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In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.


In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.


Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.


The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.


The powers not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.


The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.

The practical application

of the theory.

The separation of

powers one


57. The Theory of the Separation of Powers in the Federal Constitution *

The doctrine that the three departments of government - legislative, executive, and judicial—should be kept separate is not a mere theory of American politics; it is a rule of law which the Courts will apply by declaring void the actions of one department which trench on the clearly determined sphere of another. In 1876 the House of Representatives attempted to punish a Mr. Kilbourn for refusing to answer certain questions put by a House Committee conducting an investigation into the business of a private concern in which the United States had an interest, and the Supreme Court released Kilbourn on the ground that the inquiry was judicial and not legislative in character. The following statement of the theory is taken from the decision of the Court in this case:

It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted

of the merits to government, whether state or national, are divided into the three grand departments, the executive, the legislative and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants; and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the power confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.

Exceptions to the rule.

To these general propositions there are in the Constitution of the United States some important exceptions. One of these is, that the President is so far made a part of the legislative power, that his assent is required to the enactment of all statutes and resolutions of Congress. This, however, is so only to a limited extent, for a bill may become a law notwithstanding the refusal

of the President to approve it, by a vote of two-thirds of each House of Congress. So, also, the Senate is made a partaker in the functions of appointing officers and making treaties, which are supposed to be properly executive, by requiring its consent to the appointment of such officers and the ratification of treaties. The Senate also exercises the judicial power of trying impeachments, and the House of preferring articles of impeachment.

In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative and the judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another.

The House

of Representatives

exceeded its

In looking to the preamble and resolution under which the committee acted, before which Kilbourn refused to testify, we are of opinion that the House of Representatives not only exceeded the limit of its own authority, but assumed a power which authority. could only properly be exercised by another branch of the government, because it was in its nature clearly judicial.

The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as the Congress shall from time to time ordain and establish. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in the cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem it necessary to discuss the proposition that the power attempted to be exercised was one confided by

The action

in question was judicial.

Imprisonment of Kilbourn therefore unlawful.

Article VI of the federal

the Constitution to the judicial and not to the legislative department of the government. We think it equally clear that the power asserted is judicial and not legislative.

We are of the opinion, for these reasons, that the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the House, and the warrant of the speaker, under which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in that body, and that his imprisonment was without any lawful authority.

58. The Supremacy of Federal Law*

The federal Constitution expressly declares in the following clauses the supremacy of federal law:


This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or Constitution which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The senators and representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

It was thus clearly established that within its sphere, the federal government was supreme, but it was not expressly stated what authority should have the power to decide when any particular act of the government was within its prescribed limits of power. The supremacy of the federal law as interpreted by the Supreme Court in the last instance was forcibly asserted by Chief Justice

Taney in a long opinion delivered in connection with a fugitive slave case, from which only a few passages can be given here.



The Constitution was not formed merely to guard the States The necesagainst danger from foreign nations, but mainly to secure union sity for a and harmony at home; for if this object could be obtained, there would be but little danger from abroad; and to accomplish this purpose, it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government; and that, in the sphere of action assigned to it, it should be supreme and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established; and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force, unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all, by appropriate laws, to be carried into execution peacefully by its judicial tribunals.

The supremacy conferred on this Government could not Why judicial peacefully be maintained, unless it was clothed with judicial is essential. power, equally paramount in authority to carry it into execution, for if left to the courts of justice in the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and

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