the commission of which they are charged were perfomed in connection with the exercise of, and justified by their authority as federal officers.

§ 671. The Neagle Case.

In these ways Congress has by law provided means by which resistance to federal authority may be overcome or punished, and federal agents protected in the performance of their federal duties. In the case of In re Neagle,' however, the Supreme Court was led to take a position which in a measure at least departs from the principle which has been stated above, and recognizes in the President, acting through his Attorney-General, an authority to furnish a protection for which neither the Constitution nor act of Congress has made express provision. The court does in fact appeal to the obligation to take care that the laws are faithfully executed as a source of affirmative power.

In this case, decided in 1890, was involved not only a question of conflict between state and federal jurisdictions, but one as to the authority of the President of the United States, in default of statutory authorization, to depute to a United States marshal the specific duty of protecting a federal judge in the performance of his official duties. In this case, it will be remembered, Neagle had, under instructions from the Attorney-General of the United States, been deputized to guard Justice Field of the Supreme Court, while on circuit. In a railroad station in California Field was attacked by one Terry, whereupon Neagle shot and killed Terry. Upon being indicted on charge of murder in the courts of the State of California, Neagle set up the fact that he acted in the discharge of duties imposed upon him as a federal official and applied to a federal court for discharge upon habeas corpus. That court ordered his discharge and this judgment was approved by the Supreme Court of the United States.

After stating in its opinion that Justice Field was at the time of the killing of Terry engaged in the discharge of his duties,

1 135 U. S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55.

and, therefore, entitled to all the protection which the law could give him, the Supreme Court continued:

6

"It is urged, however, that there exists no statute authorizing any such protection as that which Neagle was instructed to give Judge Field in the present case, and indeed no protection whatever against a vindictive or malicious assault growing out of the faithful discharge of his official duties; and that the language of Section 753 of the Revised Statutes, that the party seeking the benefit of the writ of habeas corpus must in this connection show that he is in custody for an act done or omitted in pursuance of a law of the United States,' makes it necessary that upon this occasion it should be shown that the act for which Neagle is imprisoned was done by virtue of an Act of Congress. It is not supposed that any special Act of Congress exists which authorizes the marshals or deputy marshals of the United States in express terms to accompany the judges of the Supreme Court through their circuits and act as a body-guard to them to defend them against malicious assaults against their persons. But we are of opinion that this view of the Statute is an unwarranted restriction of the meaning of a law designed to extend in a liberal manner the benefit of the writ of habeas corpus to persons imprisoned for the performance of their duty. And we are satisfied that if it was the duty of Neagle, under the circumstances, a duty which could only arise under the laws of the United States, to defend Mr. Justice Field from a murderous attack upon him, he brings himself within the meaning of the section we have recited. This view of the subject is confirmed by the alternative provision, that he must be in custody for an act done or omitted in pursuance of a law of the United States or of an order, process or decree of a court or judge thereof, or is in custody in violation of the Constitution or of a law or of a treaty of the United States.'

"In the view we take of the Constitution of the United States, any obligation fairly and properly inferable from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is a law'

within the meaning of this phrase. It would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there is to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments may operate unfavorably."

After observing that "if a person in the situation of Judge Field could have no other guarantee of his personal safety while engaged in the conscientious discharge of a disagreeable duty, than the fact that if he was murdered his murderer would be subject to the laws of a State and by those laws could be punished, the security would be very insufficient," and after showing upon the authority of Ex parte Siebold2 and Tennesse v. Davis that the Federal Government has full constitutional authority to protect its agents within the States, the court asks by what department of the Federal Government, and by what means this protection is to be extended under circumstances such as those in the case at bar. After observing that the courts cannot do this, and that the power of the legislative branch is limited simply to the enactment of laws, and not to their enforcement, the opinion continues:

"If we turn to the Executive Department of the government, we find a very different condition of affairs. The Constitution, section 3, article 2, declares that the President shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by Acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, who are familiarly called cabinet minis

2 100 U. S. 371; 25 L. ed. 717.

100 U. S. 257; 25 L. ed. 648

ters. These aid him in the performance of the great duties of his office and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that he shall take care that the laws be faithfully executed.'

"Is this duty limited to the enforcement of Acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution?"

"We cannot doubt," the opinion concludes, "the power of the President to take measures for the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result in his death, and we think it clear that where this protection is to be afforded through the civil power, the Department of Justice is the proper one to set in motion the necessary means of protection."

From this case it would appear that, under his general duty to take care that the laws of the United States be faithfully executed, the President has, aside from any special constitutional or congressional endowment, an authority to empower action to be taken, when circumstances seem imperatively to demand, for the due enforcement of the law or the due protection of federal rights, privileges or immunities. The force and earnestness of the dissenting opinion in this case would seem to indicate, however, that this general, one might almost say indefinite, power in the President, is one, the exercise of which may be justified only under exceptional circumstances. Certainly the doctrine declared in the Neagle case is not one upon which may safely be founded a general power in the President to supply means of enforcement of federal rights and modes of protection to federal officials where Congress has failed to act.*

4 The dissenting opinion was prepared by Justice Lamar, Chief Justice Fuller concurring.

§ 672. The President as Administrative Chief.

The functions of a chief executive of a sovereign State are, generally speaking, of two kinds-political and administrative. In different countries, with different governmental forms, the emphasis laid respectively upon each of these functions varies. In some, the powers and influence of the executive head are almost wholly political. In others, as for example in Switzerland, the political duties of the executive are so fully under legislative control that the chief importance is upon the administrative side.

§ 673. Originally Intent That the President Should be Primarily a Political Chief: Congressional Control of Administration.

In the United States it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should, in the main, consist in the performance of those political duties which are not subject to judicial control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate federal administrative agents. The acts of Congress establishing the Departments of Foreign Affairs [State] and of War, did indeed recognize in the President a general power of control, but the first of these departments, it is to be observed, is concerned chiefly with political matters, and the second has to deal with the armed forces which by the Constitution are expressly placed under the control of President as Commander-in-chief. The act establishing the Treasury Department simply provided that the Secretary should perform those duties which he should be directed to perform, and the language of the act, as well as the debates in Congress at the time of its enactment, show that it was intended that this direction should come from Congress. Furthermore, the Secretary is to make his annual reports not to the President, but to Congress.5 In similar manner, the Post-Office Department, when first permanently or5 Cf. Goodnow, American Administrative Law, p. 78.