[173] United States v. Schooner Peggy, 1 Cr. 103 (1801).

[174] Foster v. Neilson, 2 Pet. 253 (1829).

[175] United States v. Percheman, 7 Pet. 51 (1833).

[176] Willoughby, On the Constitution, I, (2d ed.), 555.

[177] 288 U.S. 102 (1933).

[178] Ibid. 107-122.

[179] 124 U.S. 190 (1888).

[180] It is arguable that the maximum leget posteriores is not the most eligible rule for determining conflicts between "laws of the United States * * * made in pursuance thereof" (i.e. of the Constitution) and "treaties made * * * under the authority of the United States". It may be that the former, being mentioned immediately after "this Constitution" and before "treaties," are entitled always to prevail over the latter, just as both acts of Congress and treaties yield to the Constitution.

[181] 1 Stat. 578.

[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.