§ 30. Governmental powers.

It will be well to state for discussion a few definite examples of the sort of thing that governmental power is. The Emulous, 1 Gall. 563 (1813), will serve as a first case. This was a prize allegation, filed by the United States against five hundred and fifty tons of pine timber, part of the cargo of the ship Emulous, which was seized as property of the British enemy in the harbor of New Bedford. The seizure was objected to as not authorized by public authority; and if that were so, of course the action was void, since even in time of war private citizens cannot acquire to themselves a title to hostile property; if they depredate upon an enemy, they are at their peril.

STORY, J., stated his conclusion in this way: The question is, whether Congress have authorized the seizure of enemy's property afloat in our ports. The act of June 18th, 1812, is in very general terms, declaring war against Great Britain, and authorizing the Presi dent to employ the public forces to carry it into effect. Independent of such express authority, I think that, as the Executive of the nation, he must, as an incident to his office, have a right to employ all the usual and customary means acknowledged in war, to carry it into effect. It seems to follow that the Executive may authorize the capture of all enemy's property wherever

Lynde, 11 Wall. 643; In Re Baiz, 135 U. S. 403; Benson v. United States, 146 U. S. 331; Terlinden v. Ames, 184 U. S. 288; United States v. Blaine, 139 U. S. 306; Tennessee, etc., R. Co. v. Moore, 36 Ala. 371; Land Co. v. Routt, 17 Colo. 156; People v. Bissell, 19 Ill. 229; State v. Warmoth, 22 La. Ann. 1; Magruder v. Swann, 25 Md. 173; People v. Governor, 29 Mich. 320; State v. Chase, 5 Oh. St. 528; Mauran v. Smith, 8 R. I. 192.

by the law of nations it may be lawfully seized. It would be strange indeed, if the Executive could not authorize, or ratify a capture in our own ports, unless by granting a commission to a public or private ship. I am not bold enough to interpose a limitation, where Congress have not chosen to make one; and I hold, that by the act declaring war, the Executive may authorize all captures which, by the modern law of nations, are permitted and approved.

To repeat a fundamental conception, when the administration acts within its sphere its action is governmental action. It is not possible, therefore, for another co-ordinate department, as the judiciary, to enter upon any review of such action. One of the leading cases in the establishment of this as one of the principal rules of administrative law was Georgia v. Stanton, 6 Wall. 50 (1867). This was a bill in equity filed by one of the states to enjoin the Secretary of War, the General of the Army, and one Major General from carrying into execution the several, provisions of the acts known as Reconstruction Acts of 2nd and 23rd March, 1867. Both of these acts had been passed despite the President's veto, upon the ground of their unconstitutionality. The ground was that such execution would annul and totally abolish the existing state government; and that, unless enjoined, the executive department would carry such acts into execution.

The bill was upon its filing vehemently opposed. The Supreme Court upon the argument dismissed the bill. A portion of the opinion of Mr. Justice CLIFFORD follows: It is urged that the matters involved and presented for adjudication are political and not judicial,

Adm. Law-8.

and therefore not subject to judicial cognizance. This distinction results from the organization of the government in which are three great departments, executive, legislative and judicial; and from the assignment and limitation of the powers of each by the Constitution. The judicial power is vested in one Supreme Court and in such inferior courts as Congress may deign to establish. The political power of the government is in the other two departments. The distinction between judicial and political power is generally acknowledged in the jurisprudence both of England and this country. The propriety of such interposition by the courts may well be questioned. It savors too much of the exercise of political power to be within the province of the judicial department. We do not claim for this court the exercise of jurisdiction upon any matter properly falling under the denomination of political power that belongs to another branch of the government. The protection and enforcement of many rights secured by treaties most certainly do not belong to the judiciary. The prayers for relief call for the judgment of the court upon political questions and involve rights of political character. The substance of this opinion, it is clear, is that governmental matters should not be reviewed by the courts.23

23 GOVERNMENTAL POWERS.-Musgrave v. Pulido, 5 App. Cas. 102; Mississippi v. Johnson, 4 Wall. 500; Georgia v. Stanton, 6 Wall. 77; Keim v. United States, 177 U. S. 292; Tennessee, etc., R. R. v. Moore, 36 Ala. 371; Hawkins v. Governor, 1 Ark. 570; Ex parte Shrader, 33 Cal. 279; Land Co. v. Routt, 17 Colo. 156; State v. Staub, 61 Conn. 568; McWhorter v. Pensacola R. R., 24 Fla. 417; People v. Secretary of State, 58 Ill. 90; Hovey v. State, 127 Ind. 588; Martin v. Ingham, 38 Kan. 641; State v. Fisher, 26 La. Ann. 537; Worthington v. Scribner, 109 Mass. 487; People v. Hurl

§ 31. Domestic.

A further case in this doctrine is Martin v. Mott, 12 Wheat. 19 (1827). For in this case the very basis of executive functions is exposed. In March of 1814 the President called upon the militia of New York at a time of imminent danger of invasion. Mott refused to respond to the orders; he was at once tried and fined; later his goods were taken to satisfy the sentence; and now he seeks to recover in replevin. The justification of the officers who have taken the goods is public authority, and in particular, the orders issuing from the President. Mott claimed that the officer must show further justification in fact, as the event proved.

Mr. Justice STORY again delivered the opinion: By whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question upon which every officer to whom the orders of the President are addressed may decide for himself, and equally open to be contested by every militia man who shall refuse to obey the orders of the President? We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. The power itself is to be exercised upon sudden emergencies, upon great questions of state and under circumstances which may be vital to the existence of the Union. These powers must be so construed as to the modes of their exercise as not

but, 24 Mich. 63; Vicksburg R. R. v. Lowry, 61 Miss. 102; People v. Parker, 3 Neb. 409; Mauran v. Smith, 8 R. I. 192; Commonwealth v. Henry, 49 Pa. St. 530; Slack v. Jacob, 8 W. Va. 612.

to defeat the great end in view. It is not necessary in such a case that the particular exigency actually existed. It is sufficient that the President has actually determined it; and all other persons are bound by his decision.

A further illustration of the position of the executive in his executive powers is seen in Hartranft's Appeal, 85 Pa. St. 433 (1877). These proceedings followed upon the labor disturbances of 1877 in Pennsyl vania. Portions of the National Guard of the state were sent by the Governor under the charge of their officers to protect the railroads in moving their trains. A collision took place between the soldiers and the strikers and during the progress of the riot a number on both sides were killed or wounded. The grand jury later took the matter up and in the course of the investigation subpoenas were issued to the Governor and to the high militia officers, all of whom refused to attend. The present motion was for the award of compulsory process to compel them to testify. The Attorney-General filed a paper setting forth that all the persons mentioned had acted throughout in their official character.

Whether that stopped such an inquiry as this is the question; Mr. Justice GORDON ruled that it did: In order to simplify matters we may treat this case just as though the process first and last were against the Governor alone; for if he is exempt from attachment because of this privilege, his immunity in such a matter protects his subordinates and agents. The general principle is that when the law vests any person with the power to do an act, at the same time constituting a judge of when the act may be done, and contemplating