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THE EXECUTION OF THE ADMINISTRATION.
§ 84. Introduction.
$ 84. Introduction.
In the discussion of the methods of administration, it will be useful to make certain discriminations. Upon examination there appear to be three processes of administration: First, administration by execution; second, administration by legislation; third, administration by adjudication. All of these three are manifestations of the process of administration. By the first, the administration enforces the law; by the second, the adminis. tration is reduced to rule; by the third, the controversies that arise in administration are decided. In perfected administration all of these three processes will be found. To each of these methods of administration a chapter will now be devoted. These, after all, are the chief problems in administration, the invention of methods whereby the laws may be carried into effect. To a certain extent these are questions which the administration must decide for itself; to a certain extent they are decided for it. That is, a part of the law governing the methods of administration is internal, a part is external.
$85. Extraordinary process.
Execution requires no elucidation. The need for enforcement of law arises when there is opposition; and then, if there is resistance, force must be met with force. There are such and such laws in the books. The officer takes such and such steps to carry them into execution. To a certain extent the force employed is a question, the necessity of which the administration must determine for itself. A government which does not succeed in the maintenance of its laws against opposition stands a confessed failure before the world,
This enforcement of the law often approaches to an exterior limit. That is the same limitation which is present in all governmental action--due process of law. That a man shall not be seized nor his goods taken except by due process of law has been the law of the land from the earliest day; therefore, as to what is due process in government there is some agreement. It is plain that much action by an administration that is summary may yet be clue process of law; on the other hand, it is plain that some action by the administration in the execution of the law is too arbitrary to be due process. The attempt in this chapter will be to draw that line.66
66 EXTRAORDINARY PROCESS.-Sullivan v. Earl Spencer, Ir. R. 6 C. L. 173; In re Neagle, 135 U. S. 1; In re Debs, 158 U. S. 579; Johnson v. Jones, 44 Ill. 157; Langenberg v. Decker, 131 Ind. 482; Mitchell v. Rockland, 41 Me. 363; Nichols v. Boston, 98 Mass. 39; Burroughs v. Eastman, 101 Mich. 426; Cochran v. Toher, 14 Minn.
8 86. Enforcement.
That nation which does not make its coercive force felt throughout the length and breadth of the land is in a state of disintegration. The example of this that will never be forgotten in the United States was the fatal failure to attempt to maintain the federal law throughout the United States in the winter of 1860 and 1861. Late in 1860 the secession began. The President did nothing. The valuable property of the United States was seized by disorganized forces. The President still did nothing. The customs houses fell into the hands of the state governments.
At last the President did something; he asked the advice of the Attorney-General. He received in reply such an opinion as he wished The Power of the President, 9 Opin. 516 (1860).
This was the advice of Attorney-General BLACK: TO the Chief Executive Magistrate of the Union is confided the solemn duty of seeing the laws faithfully executed. That he may be able to meet this duty the forces of the United States are under his orders as their Commanderin-Chief. But his power is to be used only in the manner prescribed by the legislative department. He cannot accomplish a legal purpose by illegal means.
I now come to the point in your letter which is probably of the greatest practical importance. By various acts the land and naval forces of the United States and the militia of the several states may be called forth by you whenever the laws of the United States shall be opposed or the execution thereof obstructed in any state. These
385; McLaughlin v. Green, 50 Miss. 466; Taylor v. Place, 4 R. I. 338; State v. McMillan, 52 S. C. 69; Martin v. Snowden, 18 Grat. 142.
existing laws put and keep the Federal Government on the defensive strictly. You can use force only to repel an assault on a public property and to aid the courts in the performance of their duty. If the means given you to collect the revenue and enforce the other laws be insufficient for that purpose, Congress may extend and make them more effectual to those ends.
Within a few monthis a new President came into office and began war. He had no hesitation as to the power of the President in executing the laws. He found the laws of the United States opposed in the Southern States; he called out the militia of the Northern States. Ile found the forces of the Union confronted with the forces of the Confederacy; he declared a blockade of all the states in secession, and this, with or without action of ('ongress,-it did not seem to matter to him much. All this he did upon the basis that the President had the coercive forces of the nation at his disposal to enforce the laws whenever those laws were opposed. And in the end Congress ratified what he did as proper at the time; the Supreme Court of the United States declared what he did was within his power; and history has set its high approval upon this administration of Lincoln.
One of these opinions of the Supreme Court just referred to is the Prize Cases, 2 Black, 634 (1862). A part of the opinion of Mr. Justice GRIER follows: Had the President a right to institute a blockade of ports in the possession of persons in armed rebellion against the government? By the Constitution Congress alone has the power to declare a national or foreign war. It can: not declare a war against the state or any number of the states by virtue of any clause of the Constitution.
The Constitution confers on the President the whole executive power.
He is bound to take care that the laws be faithfully executed. He is Commander-in-Chief of the Army and Navy of the United States. He is not authorized, but bound to resist force with force. Пе does not initiate war, but is bound to accept the chal. lenge without waiting for special legislative authority. 67
$ 87. Apprehension.
In many ways the civil war enlarged the conception of the functions of government but in no particular more than in the appreciation of the extent of the powers of the executive. Indeed the test of this principle that the executive is subject to distinct limitations in the enforcement of the law will come in time of war. For a a most important part of any state or martial law is the making of arrests of civilians charged with various offenses. So, to arrest and hold is in effect to suspend the writ of habeas corpus; for, indeed, no military gorernment can be practical if the writ of habeas corpus is enforced. This is recognized in one provision of the Constitution which contemplates the suspension of the writ of habeas corpus in time of military necessity, without, however, designating in whom the power to suspend the writ shall be vested.
This was the situation at the outbreak of the War of the Rebellion when a case came before the Chief Jus.
67 ESFORCEMENT.-- Whiteside v. United States, 93 U. S. 247; In re Snow, 120 U. S. 286; Tennessee & C. R. Co. v. Moore, 36 Ala. 371; Hawkins v. Governor, 1 Ark. 570; Ex parte Shrader, 33 Cal. 279; McWhor. ter v. Pensacola R. R., 24 Fla. 417; Johnson v. Jones, 44 Ill. 157; Langenberg v. Decker, 131 Ind. 482; Mitchell v. Rockland, 41 Me. 363; Nichols v. Boston, 98 Mass. 39; McLaughlin v. Green, 50 Miss, 466; Sooy v. State, 39 N. J. L. 135; Mauran v. Smith, 8 R. I. 192.