act[32] relating to punishment for contempt of court by

disobedience to injunctions in labor disputes. The sections in question

provided for a jury trial upon the demand of the accused in contempt

cases in which the acts committed in violation of district court orders

also constituted a crime under the laws of the United States or of those

of the State where they were committed. Although Justice Sutherland

reaffirmed earlier rulings establishing the authority of Congress to

regulate the contempt power, he went on to qualify this authority and

declared that "the attributes which inhere in that power [to punish

contempt] and are inseparable from it can neither be abrogated nor

rendered practically inoperative." The Court mentioned specifically "the

power to deal summarily with contempts committed in the presence of the

courts or so near thereto as to obstruct the administration of justice,"

and the power to enforce mandatory decrees by coercive means.[33]

The Contempt Power Exalted

The phrase "in the presence of the Court or so near thereto as to

obstruct the administration of justice" was interpreted in Toledo

Newspaper Co. _v._ United States[34] so broadly as to uphold the action

of a district court judge in punishing for contempt a newspaper for

publishing spirited editorials and cartoons on questions at issue in a

contest between a street railway company and the public over rates. A

majority of the Court held that the test to be applied in determining

the obstruction of the administration of justice is not the actual

obstruction resulting from an act, but "the character of the act done

and its direct tendency to prevent and obstruct the discharge of

judicial duty." Similarly the test of whether a particular act is an

attempt to influence or intimidate a court is not the influence exerted

upon the mind of a particular judge but "the reasonable tendency of the

acts done to influence or bring about the baleful result * * * without

reference to the consideration of how far they may have been without

influence in a particular case."[35] In Craig _v._ Hecht[36] these

criteria were applied to sustain the imprisonment of the comptroller of

New York City for writing and publishing a letter to a public service

commissioner which criticized the action of a United States district

judge in receivership proceedings.

Recession of the Doctrine

The decision in the Toledo Newspaper case did not follow earlier

decisions interpreting the act of 1831 and was grounded on historical

error. For these reasons it was reversed in Nye _v._ United States[37]

and the theory of constructive contempt based on the "reasonable

tendency" rule rejected in a proceeding wherein defendants in a civil

suit, by persuasion and the use of liquor, induced a plaintiff feeble in

mind and body to ask for dismissal of the suit he had brought against

them. The events in the episode occurred more than 100 miles from where

the Court was sitting, and were held not to put the persons responsible

for them in contempt of court.

Bridges _v._ California

Although Nye _v._ United States is exclusively a case of statutory

construction, it is significant from a constitutional point of view in

that its reasoning is contrary to that of earlier cases narrowly

construing the act of 1831 and asserting broad inherent powers of courts

to punish contempts independently of and contrary to Congressional

regulation of this power. Bridges _v._ California,[38] though dealing

with the power of State courts to punish contempts, in the face of the

due process clause of the Fourteenth Amendment, is significant for the

dictum of the majority that the contempt power of all courts, federal as

well as State, is limited by the guaranty of the First Amendment against

interference with freedom of speech or of the press.

Summary Punishment of Contempt; Misbehavior of Counsel

There have been three notable cases within the last half century raising

questions concerning the power of a trial judge to punish counsel

summarily for alleged misbehavior in the course of a trial. In _ex

parte_ Terry,[39] decided in 1888, Terry had been jailed by the United

States Circuit Court of California for assaulting in its presence a

United States marshal. The Supreme Court denied his petition for a writ

of habeas corpus. In Cooke _v._ United States,[40] however, decided in

1925, the Court remanded for further proceedings a judgment of the

United States Circuit Court of Texas sustaining the judgment of a United

States District judge sentencing to jail an attorney and his client for

presenting the judge a letter which impugned his impartiality with

respect to their case, still pending before him. Distinguishing the case

from that of Terry, Chief Justice Taft, speaking for the unanimous

Court, said: "The important distinction * * * is that this contempt was

not in open court. * * * To preserve order in the court room for the

proper conduct of business, the court must act instantly to suppress

disturbance or violence or physical obstruction or disrespect to the

court when occurring in open court. There is no need of evidence or

assistance of counsel before punishment, because the court has seen the

offense. Such summary vindication of the court's dignity and authority

is necessary. It has always been so in the courts of the common law and

the punishment imposed is due process of law."[41] The Chief Justice

then added: "Another feature of this case seems to call for remark. The

power of contempt which a judge must have and exercise in protecting the

due and orderly administration of justice and in maintaining the

authority and dignity of the court is most important and indispensable.

But its exercise is a delicate one and care is needed to avoid arbitrary

or oppressive conclusions. This rule of caution is more mandatory where

the contempt charged has in it the element of personal criticism or

attack upon the judge. The judge must banish the slightest personal

impulse to reprisal, but he should not bend backward and injure the

authority of the court by too great leniency. The substitution of

another judge would avoid either tendency but it is not always possible.

Of course where acts of contempt are palpably aggravated by a personal

attack upon the judge in order to drive the judge out of the case for

ulterior reasons, the scheme should not be permitted to succeed. But

attempts of this kind are rare. All of such cases, however, present

difficult questions for the judge. All we can say upon the whole matter

is that where conditions do not make it impracticable, or where the

delay may not injure public or private right, a judge called upon to act

in a case of contempt by personal attack upon him, may, without

flinching from his duty, properly ask that one of his fellow judges take

his place. Cornish _v._ United States, 299 F. 283, 285; Toledo Newspaper

Co. _v._ United States, 237 F. 986, 988. The case before us is one in

which the issue between the judge and the parties had come to involve

marked personal feeling that did not make for an impartial and calm

judicial consideration and conclusion, as the statement of the

proceedings abundantly shows."[42]

Contempt Power: Punishment of Counsel; Sacher Case

This case[43] is an outgrowth of the trial of the eleven Communists,[44]

in which Sacher et al. were counsel for the defense. The facts of the

case were as follows: On receiving the verdict of conviction of the

defendants, trial Judge Medina at once issued a certificate under Rule

42 (a) of Federal Rules of Criminal Procedure, finding counsel guilty of

criminal contempt and imposing various jail terms up to six months. The

immediate question raised was whether the contempt charged was one which

the judge was authorized to determine for himself, or one which under

Rule 42 (b) could only be passed upon by another judge and after notice

and hearing; but behind this issue loomed the same constitutional issue

which was dealt with by the Court in the Cooke case, of the requirements

of due process of law. The Court sustained the Circuit Court of Appeals

in affirming the convictions and sentences, at the same time, however,

reversing some of Judge Medina's specifications of contempt, one of

these being the charge that the petitioners entered into an agreement

deliberately to "impair my health." "We hold," said Justice Jackson,

speaking for the majority, "that Rule 42 allows the trial judge, upon

the occurrence in his presence of a contempt, immediately and summarily

to punish it, if, in his opinion, delay will prejudice the trial. We

hold, on the other hand, that if he believes the exigencies of the trial

require that he defer judgment until its completion he may do so without

extinguishing his power. * * * We are not unaware or unconcerned that

persons identified with unpopular causes may find it difficult to enlist

the counsel of their choice. But we think it must be ascribed to causes

quite apart from fear of being held in contempt, for we think few

effective lawyers would regard the tactics condemned here as either

necessary or helpful to a successful defense. That such clients seem to

have thought these tactics necessary is likely to contribute to the

bar's reluctance to appear for them rather more than fear of contempt.

But that there may be no misunderstanding, we make clear that this

Court, if its aid be needed, will unhesitatingly protect counsel in

fearless, vigorous and effective performance of every duty pertaining to

the office of the advocate on behalf of any person whatsoever. But it

will not equate contempt with courage or insults with independence. It

will also protect the processes of orderly trial, which is the supreme

object of the lawyer's calling."[45]

Contempt by Disobedience of Orders

Disobedience of injunction orders, particularly in labor disputes, has

been a fruitful source of cases dealing with contempt of court. In

United States _v._ United Mine Workers[46] the Court held that

disobedience of a temporary restraining order issued for the purpose of

maintaining existing conditions, pending the determination of the

court's jurisdiction, is punishable as criminal contempt where the issue

is not frivolous but substantial. Secondly, the Court held that an order

issued by a court with jurisdiction over the subject matter and person

must be obeyed by the parties until it is reversed by orderly and proper

proceedings, even though the statute under which the order is issued is

unconstitutional. Thirdly, on the basis of United States _v._ Shipp,[47]

it was held that violations of a court's order are punishable as

criminal contempt even though the order is set aside on appeal as in

excess of the court's jurisdiction or though the basic action has become

moot. Finally, the Court held that conduct can amount to both civil and

criminal contempt, and the same acts may justify a court in resorting to

coercive and to punitive measures, which may be imposed in a single

proceeding.

Criminal Versus Civil Contempts

Prior to the United Mine Workers Case, the Court had distinguished

between criminal and civil contempts on the basis of the vindication of

the authority of the courts on the one hand and the preservation and

enforcement of the rights of the parties on the other. A civil contempt

consists of the refusal of a person in a civil case to obey a mandatory

order. It is incomplete in nature and may be purged by obedience to the

Court order. In criminal contempt, however, the act of contempt has been

completed, punishment is imposed to vindicate the authority of the

Court, and a person cannot by subsequent action purge himself of such

contempt.[48] In a dictum in Ex parte Grossman,[49] Chief Justice Taft,

while holding for the Court on the main issue that the President may

pardon a criminal contempt, declared that he may not pardon a civil

contempt. In an analogous case, the Court was emphatic in a dictum that

Congress cannot require a jury trial where the contemnor has failed to

perform a positive act for the relief of private parties.[50]

Judicial Power Aids Administrative Power

Proceedings to enforce the orders of administrative agencies and

subpoenas issued by them to appear and produce testimony have become

increasingly common since the leading case of Interstate Commerce

Commission _v._ Brimson,[51] where it was held that the contempt power

of the courts might by statutory authorization be utilized in aid of the

Interstate Commerce Commission in enforcing compliance with its orders.

In 1947 a proceeding to enforce a _subpoena duces tecum_ issued by the

Securities and Exchange Commission during the Course of an investigation

was ruled to be civil in character on the ground that the only sanction

was a penalty designed to compel obedience. The Court then enunciated

the principle that where a fine or imprisonment imposed on the contemnor

is designed to coerce him to do what he has refused to do, the

proceeding is one for civil contempt.[52]

POWER TO ISSUE WRITS; THE ACT OF 1789

From the beginning of government under the Constitution of 1789 Congress

has assumed under the necessary and proper clause, its power to

establish inferior courts, its power to regulate the jurisdiction of

federal courts and the power to regulate the issuance of writs. The

Thirteenth section of the Judiciary Act of 1789 authorized the circuit

courts to issue writs of prohibition to the district courts, and the

Supreme Court to issue such writs to the circuit courts. The Supreme

Court was also empowered to issue writs of mandamus "in cases warranted

by the principles and usages of law, to any courts appointed, or persons

holding office, under the authority of the United States."[53] Section

14 provided that all courts of the United States should "have power to

issue writs of _scire facias_, _habeas corpus_, and all other writs not

specially provided for by statute, which may be necessary for the

exercise of their respective jurisdictions, and agreeable to the

principles and usages of law."[54] Issuance of the writ of _habeas

corpus_ was limited in that it was to extend only to persons in custody

under or by color of authority of the United States. Although the act of

1789 left the power over writs subject largely to the common law, it is

significant as a reflection of the belief, in which the courts have on

the whole concurred, that an act of Congress is necessary to confer

judicial power to issue writs.

Common Law Powers of the District of Columbia Courts

That portion of section 13 which authorized the Supreme Court to issue

writs of mandamus in the exercise of its original jurisdiction was held

invalid in Marbury _v._ Madison,[55] as an unconstitutional enlargement

of the Supreme Court's original jurisdiction. After two more futile

efforts to obtain a writ of mandamus, in cases in which the Court found

that power to issue the writ had not been vested by statute in the

courts of the United States except in aid of already existing

jurisdiction,[56] a litigant was successful in Kendall _v._ United

States ex rel. Stokes[57] in finding a court which would take

jurisdiction in a mandamus proceeding. This was the circuit court of the

United States for the District of Columbia which was held to have

jurisdiction, on the theory that the common law, in force in Maryland

when the cession of that part of the State which became the District of

Columbia was made to the United States, remained in force in the

District. At an early time, therefore, the federal courts established

the rule that mandamus can be issued only when authorized by a

constitutional statute and within the limits imposed by the common law

and the separation of powers.

Habeas Corpus

Although the writ of _habeas corpus_ has something of a special status

by virtue of article I, section 9, paragraph 2, the power of a specific

court to issue the writ has long been held to have its authorization

only in written law.[58] In Ex parte Yerger,[59] where the petitioner

was held in custody by the military authorities under the Reconstruction

Acts, the Court, referring to the prohibition against the suspension of

the writ of _habeas corpus_, clearly indicated that Congress is not

bound to provide for the protection of federal rights by investing the

federal courts with jurisdiction to protect them. Furthermore, the case

also incorporates the rule that power to issue the writ may be withdrawn

even in pending cases.[60] The rules pertaining to mandamus and _habeas

corpus_ are applicable to the other common law and statutory writs, the

power to issue which, though judicial in nature, must be derived from

the statutes and cannot go beyond them.

Congress Limits the Inquisition Power

Although the speculations of some publicists and some judicial dicta[61]

support the idea of an inherent power of the federal courts sitting in

equity to issue injunctions independently of statutory limitations,

neither the course taken by Congress nor the specific rulings of the

Supreme Court support any such principle. Congress has repeatedly

exercised its power to limit the use of the injunction in the federal

courts. The first limitation on the equity jurisdiction of the federal

courts is to be found in section 16 of the Judiciary Act of 1789, which

provided that no equity suit should be maintained where there was a full

and adequate remedy at law. Although this provision did no more than

declare a pre-existing rule long applied in chancery courts,[62] it did

assert the power of Congress to regulate the equity powers of the

federal courts. The act of March 2, 1793,[63] prohibited the issuance of

any injunction by any court of the United States to stay proceedings in

State courts except where such injunctions may be authorized by any law

relating to bankruptcy proceedings. In subsequent statutes Congress has

prohibited the issuance of injunctions in the federal courts to restrain

the collection of taxes;[64] provided for a three-judge court, as a

prerequisite to the issuance of injunctions to restrain the enforcement

of State statutes for unconstitutionality,[65] for enjoining federal

statutes for unconstitutionality,[66] and for enjoining orders of the

Interstate Commerce Commission;[67] limited the power to issue

injunctions restraining rate orders of State public utility

commissions,[68] and the use of injunctions in labor disputes;[69] and

placed a very rigid restriction of the power to enjoin orders of the

administrator under the Emergency Price Control Act.[70]

All of these restrictions have been sustained by the Supreme Court as

constitutional and applied with varying degrees of thoroughness. The

Court has made exceptions to the application of the prohibition against

the stay of proceedings in State courts,[71] but has on the whole

adhered to the statute. The exceptions raise no constitutional issues,

and the later tendency is to contract the scope of the exceptions.[72]

In Duplex Printing Company _v._ Deering,[73] the Supreme Court placed a

narrow construction upon the labor provisions of the Clayton Act and

thereby contributed in part to the more extensive restriction by

Congress of the use of injunctions in labor disputes in the

Norris-LaGuardia Act of 1932 which has not only been declared

constitutional,[74] but has been applied liberally,[75] and in such a

manner as to repudiate the notion of an inherent power to issue

injunctions contrary to statutory provisions.

Injunctions Under the Emergency Price Control Act of 1942

Lockerty _v._ Phillips[76] justifies the same conclusion. Here the

validity of the special appeals procedure of the Emergency Price Control

Act of 1942 was sustained. This act provided for a special Emergency

Court of Appeals which, subject to review by the Supreme Court, was

given exclusive jurisdiction to determine the validity of regulations,

orders, and price schedules issued by the Office of Price

Administration. The Emergency Court and the Emergency Court alone was

permitted to enjoin regulations or orders of OPA, and even it could

enjoin such orders only after finding that the order was not in

accordance with law, or was arbitrary or capricious. The Emergency Court

was expressly denied power to issue temporary restraining orders or

interlocutory decrees; and in addition the effectiveness of any

permanent injunction it might issue was to be postponed for thirty days.

If review was sought in the Supreme Court by certiorari, effectiveness

was to be postponed until final disposition. A unanimous court speaking

through Chief Justice Stone declared that there "is nothing in the

Constitution which requires Congress to confer equity jurisdiction on

any particular inferior federal court." All federal courts, other than

the Supreme Court, it was asserted, derive their jurisdiction solely

from the exercise of the authority to ordain and establish inferior

courts conferred on Congress by article III, Sec. 1, of the Constitution.

This power, which Congress is left free to exercise or not, was held to

include the power "'of investing them with jurisdiction either limited,

concurrent, or exclusive, and of withholding jurisdiction from them in

the exact degrees and character which to Congress may seem proper for

the public good.'"[77] Although the Court avoided passing upon the

constitutionality of the prohibition against interlocutory decrees, the

language of the Court was otherwise broad enough to support it, as was

the language of Yakus _v._ United States[78] which sustained a different

phase of the special procedure for appeals under the Emergency Price

Control Act.

THE RULE-MAKING POWER AND POWERS OVER PROCESS

Among the incidental powers of courts is that of making all necessary

rules governing their process and practice and for the orderly conduct

of their business.[79] However, this power too is derived from the

statutes and cannot go beyond them. The landmark case is Wayman _v._

Southard[80] which sustained the validity of the process acts of 1789

and 1792 as a valid exercise of authority under the necessary and proper

clause. Although Chief Justice Marshall regarded the rule-making power

as essentially legislative in nature, he ruled that Congress could

delegate to the courts the power to vary minor regulations in the

outlines marked out by the statute. Fifty-seven years later in Fink

_v._ O'Neil,[81] in which the United States sought to enforce by summary

process the payment of a debt, the Supreme Court ruled that under the

process acts the law of Wisconsin was the law of the United States and

hence the Government was required to bring a suit, obtain a judgment,

and cause execution to issue. Justice Matthews for a unanimous Court

declared that the courts have "no inherent authority to take any one of

these steps, except as it may have been conferred by the legislative

department; for they can exercise no jurisdiction, except as the law

confers and limits it."

Limits to the Power

The principal function of court rules is that of regulating the practice

of courts as regards forms, the operation and effect of process, and the

mode and time of proceedings. However, rules are sometimes employed to

state in convenient form principles of substantive law previously

established by statutes or decisions. But no such rule "can enlarge or

restrict jurisdiction. Nor can a rule abrogate or modify the substantive

law." This rule is applicable equally to courts of law, equity, and

admiralty, to rules prescribed by the Supreme Court for the guidance of

lower courts, and to rules "which lower courts make for their own

guidance under authority conferred."[82] As incident to the judicial

power, courts of the United States possess inherent authority to

supervise the conduct of their officers, parties, witnesses, counsel,

and jurors by self-preserving rules for the protection of the rights of

litigants and the orderly administration of justice.[83]

The courts of the United States possess inherent equitable powers over

their process to prevent abuse, oppression and injustice, and to protect

their jurisdiction and officers in the protection of property in the

custody of law.[84] Such powers are said to be essential to and inherent

in the organization of courts of justice.[85] The courts of the United

States also possess inherent power to amend their records, correct the

errors of the clerk or other court officers, and to rectify defects or

omissions in their records even after the lapse of a term, subject,

however, to the qualification that the power to amend records conveys no

power to create a record or re-create one of which no evidence

exists.[86]

APPOINTMENT OF REFEREES, MASTERS, AND SPECIAL AIDS

The administration of insolvent enterprises, investigations into the

reasonableness of public utility rates, and the performance of other

judicial functions often require the special services of masters in

chancery, referees, auditors, and other special aids. The practice of

referring pending actions to a referee was held in Heckers _v._

Fowler[87] to be coeval with the organization of the federal courts. In

the leading case of Ex parte Peterson[88] a United States district court

appointed an auditor with power to compel the attendance of witnesses

and the production of testimony. The Court authorized him to conduct a

preliminary investigation of facts and file a report thereon for the

purpose of simplifying the issues for the jury. This action was neither

authorized nor prohibited by statute. In sustaining the action of the

district judge, Justice Brandeis, speaking for the Court, declared:

"Courts have (at least in the absence of legislation to the contrary)

inherent power to provide themselves with appropriate instruments

required for the performance of their duties. * * * This power includes

authority to appoint persons unconnected with the Court to aid judges in

the performance of specific judicial duties, as they may arise in the

progress of a cause."[89] The power to appoint auditors by federal

courts sitting in equity has been exercised from their very beginning,

and here it was held that this power is the same whether the Court sits

in law or equity.

THE POWER TO ADMIT AND DISBAR ATTORNEYS

Subject to general statutory qualifications for attorneys, the power of

the federal courts to admit and disbar attorneys rests on the common law

from which it was originally derived. According to Chief Justice Taney,

it was well settled by the common law that "it rests exclusively with

the Court to determine who is qualified to become one of its officers,

as an attorney and counsellor, and for what cause he ought to be

removed." Such power, he made clear, however, "is not an arbitrary and

despotic one, to be exercised at the pleasure of the Court, or from

passion, prejudice, or personal hostility; but it is the duty of the

Court to exercise and regulate it by a sound and just judicial

discretion, whereby the rights and independence of the bar may be as

scrupulously guarded and maintained by the Court, as the right and

dignity of the Court itself."[90] The Test-Oath Act of July 2, 1862,

which purported to exclude former Confederates from the practice of law

in the federal courts, was invalidated in Ex parte Garland.[91] In the

course of his opinion for the Court, Justice Field discussed generally

the power to admit and disbar attorneys. The exercise of such a power,

he declared, is judicial power. The attorney is an officer of the Court

and though Congress may prescribe qualifications for the practice of

law in the federal courts, it may not do so in such a way as to inflict

punishment contrary to the Constitution or to deprive a pardon of the

President of its legal effect.[92]

Organization of Courts, Tenure and Compensation of Judges

"ONE SUPREME COURT"