190 WRIGHT— LIMITATIONS UPON NATIONAL POWERS, 



contention at first received some judicial support in Civil War 

 cases/°^ it was thoroughly demolished during the World War.^°* 



Apparently the only legal limitation upon the exercise of 

 powers in foreign relations imposed by states' rights is that upon 

 the power to cede state territory by treaty, which is acknowl- 

 edged to evaporate before necessity. 



CHAPTER VII. 

 Limitations upon National Powers : The Separation of 



Powers. 

 52. Nature of the Theory. 



The doctrine of separation of powers means that the legislative, 

 executive, and judicial powers of government ought to be exercised 

 by separate and independent departments. 



" It is also essential," says tlie Supreme Court, " to the successful work- 

 ing of the system that the persons intrusted with power in any one of these 

 branches shall not be permitted to encroach upon the powers 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 others." ^ 

 The doctrine is implied by three clauses of the Constitution: 



" All legislative power herein granted shall be vested in a Congress of 

 the United States." (Art. I, sec. i.) 



" The executive power shall be vested in a President of the United 

 States of America." (Art. II, sec. i.) 



"The judicial power of the United States shall be vested in one Su- 

 preme Court and in such inferior courts as the Congress may from time 

 to time ordain and establish." (Art. Ill, sec. i.) 



cl. 12) is wholly distinct from the power over the militia and is not limited 

 by the state's right to its militia. (Selective Draft Cases. 245 U. S. 366.) 

 See Wright, Military Administration, Report of Efficiency and Economy 

 Committee of Illinois, 191S, p. 903. 



103 Kneedler v. Lane, 45 Pa. 238 (1863), Thayer, Cases on Constitutional 

 Law, p. 2316. Lowrie, J., supported by Justices Woodward and Thompson, 

 with Justices Strong and Read in dissent, granted a preliminary injunction 

 on November 9, 1863. On December 12, 1863, Justice Lowrie's term ex- 

 pired. He was succeeded by Justice Agnew, who sided with the two former 

 dissenting justices, thus making Justice Strong's opinion dissolving the 

 injunction the opinion of the court. 



nonselective Draft Cases, 245 U. S. 366; Sutherland, op. cit., p. 108. 



n Kilbourn v. Thompson, 103 U. .S. 168. On impossibility of so defining 

 the functions of the departments as to make an actually complete separation, 

 see Goodnow, The Principles of the Administrative Law of \J. S., N. Y., 1905, 

 p. 26, and Willoughby, op. cit., p. 1262. 



