as unconstitutional otherwise than is any superior executive officer charged with the responsibility of ascertaining what the law is in order to govern his actions.

As an abstraction this ruling is perfect in its logic. If you have three departments of government, each absolute in its independence granted, the next step is to say that the constitution addresses itself to each, so that each must decide the question of constitutionality of the acts of the other, and of its own acts in pursuance of any action of its own, since in that view it is impossible that any one of the departments should assume preponderance in any inquiry over the action of any of the others. All that is the logic of a constitution; so in France with a constitution which establishes the three departments of the government, the legislative, judicial, and the executive, the conclusion is reached that no one of these three departments can do wrong in the eye of the other. Whatever the legislature enacts must be regarded as constitutional, whatever the judiciary decides is final, whatever the executive does is well done. In France, therefore, the judiciary cannot doubt the validity of any statute passed by the legislature, nor question the propriety of any official action. of the executive.

This is not so in the United States; we have another view of the function of the judiciary founded in our history and continued in our policy. Under our system the courts in last resort may inquire into the constitutionality of legislation and the validity of administration. Notwithstanding this, it would seem that the courts should give a certain weight to the separation

of powers. Perhaps as much as this: the courts should recognize that the legislature is by the course of things first in the enactment of laws; that accordingly, unless the statute is unconstitutional beyond all doubt, it should be allowed. The same attitude should be taken toward the executive department; unless official action is squarely in conflict with law, it should be supported also, since that is the office of administration. It should only be in last resort that the judiciary should question executive action. Whenever there is doubt the administration, as an independent department, should at least be given the doubt.13

§ 19. Independence.

The proposition that each of the three departments of the government is co-ordinate involves the conclusion that no one of the departments can call the other to account in a direct proceeding brought against it. To a certain extent this is the fact; that neither of the oth

13 SEPARATION OF THE DEPARTMENTS.-Worcester v. Georgia, Pet. 570; Mississippi v. Johnson, 4 Wall. 475; Fox v. McDonald, 101 Ala. 51; Ex parte Allen, 26 Ark. 9; Ex parte Shrader, 33 Cal. 279; Land Co. v. Routt, 17 Colo. 156; State v. Staub, 61 Conn. 568; In re Miller, 5 Mackey, 507; McWhorter v. Pensacola R. R., 24 Fla. 417; Hilliard v. Connelly, 7 Ga. 179; People v. Bissell, 19 Ill. 229; State v. Hyde, 121 Ind. 20; Brown v. Duffus, 66 Ia. 193; Auditor v. Atchison, etc., R. R., 6 Kan. 500; State v. Shakespeare, 41 La. Ann. 156; Dennett, Petitioner, 32 Me. 508; Baltimore v. State, 15 Md. 457; Supervisors of Election, 114 Mass. 247; People v. Hurlbut, 24 Mich. 63; State v. Dike, 20 Minn. 363; State v. Hathaway, 115 Mo. 36; Vicksburg & M. R. Co. v. Lowry, 61 Miss. 102; Miller v. Wheeler, 33 Neb. 765; Merrill v. Sherburne, 1 N. H. 199; In re Cleveland, 51 N. J. L. 311; In re New York Elevated R. Co., 70 N. Y. 327; State v. Chase, 5 Oh. St. 528; Gray v. Pentland, 2 S. & R. 23; Taylor v. Place, 4 R. I. 338; State v. McMillan, 52 S. C. 69; Turnpike Co. v. Brown, 8 Baxt. 490; Houston, etc., R. R. v. Randolph, 24 Tex. 317.

ers can have any position to command the other. Our first great state trial, United States v. Aaron Burr, Fed. Cas. No. 14,692 (1806), should have made this inherent lack of power in such an attempt plain once for all. In this was a motion for a subpoena duces tecum directed to the President of the United States.

Chief Justice MARSHALL granted the motion: The obligation to respond to process, he said, is a general one. The King in England, perhaps, may give his testimony. It is said to be incompatible with his dignity to appear under process of the court. But the President is altogether different from the King. By the constitution of Great Britain the crown is hereditary, and the monarch can never be a subject; by the constitution of the United States the President is elected from the people and returns to the mass of the people again. If upon any principle the President should be made an exception, it would be upon grounds of expediency, his office requiring his time; but that could be arranged for. So Marshall issued his subpoena; but Jefferson refused to obey it; and Marshall had no way to enforce it.

Once only has the possibility of directing the Presi dent been suggested in the Supreme Court of the United States, in Mississippi v. Johnson, 4 Wall. 475 (1866). This was a motion made on behalf of the state of Mississippi for leave to file a bill in the name of the state, praying this court to enjoin and restrain Andrew Johnson, a citizen of the state of Tennessee and President of the United States and his officers and agents for that purpose, and especially one Ord, military commander, from executing or in any manner carrying into effect

two acts of Congress named in the bills commonly known as the Reconstruction Acts. The bill complained that scope of power so broad was never before vested in a military commander in any government, since it embraced all those subjects over which states have reserved the power of legislation for themselves. The bill further charged that in their opinion and belief the said Andrew Johnson, President, in violation of the sacred rights of the states and in violation of the constitution, would proceed, notwithstanding his veto, and as a mere ministerial duty, to the execution of the said acts as though they were the law of the land, which vetoes prove he would not do so if he had any discretion. The Attorney-General objected to the bill in limine as containing matter not fit to be heard; the issue therefore was upon the question of leave to file the bill.

Chief Justice CHASE was adequate to the situation; his opinion leaves nothing to be doubted: The simple point which requires consideration is this: can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional? It is assumed by the counsel for the state of Mississippi that the President in the execution of the Reconstruction Acts is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms of ministerial and executive, which are by no means equivalent. The duty imposed upon the President by these Acts is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the government to enforce such duties by the President might justly be characterized in the language of Chief Justice Marshall,

as absurd and excessive extravagance. It is true that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference in the exercise of executive discretion. Congress is a legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both when performed are, in proper cases, subject to his cognizance. We are fully satisfied this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.

This case is without doubt one of the chief decisions in our administrative law, for it settles beyond question one of the fundamental principles. The President cannot be commanded by the courts, since the President himself is the executive department. As all of the departments are co-ordinate, all of the departments are independent. But suppose the judiciary should renounce this principle and should direct a mandamus for example against the President; who would enforce that decree? Not the United States Marshal, for he is an administrative subordinate of the President. The truth is that the execution of such an order is impossible, since all the powers of enforcement of law are in the hands of a President should he be advised to hold his ground. Such an impossibility makes any claim forever idle, it would seem.