I 
 
: 
 
THE RELATION OF THE EXECUTIVE 
 POWER- TO LEGISLATION 
 
 BY 
 
 HENRY CAMPBELL BLACK, LL.D. 
 
 EDITOR OF THE CONSTITUTIONAL REVIEW 
 
 PRINCETON UNIVERSITY PRESS 
 PEINCETON 
 
 LONDON : HUMPHREY MILFORD 
 
 OXFORD UNIVERSITY PRESS 
 
 1919 
 

 < 
 
 
 Copyright, 1919, by 
 
 PRINCETON UNIVERSITY PRESS 
 
 Princeton, N. J. 
 
 Published, 1919 
 Printed in the United States of America 
 
CONTENTS 
 
 I. The Growth of Executive Power i 
 
 II. Executive Initiative in Legislation; 
 
 Abroad 41 
 
 III. Executive Initiative in Legislation ; In the 
 
 United States 55 
 
 IV. The Cabinet in Congress 79 
 
 V. The Selective or Partial Veto 101 
 
 VI. Executive Orders and Decrees 116 
 
 VII. Executive Power in the States 149 
 
 VIII. Summary and Conclusion 181 
 
 40571 
 
PREFACE 
 
 The framers of the Constitution of the United 
 States and of the contemporary state constitutions 
 firmly believed that the preservation of liberty re- 
 quired a careful separation and delimitation of pow- 
 ers between the three great branches or departments 
 of government, and made provision accordingly. In 
 one respect, at least, their expectations have been frus- 
 trated and their plans have gone awry. For a survey 
 of the course of our political history and of the de- 
 velopment of political forces and methods shows that, 
 as between the executive authority and the legislative 
 power, the balance originally intended to be main- 
 tained has, both in the Union and the states, been very 
 gravely disturbed.. The President of the United Stated 
 has grown into a position of overmastering influence 
 over the legislative department of the government. 
 He presents and procures the enactment of such meas- 
 ures as he desires, and prevents the passage of those 
 which he disapproves. Congress is subservient to his 
 \will; its independence is in eclipse/ On the other hand, 
 many of the state governments are working ineffec- 
 tively, and the states are losing their rightful jurisdic- 
 tion and influence in our federated government, chiefly 
 because they have stripped their governors of much 
 of the authority which their responsibility to public 
 and political opinion properly demands. 
 
vi PREFACE 
 
 There are those who tell us that the political philos- 
 ophy of the founders of the Republic is unsuited to a 
 twentieth-century world, that what they regarded as a 
 self-evident truth is now seen to be only a fetish. If 
 we are not prepared to reject the theory of the separa- 
 tion of powers, we should endeayor by all means to re- 
 store the lost equipoise, and to regain the ancient paths 
 of ordered liberty under representative government. 
 But if the new view is correct, or if it is true that ex- 
 ecutive arrogation of power is the result of forces 
 operating irresistibly in the life of the nation, or the 
 outcome of an evolutionary process which cannot now 
 be reversed, then it becomes us to ask ourselves what 
 we mean to do with our new form of government. 
 
 In this dilemma, we get but little light from the in- 
 stitutions of other countries. An examination of the 
 so-called "parliamentary" or "cabinet" system shows 
 it to be entirely unadapted to the government of a 
 country whose constitution provides its executive with 
 a fixed tenure of office. But the fact is patent that 
 there has insensibly grown up aiound the Constitution 
 a system of usages and conventions, which is only par- 
 tially within its cognizance, and which is very largely 
 a matter of make-believe. The question is propounded 
 in these pages whether we cannot take this system (if 
 indeed its continuance is inevitable) and put it where 
 it belongs squarely within the four corners of the 
 Constitution. Suggestions are offered in that behalf. 
 It is not pretended that they furnish the ideal solution 
 of a very serious and difficult problem. But at least 
 they would legalize that which is at best extra-consti- 
 tutional, deliver the supreme law of the land from a 
 
PREFACE vii 
 
 mocking pretense of obedience, and liberate the most 
 important function of a free country's government 
 the making of its laws from an atmosphere of shams 
 and subterfuge. 
 
 HENRY CAMPBELL BLACK. 
 Washington, D. C. 
 
THE GROWTH OF EXECUTIVE POWER 
 
 The most portentous development in American po- 
 litical and constitutional history ^ince 1865 is the 
 change in the relations between th^ executive and 
 legislative branches of government, the one making 
 enormous gains in the direction of influence and actual 
 power, the other suffering a corresponding decline in 
 prestige and in its control over the processes of gov- 
 ernment. \ The President of the United States occu- 
 pies today a position of leadership and of command 
 over the government of the country so different from 
 that which was intended by the framers of the Con- 
 stitution that, if it were not the outcome of a natural 
 process of evolution working through a long period of 
 years, it would bear the stigmata of revolution, and if 
 it had been achieved in a single presidential term, it 
 would have been denounced as a coup d'etatJ} 
 
 The men of the convention of 1787 were scrupu- 
 lously anxious to separate the three great functions of 
 government in fact as well as in theory. And hence 
 the first article of the Constitution begins with the 
 words "all legislative powers herein granted shall be 
 vested in a Congress of the United States/' and the 
 second with the words "the executive power shall be 
 vested in a President of the United States." But 
 while they meant to keep the chief magistrate from 
 
..REIATJON.'OF EXECUTIVE 
 
 c'oritrbliihg' legislation and the lawmaking body from 
 interfering with properly executive functions (except 
 as otherwise specified in the Constitution) there can 
 be no doubt that it was likewise their intention that 
 the Congress should be the predominant power in the 
 state, the guardian of the public welfare, and the ulti- 
 mate repository of sovereignty. With few exceptions, 
 even if notable ones,* the statesmen of that day ab- 
 horred the idea of executive control. <$ The personal 
 traits and behavior of George III had no doubt much 
 to do with this. Also the wide powers vested in some 
 colonial governors and the tyrannical manner of their 
 exercise had inspired them with a bitter distrust of 
 one-man power. But more than this, their practical 
 good sense enabled them to perceive that the mythical 
 divinity hedging about an English king would dissolve 
 into absurdity if applied to the officer whom they 
 meant to place at the head of the executive department 
 of the American system. That the titular head of the 
 state never dies, that he can do no wrong, that his 
 crimes against the liberties of the people, or even 
 against one person, must be shouldered by some re- 
 sponsible minister, these are fictions necessary perhaps 
 to maintain a monarchy in a free country, t But the 
 President of the United States was not to be*a sover- 
 eign nor a ruler. He was to be a public agent, with 
 considerable discretion, it is true, but only within the 
 bounds of defined powers. Hence he was to be hedged 
 about with law and amenable to law. And the original 
 conception of the presidency involved a further idea, 
 which is of special interest in this inquiry. The in- 
 cumbent of that office was to be independent of con- 
 
POWER TO LEGISLATION 3 
 
 gressional dictation in the carrying out of the powers 
 and duties laid upon him by the Constitution. *He was 
 not to be the servant of Congress ; but yet he was to be 
 in large measure its agent. For the political overlord- 
 ship was conceived as vested in that body which was 
 to make the laws which the 'President was to execute, 
 that body which was to create departments and offices, 
 prescribe rules for conducting the public business, and 
 generally, by its action or refusal to act on legislative 
 proposals, to determine all matters of national policy.* 
 > It has been well remarked that the authors of the 
 federal Constitution "planned a chief magistrate, non- 
 partisan, calm, and aloof from the throbbing political 
 questions that might agitate the legislative branch of 
 the government. Above the turmoil of political par- 
 ties, the President was dispassionately to carry out the 
 laws in much the same non-political manner as the 
 Chief Justice was to head the judiciary." 1 ^ /"The 
 makers of the Constitution," said Woodrow Wilson in 
 1908, "seem to have thought of the President as what 
 the stricter Whig theorists wished the king to be: 
 only the legal executive, the presiding and guiding 
 authority in the application of the law and the execu- 
 tion of policy. His veto upon legislation was only his 
 'check' on Congress was a power of restraint, not 
 of guidance. He was empowered to prevent bad laws, 
 but he was not to be given an opportunity to makei 
 good ones." 2 /Many of the members of that conven- 
 tion must have shared the views of Roger Sherman, 
 who did not hesitate to avow that "he considered the 
 
 1 Hill, "The Federal Executive," p. 9. 
 
 2 "Constitutional Government in the United States/' p. 59. 
 
4 RELATION OF EXECUTIVE 
 
 : executive magistracy as nothing more than an insti- 
 
 I tution for carrying the will of the legislature into ef- 
 
 1 feet," and who even thought that the President "ought 
 
 to be appointed by and accountable to the legislature 
 
 only, which was the depository of the supreme will of 
 
 the society. " 
 
 Plans for the election of the President by one or 
 both houses of the legislative body did not prevail in 
 the convention, save as to the exceptional case when 
 the choice might devolve upon the House of Repre- 
 sentatives ; and it may be conceded that he was finally 
 granted a larger measure of actual power in the gov- 
 ernment of the nation than was acceptable to a group 
 of extremists in the convention. Still it is evident that 
 the prevailing conception of the presidential office at 
 fKaFTIme made the chief magistrate bill little iiioie 
 than an "institution for carrying the will of the legis- 
 lature into effect." And it was thought that the pow- 
 '^rs^anH^respohsibilities of these two branches of the 
 government, as over against each other, had been un- 
 alterably determined by the explicit language of the 
 Constitution. 
 
 $For example, the President was given a veto upon 
 acts of legislation. But it w r as not absolute; it was 
 rather suspensive and meant to force reconsideration 
 of the bill in question; and it was ineffectual in the 
 face of a two-thirds majority. And the opinion was 
 long held that the veto power was intended to be ex- 
 ercised only in self-defense, that is, as a means of re- 
 sisting encroachments by the legislature upon the 
 prerogatives of the President, and not to make him a 
 partner in judging the expedience, policy, or necessity 
 
POWER TO LEGISLATION 5 
 
 of what the Congress might enact. He was made the 
 commander in chief. But in the early view this was a 
 military rank, not a political office; and the authority 
 was carefully reserved to Congress to declare war, to 
 raise and support armies and a navy, and to make the 
 rules for the government and regulation of the forces. 
 The President was given the power to make treaties 
 and to appoint the non-elective officers of government. 
 But not on his sole responsibility. The exercise of 
 either of these executive functions was predicated 
 upon the advice and consent of the Senate. His was 
 the authority to receive ambassadors and other public 
 ministers, but the contemporary view was that this 
 was more a matter of dignity than of authority. It 
 was made his duty to "recommend" to the Congress 
 such measures as he should judge necessary and ex- 
 pedient, but no corresponding obligation rested upon 
 the legislature to pay any heed whatever to his recom- 
 mendations. The framers of the Constitution very 
 carefully abstained from giving him any power to 
 dissolve or prorogue a session of Congress. It is 
 simply within his power, in case of a disagreement be- 
 tween the two houses as to the time of adjournment, 
 to "adjourn them to such time as he shall think 
 proper." Finally, and most important of all, the 
 President has no constitutional means of getting rid of 
 Senators or Representatives who oppose him. Should 
 he be confronted with a hostile majority of two-thirds 
 in both houses, he is impotent to check the course of 
 legislation, however disastrous he may believe it to 
 be, however contrary to the dictates of sound policy 
 or ruinous to the best interests of the nation. In the 
 
6 RELATION OF EXECUTIVE 
 
 case supposed his veto would be ineffectual and he 
 could not dissolve the session. His only recourse 
 would be an appeal to public opinion. But rhetoric 
 may be persuasive, but it is not coercive ; and it could 
 have no effect until the next elections. On the other 
 hand, a President who is believed guilty of such mal- 
 feasance in his office as may constitute a high crime or 
 misdemeanor may be impeached by a majority vote of 
 the House, convicted by a vote of "two-thirds of the 
 members present" in the Senate, and removed from 
 office. 
 
 Of course there were members of the constitutional 
 convention and other 'publicists of that generation 
 who took a different view of the presidential office, 
 who would not subscribe to the doctrine which made 
 the legislative branch the supreme authority in the 
 state and the "depository of the supreme will of the 
 society," and who claimed that any residuum of, gov- 
 ernmental power left undefined by the Constitution 
 might be claimed for the President. They found op- 
 portunity for the expression of their opinions before 
 the government had been five years in operation. 
 Washington's proclamation of neutrality in 1793 was 
 fiercely attacked as a usurpation of power belonging to 
 Congress. Alexander Hamilton came forward in its 
 defense, writing, under the name "Pacificus," a series 
 of letters in the public press, in the first of which the 
 following passages occur : 
 
 "The second article of the Constitution of the United 
 States, section first, establishes this general proposition, 
 that 'the executive power shall be vested in a President 
 of the United States of America/ The same article in a 
 
POWER TO LEGISLATION 7 
 
 succeeding section, proceeds to delineate particular cases 
 of executive power. It declares, among other things, 
 that the President shall be commander in chief of the 
 army and navy of the United States and of the militia 
 of the several states when called into the actual service 
 of the United States ; that he shall have power, by and 
 with the advice and consent of the Senate, to make 
 treaties ; that it shall be his duty to receive ambassadors 
 and other public ministers, and to take care that the laws 
 be faithfully executed. 
 
 "It would not consist with the rules of sound con- 
 struction to consider this enumeration of particular au- 
 thorities as derogating from the more comprehensive 
 grant in the general clause, further than as it may be 
 coupled with express restrictions or limitations, as in 
 regard to the co-operation of the Senate, in the appoint- 
 ment of officers and the making of treaties, which are 
 plainly qualifications of the general executive powers of 
 appointing officers and making treaties. The difficulty of 
 a complete enumeration of all the cases of executive 
 authority would naturally dictate the use of general terms, 
 and would render it improbable that a specification of 
 certain particulars was designed as a substitute for those 
 terms when antecedently used. The different mode of 
 expression employed in the Constitution, in regard to 
 the two powers, the legislative and the executive, serves 
 to confirm this inference. In the article which gives the 
 legislative powers of the government, the expressions are 
 'all legislative powers herein granted shall be vested in a 
 Congress of the United States.' In that which grants the 
 executive power, the expressions are 'the executive power 
 shall be vested in a President of the United States.' 
 
 "The enumeration ought therefore to be considered as 
 intended merely to specify the principal articles implied 
 in the definition of executive power, leaving the rest to 
 flow from the general grant of that power, interpreted in 
 conformity with other parts of the Constitution and with 
 the principles of free government. The general doctrine 
 of our Constitution then is that the executive power of 
 the nation is vested in the President, subject only to the 
 exceptions and qualifications which are expressed in the 
 instrument." 
 
8 RELATION OF EXECUTIVE 
 
 r 
 
 Notwithstanding the severe perturbation of Jeffer- 
 son and an inconclusive attempt on the part of Madi- 
 son to reply to the letters of "Pacificus," Hamilton's 
 doctrine prevailed so far as concerns the single ques- 
 tion of the President's initiative in foreign affairs. 
 But his general proposition that the Constitution 
 does not restrict the President to such executive acts 
 as it expressly authorizes, but, on the contrary, grants 
 him a general executive power subject only to specified 
 limitations soon fell into oblivion, and we hear no 
 more of it as a matter of practical constitutional in- 
 terpretation for more than a hundred years, in fact, 
 until it was revived and vigorously asserted by Presi- 
 dent Roosevelt. 
 
 But from the foundation of the government there 
 has been a struggle for ascendancy between the Presi- 
 dent and Congress, between the ideas of Alexander 
 Hamilton and those of Roger Sherman. This con- 
 test has not been continuous, but it has been recurrent. 
 It has seldom been acute, public, and conscious. It 
 was so during the brief incumbency of Andrew John- 
 son. It has for the most part, however, been silent and 
 strategic. Generally the conflict has been waged over 
 matters of detail, that is, over the fate of some meas- 
 ure, plan, or policy advocated on the one side and op- 
 posed on the other. There has seldom, if ever, been 
 manifested an avowed and deliberate purpose on either 
 side to gain and hold an undisputed position of leader- 
 ship in general and without reference to the issue of 
 some specific controversy. And the fortunes of the 
 contestants have varied chiefly in direct relation to two 
 sets of circumstances. First, the matter of personal 
 
POWER TO LEGISLATION 9 
 
 force and character, popularity, and prestige. Ven- 
 erated presidents, vigorous presidents, and popular 
 presidents have been able to impose their will upon 
 Congress. Weak presidents have been bullied by Con- 
 gress. Second, external situations, chiefly war or criti- 
 cal foreign relations, which have momentarily placed 
 the President in a predominant position. A survey of 
 American history will show the continual recrudescence 
 of this struggle ; and it will show, too, a decline in the 
 power of the President to a point where he seemed to 
 be almost completely subjugated by Congress and in 
 danger of becoming little more than an executive clerk, 
 followed by a reverse process, little short of amazing, 
 which has led the President to a height where he stands 
 as practically the master of Congress and the leader, 
 if not the ruler, of the nation. 
 
 In the earliest days of the Republic those who re- 
 garded the legislative body as the supreme and pre- 
 dominant organ of government found themselves con- 
 fronted with facts which would not square with their 
 theories, and which postponed for a long time the 
 eventual triumph of their ideas. The early presidents, 
 Washington, Jefferson, Madison, and perhaps Monroe 
 also, were men of altogether too much force of char- 
 acter, and with too strong a following throughout the 
 country, to allow themselves to be placed in a subordi- 
 nate position. Washington showed himself at times 
 disposed to take a very high hand with Congress. Jef- 
 ferson's plans for the expansion and development of 
 the country did not wait upon congressional initiative, 
 nor were they even to be restrained by his own inter- 
 pretation of the Constitution. Madison could hardly 
 
io RELATION OF EXECUTIVE 
 
 be described as a masterful man. Yet he, in common 
 with the others, even without the aid of specially fa- 
 voring circumstances, could not have failed to make 
 his personal influence strongly effective in the councils 
 of the nation. But there were circumstances, in the 
 first seven administrations, which did offer special and 
 exceptional opportunities for a strong president to 
 dominate those councils. Such circumstances always 
 arise when the relations of the country with foreign 
 powers become embroiled or even critical. Washing- 
 ton's neutrality proclamation in 1793 set a precedent 
 for the claim of executive control over the international 
 affairs of the country which other presidents were not 
 slow to follow. Diplomatic business, the making of 
 treaties, and the determination of policy towards other 
 states naturally belong to the executive branch of the 
 government, since it is that branch which must open 
 or receive, and conduct, negotiations. But these af- 
 fairs are often of such momentous consequence, and 
 often the subject of such wide-spread and excited 
 public opinion, that the president's command over 
 them makes him, at least for the time being, the chief 
 power in the state and the nation's leader, while his 
 successful conduct of them will immensely exalt his 
 popularity and prestige. When the country engages 
 in war, there comes into play the almost unlimited 
 power of the President as commander in chief. And 
 moreover, in such a crisis there is imperative necessity 
 for the concentration of authority in a single hand. 
 Deliberative bodies are not fitted for the secret counsel, 
 quick decision, and immediate action which such exi- 
 gencies demand. There is therefore always a tendency 
 
POWER TO LEGISLATION 11 
 
 at such times to confide much to the discretion of the 
 executive, and to surrender to the President the law- 
 making processes of the government, or at least, by 
 broad general enactments to vest in him every kind of 
 power and authority which he judges necessary for the 
 successful conduct of the war. 
 
 It is hence not at all difficult to account for the 
 strength of the executive during the early administra- 
 tions (and entirely aside from the personality of the 
 men who filled the office), when we recall the bitter 
 disputes with England and the difficulty of negotiating 
 a more satisfactory treaty, the efforts to stem the tide 
 of excited but dangerous sympathy with the principles 
 of the French Revolution, the subsequent resentment 
 against the arbitrary actions of that nation, leading to 
 an undeclared but active little naval war with France, 
 the purchase of Louisiana from France and of Flori- 
 da from Spain, and finally the War of 1812. 
 
 Andrew Jackson, possessing the will and temper for 
 command, and being also a popular military hero, was 
 naturally bound to strive for leadership and to magnify 
 the authority of the presidential office. In this he 
 also, like some of his predecessors, was helped by ex- 
 traneous circumstances. His first administration wit- 
 nessed threatening storm clouds upon the international 
 horizon. Acrimonious disputes with Great Britain 
 concerning commercial relations with her colonies and 
 the northern boundary of Maine, and with France 
 about the payment of the spoliation claims, more than 
 once made war a close possibility. In domestic affairs 
 his vigorous personality was often to the fore. Presi- 
 dent Wilson aptly describes him as "an imperious man, 
 
12 RELATION OF EXECUTIVE 
 
 bred not in deliberative assemblies or quiet councils, 
 but in the field and upon a rough frontier/' and says 
 that he "worked his own will upon affairs, with or 
 without formal sanction of law, sustained by a clear 
 undoubting conscience and the love of a people who 
 had grown deeply impatient of the regime he had sup- 
 planted/' Though often bitterly opposed in Congress, 
 and sometimes defeated there, he was more than once 
 able to bring his policies to success by sheer personal 
 force and astuteness, the most notable instance being 
 seen in his assault upon the Bank of the United States. 
 Following the second administration of Jackson 
 there ensued a period of a quarter century during 
 which the presidency was in eclipse. Notwithstand- 
 ing the episode of the war with Mexico, there did not 
 once occur within this stretch of time such a combina- 
 tion of circumstances as would enable a President to 
 dominate Congress and lead the thought and impulse 
 of the people, namely, the combination of a man of 
 powerful will and initiative occupying the presidential 
 chair with a critical situation in those affairs of the 
 nation which primarily fall within the control of the 
 executive. William Henry Harrison, indeed, in his 
 inaugural address, showed a tendency to belittle the 
 authority of his office, or at least deprecated any arbi- 
 trary or individualistic use of even the conceded and 
 rightful powers of the President. Tyler's incapacity 
 to fill the role of leader, even when it was offered him 
 as a gift, was evidenced by his dealings with the vari- 
 ous bills to incorporate a "Fiscal Bank of the United 
 States." Such a measure having been passed by Con- 
 gress and vetoed by the President, and the attempt to 
 
POWER TO LEGISLATION 13 
 
 enact it over his veto having failed, the leaders of the 
 Whig party asked the President to draft a bill which 
 would be unobjectionable to him. After consulting 
 with his Cabinet, Tyler complied with this request, and 
 the bill which he had drawn (at least in outline) was 
 introduced in Congress and passed by both houses. 
 Thereupon Tyler vetoed it. The result was a storm 
 of indignation and disgust, the resignation of all the 
 members of the Cabinet except Daniel Webster, and an 
 address to the people by the Whig members of Con- 
 gress in which they solemnly repudiated their Presi- 
 dent. Congress at this time also, upon the occasion of 
 another of Tyler's vetoes, felt itself strong enough 
 to accept a report of one of its committees, to which 
 the veto message had been referred, condemning the 
 President's undue assumption of power. 
 
 But all this time coming events were casting their 
 long and ominous shadows "across the current of the 
 nation's life, and at last fate brought together again 
 a great crisis and a President strong enough to cope 
 with it, and for that purpose to dominate all the rest 
 of the government. Between 1861 and 1865, under 
 the imperative necessity of war, the President actu- 
 ally ruled the country, and the legislative branch of 
 government took little constructive part in the con- 
 duct of affairs, being generally content to register its 
 assent to indispensable measures of legislation and to 
 consider and devise the ways of raising the requisite 
 supplies. It is only necessary to recall three measures 
 of capital importance, all of which originated in the 
 White House and not the Capitol. These were the 
 first call for volunteers, the emancipation proclama- 
 
14 RELATION OF EXECUTIVE 
 
 tion, and the suspension of the writ of habeas corpus. 
 It is true the last was afterwards legitimized by act of 
 Congress, but it was originally justified as a war mea- 
 sure within the power of the President. The Consti- 
 tution may have been severely strained by the shocks 
 of the Civil War, but it was neither abrogated nor 
 suspended, and it emerged at the close with much less 
 modification than might have been expected. A dem- 
 ocracy can make successful war, and at the same time 
 preserve its free institutions and its representative sys- 
 tem of government provided it lives under a con- 
 stitution as wisely ordered as that of the United States, 
 and provided it is vigilantly concerned that the liber- 
 ties of the individual, placed in pledge for the com- 
 mon good while war rages, shall be reclaimed upon 
 the return of peace. 
 
 Of Lincoln's successor little need be said, except that 
 his inglorious administration witnessed a complete re- 
 versal of the division of power as between the Presi- 
 dent and Congress, and indeed showed how far the 
 legislature can go in putting the curb upon a President, 
 if the latter lacks the transcendent gifts of leadership 
 and likewise the great opportunity afforded by war or 
 national peril. Andrew Johnson's stubbornness was 
 ineffectual in the face of the resolute will of Congress. 
 That body assumed the command. Repeatedly it en- 
 forced its will by overriding his vetoes. It submitted 
 the Fourteenth Amendment to the states against the 
 President's expressed disapproval. It put through its 
 own program of reconstruction for the South. It 
 sought persistently to restrict the President's authority 
 within the narrowest possible constitutional limits, as 
 
POWER TO LEGISLATION 15 
 
 by the act which took from him the power to proclaim 
 a general amnesty, that which virtually deprived him 
 of the command of the army, and that which pre- 
 vented him from removing appointive officers. To 
 watch and control the executive, Congress remained in 
 practically continuous session. Finally the House im- 
 peached the President and the Senate tried him, though 
 the two-thirds majority necessary for a conviction 
 could not be made to cohere. 
 
 From 1865 to 1898 no one of the successive Presi- 
 dents stands forth from the background of a generally 
 prosaic history as conspicuously a national leader, nor 
 as exercising any remarkable influence over Congress 
 either in the policy or the details of legislation. Presi- 
 dent Cleveland, it is true, was a man of vigor and of 
 indomitable will; he freely exercised the power of the 
 veto, and his views and plans often ran counter to 
 those of the legislative body. But only twice in his 
 career did opportune circumstance give him room to 
 bring to the front the latent power of the presidency 
 and elevate him to a position of commanding author- 
 ity. The first occasion was the sending of federal 
 troops to Chicago to put an end to the great railroad 
 strike. The second was his defiance to Great Britain 
 in the famous message to Congress concerning the 
 Venezuelan boundary dispute. In both these crises, it 
 must be admitted, Mr. Cleveland manifested a spirit 
 not unworthy to be compared with that of the great 
 Presidents of early days. And in both, his unhesitat- 
 ing initiative helped to vindicate the somewhat clouded 
 greatness of the presidential office. 
 
 Nevertheless, these were but isolated illustrations of 
 
16 RELATION OF EXECUTIVE 
 
 the possibilities of executive leadership. Lacking simi- 
 lar occasions for the putting forth of presidential 
 power, they made no permanent change in its effective- 
 ness. And indeed the period about the close of Cleve- 
 land's first administration has appeared to many as 
 the time when the influence of the executive so far 
 as concerns any actual control over the formulation of 
 policies or their enactment into laws had sunk to the 
 very nadir. It was in 1889 that Lord Bryce, admit- 
 tedly the shrewdest and best-informed of all foreign 
 observers of the American government at work, gave 
 this account of the matter: 'The President himself, 
 although he has been voted into office by his party, is 
 not necessarily its leader, nor even one among its most 
 prominent leaders. Hence he does not sway the coun- 
 cils and guide the policy of those members of Congress 
 who belong to his own side. The expression of his 
 wishes conveyed in a message has not necessarily any 
 more ecect on Congress than an article in a prominent 
 party newspaper. No duty lies on Congress to take 
 up a subject to which he has called attention as need- 
 ing legislation; and in fact, the suggestions which he 
 makes, year after year, are usually neglected, even 
 when his party has a majority in both houses, or when 
 the subject lies outside party lines/' 3 And later in the 
 same volume it is said: "Congress, though it is no 
 more respected or loved by the people now than it was 
 seventy years ago, though it has developed no higher 
 capacity for promoting the best interests of the state, 
 has succeeded in occupying nearly all the ground which 
 the Constitution left debatable between the President 
 3 Bryce, "American Commonwealth," (ist edn.) Vol. I, p. 206. 
 
POWER TO LEGISLATION 17 
 
 and itself, and would, did it possess a better internal 
 organization, be even more plainly than it now is the 
 supreme power in the government/' 4 More specifi- 
 cally in regard to the presidential messages, the same 
 author observed : "The message usually discusses the 
 leading questions of the moment, indicates mischiefs 
 needing a remedy, and suggests the requisite legisla- 
 tion. But as no bills are submitted by the President, 
 and as, even were he to submit them, no one of his 
 ministers sits in either house to explain and defend 
 them, the message is a shot in the air without practical 
 result. It is rather a manifesto, or declaration of opin- 
 ion and policy, than a step towards legislation. Con- 
 gress is not moved ; members go their own ways, and 
 bring in their own bills." 5 
 
 These are by no means isolated views. This opin- 
 ion of the practical position of the presidency was 
 shared not only by the statesmen but by the philosophi- 
 cal writers of that day. And even as much as nine 
 years later, Mr. E. L. Godkin was perfectly justified in 
 saying : "The President and every governor of a state 
 have the right to send what we call 'messages' to the 
 legislature, directing its attention to certain matters 
 and recommending certain action, but it is very rare 
 for these recommendations to have much effect. The 
 messages are rhetorical performances, intended to give 
 the public an idea of the capacity and opinions of the 
 writers rather than to furnish a foundation for law- 
 making." 6 
 
 4 Idem, Vol. I, p. 223. 
 
 5 Idem, Vol. I, p. 53. 
 
 G "Unforeseen Tendencies of Democracy" (1898), p. 105. 
 
i8 RELATION, OF EXECUTIVE 
 
 On the general subject of the presidential office, in 
 its actual functioning at this period of our history, we 
 should not omit to cite the testimony of a witness who, 
 at that time a professor in a minor college, was des- 
 tined not only to become President of the United 
 States but to exercise a more profound influence upon 
 the relative position of the office in our system of gov- 
 ernment, and indeed upon the whole current of Ameri- 
 can affairs, than any President since Washington. In 
 1887, Woodrow Wilson published the first edition of 
 his well-known work, "Congressional Government," 
 the very title of which is significant. In that book he 
 said: "The business of the President, occasionally" 
 great, is usually not much above routine. Most of the 
 time it is mere administration, mere obedience of di- 
 rections from the masters of policy, the standing com- 
 mittees. Except in so far as his power of veto con- 
 stitutes him a part of the legislature, the President 
 might, not inconveniently, be a permanent officer, the 
 first official of a carefully graded and impartially regu- 
 lated civil-service system, through whose sure series of 
 merit-promotions the youngest clerk might rise even 
 to the chief magistracy. He is part of the official 
 rather than of the political machinery of the govern- 
 ment, and his duties call rather for training than for 
 constructive genius." And again: "The plain ten- 
 dency is towards a centralization of all the greater 
 powers of government in the hands of the federal 
 authorities, and towards the practical confirmation of 
 those prerogatives of supreme overlordship which 
 Congress has been gradually arrogating to itself. The 
 central government is constantly becoming stronger 
 
POWER TO LEGISLATION 19 
 
 and more active, and Congress is establishing itself as 
 the one sovereign authority in that government." 7 
 
 Yet even at that time, those whose vision could pierce 
 beneath the surface did not fail to see that the great 
 powers of the presidency remained what they had al- 
 ways been. Though disused, they were not atrophied. 
 The restoration of their vigor, of their predominance, 
 but awaited the coincidence of the crisis and the plan. 
 What is more, there were those who could discern a 
 tendency which has since become a fact. Lord Bryce 
 said: "The weakness of Congress is the strength of 
 the President. Though it cannot be said that his office 
 has risen in power or dignity since 1789, there are 
 reasons for believing that it may reach a higher point 
 than it has occupied at any time since the Civil War. 
 The tendency everywhere in America to concentrate 
 power and responsibility in one man is unmistakable. 
 There is no danger that the President should become 
 a despot, that is, should attempt to make his will pre- 
 vail against the will of the majority. But he may have 
 a great part to play as a leader of the majority and the 
 exponent of its will. He is in some respects better 
 fitted both to represent and to influence public opinion 
 than Congress is." 8 
 
 It was again a foreign war which rescued the execu- 
 tive branch of the government from the secondary 
 place into which it had fallen, and placed in its hands 
 the attributes of initiative and command. The war 
 with Spain, the springing into immediate prominence 
 of the constitutional powers of the President as head 
 
 7 Wilson, "Congressional Government" (1887), PP- 254, 316. 
 
 8 Bryce, "American Commonwealth," Vol. II, p. 696. 
 
20 RELATION OF EXECUTIVE 
 
 of the military forces, the necessity of supporting his 
 plans and policies, and above all, the new set of inter- 
 national relations which resulted, compelling the 
 United States to take its place in the world's business 
 as a great power among great powers, and as the 
 guardian of far-distant peoples, these decked the 
 stage for the next act in the great drama. And the 
 President w r as not unequal to the role for which fate 
 had cast him. William McKinley's nature was the 
 very antithesis of an autocratic spirit. Gentle and 
 kindly, he had no lust for power, and sought always 
 to gain his ends rather by the reasonable methods of 
 persuasion than by the rude tactics of the bully. Yet 
 in his hands, even if more by the force of circum- 
 stances than as the result of his own purpose or desire, 
 the presidency rose again into the position of leader- 
 ship and even predominance. And it was to be fore- 
 seen that it would not again lapse into obscurity. This, 
 at any rate, was the prediction of Mr. Wilson. Two 
 years after the eventful summer of 1898, he wrote: 
 "It may be that the new leadership of the executive, 
 inasmuch as it is likely to last, will have a very far- 
 reaching effect upon our whole method of government. 
 It may give the heads of the executive departments a 
 new influence upon the action of Congress. It may 
 bring about as a consequence an integration which will 
 substitute statesmanship for government by mass 
 meetings/' "The war with Spain," he said in an- 
 other place, "again changed the balance of parts. For- 
 eign questions became leading questions again, as they 
 had been in the first days of the government, and in 
 them the President was of necessity leader. Our new 
 
POWER TO LEGISLATION 21 
 
 place in the affairs of the world has since that year of 
 transformation kept him at the front of our govern- 
 ment, where our own thoughts and the attention of 
 men everywhere is centered upon him." 9 
 
 About this time two other influences commenced to 
 operate powerfully in favor of the ascendancy of the 
 executive. One was a doctrine of political science, the 
 other a development of practical politics. On the one 
 hand, it began to be argued that leadership in the busi- 
 ness of government naturally belongs to the executive 
 arm, not the legislative. And this for two reasons. 
 The attitude of the legislator towards the conditions 
 with which the laws are to deal is more or less theo- 
 retic; that of the officers who carry the laws into actual 
 operation is always practical. The statesman in the 
 halls of the legislature may have some prevision of the 
 results of given legislation; but the man in the White 
 House or the governor's chamber is every day in per- 
 sonal touch with actual facts, conditions, and needs. 
 Again, whatever may be the abstract conception of 
 government, it is the fact that the executive, not the 
 legislature, reaps the praise or bears the blame of the 
 administration as a whole. And responsibility cannot 
 be at any rate should not be divorced from con- 
 trol. "Responsibility for the use of executive power 
 inevitably implies leadership. Executive power and 
 leadership cannot be separated. In both public and 
 private business, those who are charged with high 
 duties and who are made responsible for their proper 
 discharge must be leaders or failures. On the con- 
 
 9 Woodrow Wilson, "Constitutional Government in the United 
 States," (1908), p. 59. 
 
22 RELATION OF EXECUTIVE 
 
 trary, irresponsible official leadership means autocracy. 
 Irresponsible official leadership means domination by 
 the political boss/ 710 
 
 On the other hand, the epoch of which we are speak- 
 ing witnessed the revitalizing of an idea, old in prac- 
 tical politics, but which had fallen into decadence. 
 This was the conception of the President as the leader 
 of his party. There were periods, as we have seen, 
 when the President was not necessarily the leader of 
 his party, nor even one of its most influential mem- 
 bers. Among the later Presidents, some have gladly 
 accepted this office and its responsibilities ; others have 
 seen no way of escape from them. But it seems now 
 to have become an accepted rule that the President 
 must be regarded as the chief or head of the party 
 which has placed him in power, and that he must, at 
 least in all matters of a partisan .character, devote his 
 political activities (as distinguished from the routine 
 of administration) to guiding its counsels and secur- 
 ing its continuance in the control of the government. 
 Now a political party comes into power pledged to the 
 support of certain policies and purposes which have 
 been set forth in its platform. Moreover, the success- 
 ful candidate for the presidency, in his campaign 
 speeches, will have set forth these policies more defi- 
 nitely and will probably have stated more explicitly the 
 purposes he means to pursue. The result of the elec- 
 tion is regarded as a mandate from the people (at least 
 from the majority), and the party assumes the reins 
 of government with a more or less definite program, 
 which it is the business of its elected members to enact 
 
 10 "Municipal Research," May, 1915, p. 72. 
 
POWER TO LEGISLATION 23 
 
 into law. But who is to take the initiative in this? 
 The party probably has a majority in both houses of 
 Congress. If so, it has not less than 218 members in 
 the House of Representatives and not less than 49 in 
 the Senate. Among them may be several men possess- 
 ing influence, initiative, and other qualities of con- 
 structive statesmanship. But the leader of the party 
 is the President, and thus it becomes his business to 
 see to it that Congress redeems the party's pledges and 
 enacts the party's measures. In detail, some of these 
 measures may be highly objectionable to individual 
 members of Congress. It may even happen that a 
 particular measure, as an entirety, is regarded with 
 great disfavor by nearly all of them. But it is a party 
 measure; there is pressure from the party leader; the 
 welfare of the party is at stake; and no merely per- 
 sonal opinions or wishes must be allowed to interfere, 
 nor even substantial doubts whether the measure does 
 not violate the Constitution. 
 
 The accession of Theodore Roosevelt to the presi- 
 dency brought into play conditions which were almost 
 ideally adapted to work out an immense increase in 
 the power and domination of the executive. Much 
 was due to his own personality; less, but still an ap- 
 preciable part, to the occurrence of circumstances 
 which permitted his natural qualities strongly to as- 
 sert themselves. Here was a born leader of men, in- 
 tensely alert, energetic, courageous, and determined, 
 eager to make his will prevail, and glad to accept the 
 utmost measure of responsibility. Besides, he was 
 thoroughly convinced of what we have spoken of as a 
 concept of political science that the office of leader- 
 
24 RELATION OF EXECUTIVE 
 
 ship in government does not suit or belong to the legis- 
 lative branch, but is the natural duty and prerogative 
 of the executive. And the practical doctrine that the 
 chief magistrate of the state or nation is the leader of 
 his party had no dubious sound to him. On the con- 
 trary, he constantly sought to broaden it out into the 
 doctrine that he is the chief representative of the people 
 as a whole, and so, not so much the leader of this or 
 that party, as of the state or the nation. For in effect 
 it is hardly too much to say that Roosevelt, alone 
 among our Presidents up to that time, consistently be- 
 lieved that predominance in government rightfully be- 
 longs to the executive, and that it so belongs and 
 should be exercised, not merely for the meeting of 
 some special crisis or with reference to the enactment 
 or repeal of some particular measure, but continuously 
 and as a matter of fixed principle. 
 
 Actually he was not always able to translate these 
 theories into facts. Congress was by no means sub- 
 missive. The contest between the two branches of 
 government was more than once brought out into the 
 open and threatened to become critically serious. But 
 if, in Roosevelt's incumbency, the new hegemony of 
 the executive was not carved into an established fact, 
 at least it became clear that the older notions of the 
 President's place in the government were irretrievably 
 gone. 
 
 In his charmingly frank autobiography Mr. Roose- 
 velt shows us exactly the state of mind with which 
 he approached these questions, first as Governor of 
 New York and then as President of the United States, 
 and the processes which he employed to make his 
 
POWER TO LEGISLATION 25 
 
 leadership effective. "In theory," he says, "the ex- 
 ecutive has nothing to do with legislation. In prac- 
 tice, as things now are, the executive is or ought to be 
 peculiarly representative of the people as a whole. As 
 often as not the action of the executive offers the only 
 means by which the people can get the legislation they 
 demand and ought to have. Therefore a good ex- 
 ecutive, under the present conditions of American po- 
 litical life, must take a very active interest in getting 
 the right kind of legislation, in addition to performing 
 his executive duties with an eye single to the public 
 welfare. More than half of my work as Governor was 
 in the direction of getting needed and important legis- 
 lation. I accomplished this only by arousing the peo- 
 ple, and riveting their attention on what was done." 11 
 An excellent illustration of the exertion of executive 
 influence upon legislation, given a strong and determ- 
 ined executive, is afforded by the following incident, 
 related by Mr. Roosevelt in the same volume, which 
 occurred while he was Governor of New York: "I 
 had made up my mind that if I could get a show in the 
 legislature the bill would pass, because the people had 
 become interested and the, representatives would 
 scarcely dare to vote the wrong way. Accordingly, on 
 April 27, 1899, I sent a special message to the As- 
 sembly, certifying that the emergency demanded the 
 immediate passage of the bill. The machine leaders 
 were bitterly angry, and the Speaker actually tore up 
 the message without reading it to the Assembly. That 
 night they were busy trying to arrange some device 
 for the defeat of the bill, which was not difficult, as 
 11 Theodore Roosevelt, "Autobiography," p. 292. 
 
26 RELATION OF EXECUTIVE 
 
 the session was about to close. At seven the next 
 morning I was informed of what had occurred. At 
 eight I was in the capitol at the executive chamber, 
 and sent in another special message which opened as 
 follows: 'I learn that the emergency message which 
 I sent last evening to the Assembly on behalf of the 
 Franchise Tax Bill has not been read. I therefore 
 send hereby another message on the subject. I need 
 not impress upon the Assembly the need of passing 
 this bill at once.' I sent this message to the Assembly 
 by my secretary, with an intimation that if this were 
 not promptly read I should come up in person and 
 read it. Then, as so often happens, the opposition 
 collapsed, and the bill went through both houses with 
 a rush." 12 
 
 It was also characteristic of President Roosevelt 
 and a factor in the working cut of the whole problem 
 of the relation of these two branches of government 
 that he resisted with the utmost energy any attempt on 
 the part of Congress to define the powers of the presi- 
 dency within narrower limits than those which he con- 
 ceived as its rightful bounds. On this point also we 
 are able to cite his own testimony. In regard to his 
 controversy with Congress over the appointment of 
 various unsalaried commissions, he has this to say in 
 his autobiography : "The report of the Country Life 
 Commission was transmitted to Congress by me on 
 February 9, 1909. In the accompanying message I 
 asked for $25,000 to print and circulate the report and 
 to prepare for publication the immense amount of 
 valuable material collected by the commission but still 
 
 12 Idem, p. 311. 
 
POWER TO LEGISLATION 27 
 
 unpublished. The reply made by Congress was not 
 only a refusal to appropriate the money, but a positive 
 prohibition against continuing the work. The Tawney 
 amendment to the Sundry Civil Bill forbade the Presi- 
 dent to appoint any further commissions unless specifi- 
 cally authorized by Congress to do so. Had this 
 prohibition been enacted earlier and complied with, 
 it would have prevented the appointment of the six 
 Roosevelt commissions. But I would not have com- 
 plied with it. ... As what was almost my last offi- 
 cial act, I replied to Congress that if I did not believe 
 the Tawney amendment to be unconstitutional, I would 
 veto the Sundry Civil Bill which contained it, and that 
 if I were remaining in office I would refuse to obey 
 it." 13 
 
 But the ideas of Roosevelt as President went much 
 further than this. He was fond of referring his con- 
 ception of the duties and responsibilities of the office 
 to the standards of Jackson and of Lincoln. But what 
 he did, consciously or unconsciously, was to revive 
 and apply the doctrine of Hamilton, that the Consti- 
 tution contains a general grant of executive power, 
 which is not restricted to the specific functions there- 
 after enumerated, but on the contrary is circumscribed 
 only in so far as the Constitution explicitly limits it. 
 Of course it is a necessary deduction from this theory 
 that the President can exert his powers in any direc- 
 tion that is not barred by the Constitution. And this 
 is the very core of the problerfi. If the President must 
 wait upon Congress and do only what it authorizes him 
 to do, he is subordinate to Congress save only to the 
 
 13 Idem, p. 430. 
 
28 RELATION OF EXECUTIVE 
 
 extent to which his personal influence may prevail. If 
 not, he is an independent agency and in many impor- 
 tant matters may take the initiative. Mr. Roosevelt's 
 side of the argument is thus set forth by himself : 
 
 'The most important factor in getting the right spirit 
 in my administration, next to the insistence upon cour- 
 age, honesty, and a genuine democracy of desire to serve 
 the plain people, was my insistence upon the theory that 
 the executive power is limited only by specific restrictions 
 and prohibitions appearing in the Constitution or im- 
 posed by the Congress under its constitutional powers. 
 My view was that every executive officer, and above all 
 every executive officer in high position, was a steward of 
 the people, bound actively and affirmatively to do all he 
 could for the people, and not to content himself with 
 the negative merit of keeping his talents undamaged in a 
 napkin. I declined to adopt the view that what was im- 
 peratively necessary for the nation could not be done by 
 the President unless he could find some specific authori- 
 zation to do it. My belief was that it was not only his 
 right but his duty to do anything that the needs of the 
 nation demanded unless such action was forbidden by 
 the Constitution or by the laws. Under this interpreta- 
 tion of executive power, I did and caused to be done 
 many things not previously done by the President and 
 the heads of the departments. I did not usurp power, 
 but I did greatly broaden the use of executive power. 
 In other words, I acted for the public welfare, I acted 
 for the common well-being of all our people, whenever 
 and in whatever manner was necessary, unless prevented 
 by direct constitutional or legislative prohibition." 14 
 
 Again, of the steps taken to settle the anthracite coal 
 strike in 1902, Mr. Roosevelt says : 
 
 "Very much the most important action I took as re- 
 gards labor had nothing to do with legislation, and rep- 
 resented executive action which was not required by the 
 Constitution. It illustrated as well as anything that I 
 14 Theodore Roosevelt, "Autobiography," p. 371. 
 
POWER TO LEGISLATION 29 
 
 did the theory which I have called the Jackson-Lincoln 
 theory of the presidency ; that is, that occasionally great 
 national crises arise which call for immediate and vigo- 
 rous executive action, and that in such cases it is the duty 
 of the President to act upon the theory that he is the 
 steward of the people, and that the proper attitude for 
 him to take is that he is bound to assume that he has the 
 legal right to do whatever the needs of the people de- 
 mand, unless the Constitution or the laws explicitly for- 
 bid him to do it." ("Autobiography," p. 479.) 
 
 One further illustration will suffice to make clear 
 both Mr. Roosevelt's conception of the presidency and 
 its working in actual practice. He made an agree- 
 ment with the governmental authorities of Santo Do- 
 mingo by which the custom houses of that country 
 were placed in the hands of American officers, and it 
 was stipulated that 45 per cent of the revenue collected 
 was to be turned over to the Santo Domingan gov- 
 ernment, and the remainder placed in a sinking fund 
 in New York for the benefit of the creditors of that 
 government. As these creditors were mostly Euro- 
 peans, and two or three foreign governments were 
 threatening concerted action to secure the payment of 
 the claims of their nationals, this action was taken for 
 the purpose of averting foreign intervention. Con- 
 cerning this matter, he says in his "Autobiography" 
 (P- 524) : 
 
 'The Constitution did not explicitly give me the power 
 to bring about the necessary agreement with Santo Do- 
 mingo. But the Constitution did not forbid my doing 
 what I did. I put the agreement into effect, and I con- 
 tinued its execution for two years before the Senate 
 acted ; and I would have continued it until the end of my 
 term, if necessary, without any action by Congress. But 
 it was far preferable that there should be action by Con- 
 gress, so that we might be proceeding under a treaty 
 
30 RELATION OF EXECUTIVE 
 
 which was the law of the land, and not merely by a di- 
 rection of the chief executive which would lapse when 
 that particular executive left office. I therefore did my 
 best to get the Senate to ratify what I had done." 
 
 The next President brought to the office an almost 
 diametrically opposite theory of the executive. To the 
 conservative and well-trained legal mind of Mr. Taft 
 the idea of a government by personal impulse, or even 
 by the exercise of the judgment and discretion of any 
 one man, was little short of abhorrent. In his view, 
 it was incorrect to describe the President as the "stew- 
 ard of the people" or as the "guardian of the public 
 welfare." To be sure (so he might have reasoned) 
 the President is not in any proper sense the "servant" 
 of the people; he is the chief magistrate of the nation, 
 charged with very high and important duties, vested 
 with a wide measure of discretion in their discharge, 
 and laden with heavy responsibilities. Circumstances 
 sometimes arise which make him the guide and leader 
 of the people. But the orbit of his activities is always 
 strictly marked out by the Constitution. And his every^ 
 step must have the justification of law. For, funda- 
 mentally, ours is a government of law. Whatever is 
 done must have the warrant of law. Now the law- 
 making power of the nation is vested in Congress. 
 True, the President may "recommend" to Congress 
 measures which he conceives to be in the public inter- 
 est and he can veto bills which appear to him to be 
 inconducive to the public welfare. But that is as far 
 as he can constitutionally go. What new laws are 
 needed? What old laws should be amended or re- 
 pealed? How far, within the possible limits of legis- 
 
POWER TO LEGISLATION 31 
 
 lative achievement as distinguished from individual 
 initiative or concerted individual action, is it possible 
 to ameliorate the condition of the general public? The 
 solution of these questions is for the legislative branch 
 of the government, not the executive. The people's 
 elected representatives in the houses of Congress are 
 their stewards and the guardians of their welfare. 
 That is w r hat they are elected for. 
 
 That the foregoing expresses fairly, at least in its 
 essential outlines, President Taft's understanding of 
 our system of government and of the place of the 
 executive in it, may be gathered from his writings 
 published after he retired from office. In particular, 
 he has this to say: 
 
 "The true view of the executive functions is, as I con- 
 ceive it, that the President can exercise no power which 
 cannot be fairly and reasonably traced to some specific 
 grant of power, or justly implied and included within 
 such express grant as proper and necessary to its exer- 
 cise. Such specific grant must be either in the federal 
 Constitution or in an act of Congress passed in pursuance 
 thereof. There is no undefined residuum of power which 
 he can exercise because it seems to him to be in the public 
 interest. . . . My judgment is that the view ascribing an 
 undefined residuum of power to the President is an un- 
 safe doctrine, and that it might lead under emergencies 
 to results of an arbitrary character, doing irremediable 
 injustice to private rights. The mainspring of such a 
 view is that the executive is charged with responsibility 
 for the welfare of all the people in a general way, that 
 he is to play the part of a universal Providence and set 
 all things right, and that anything that in his judgment 
 will help the people he ought to do, unless he is expressly 
 forbidden to do it. The wide field of action that this 
 would give to the executive one can hardly limit." 15 
 
 15 William H. Taf t, "Our Chief Magistrate," pp. 139-144- 
 
32 RELATION OF EXECUTIVE 
 
 And yet it was too late to return to any such theory 
 of executive power as might have been entertained a 
 generation before. Political developments had pre- 
 vented that. The position and responsibility of the 
 President as the leader of his party was no longer a 
 proposition for debate, nor a phenomenon of occasion- 
 al personal volition. It was an unshakable fact and 
 a permanent institution. President Taft accepted it 
 with that abundant good sense and appreciation of the 
 practical which always characterized him, as witness 
 his firm interference to adjust the differences between 
 the two houses of Congress in the matter of the tariff 
 bill in 1909 and to force the passage of an act which 
 would in some measure redeem the promises of the 
 party. But there is ground to believe that the theory 
 of the presidency which had formed itself in the mind 
 of the sound constitutional lawyer and ex- judge, Wil- 
 liam Howard Taft, was not precisely coincident with 
 that other theory upon which President Taft, leader 
 of the Republican party, found, himself obliged at 
 times to act. And it is perhaps fair to surmise that 
 the reconciliation was not effected without an effort. 
 
 Mr. Taft's successor became the leader of the 
 nation in a stupendous war. An autocratic monarch 
 always has within his grasp the controls which operate 
 and guide the war machine; but war is a business to 
 which a democracy is very ill adapted. In the history 
 of the Roman Republic it was more than once neces- 
 sary to appoint a dictator in order to save the state. 
 And any modern republic, if it would participate ef- 
 fectively in a war of the first magnitude, must con- 
 sent to a similar concentration of power in the hands 
 
POWER TO LEGISLATION 33 
 
 of one man or a few men. Such a course is abnormal 
 for a self-governing people. But war also is utterly 
 abnormal. And sometimes heroic measures must be 
 taken to repel a gigantic danger. The specter of war 
 is not to be exorcised by the deliberate processes of 
 peace. Fortunately for us, however, this does not 
 mean that the Constitution is abrogated or even sus- 
 pended, in so much as a single line, when the nation be- 
 comes an army. The wise foresight of its framers 
 contemplated even such a crisis as that through which 
 we have recently passed, and its ample provisions have 
 been found sufficient to encompass all measures es- 
 sential to the country's preservation and to the effi- 
 cient putting forth of its strength for the winning of 
 the war. For this supreme purpose the people, through 
 their representatives in the houses of Congress, 
 delegated to their President powers of such vast mag- 
 nitude and range that their parallel is not to be found 
 in all the pages of history. For since the days of Sulla 
 at least, no other man has ever held, legally and by the 
 freewill gift of his fellow citizens, such unrestricted 
 control over their lives and fortunes. But he held 
 these extraordinary powers in trust. They were not a 
 part of our normal governmental life. Their deposit 
 was but temporary and to meet an emergency. Upon 
 the return of peace, the trust was accomplished and the 
 deposit must be restored. 
 
 The experience through which the country has been 
 passing, the necessary leadership of the executive as 
 both the master of war and the administrator of the 
 people's affairs, the determination by him of the meas- 
 ures which he judged necessary for the success of the 
 
34 RELATION OF EXECUTIVE 
 
 war, the attitude of Congress, as shown in its eventual 
 willingness (but not without some stumbling and expos- 
 tulation) to grant him whatever authority he deemed 
 essential, the gradual habituation of the people to the 
 regulation of their daily lives by all ranks of admin- 
 istrative officers all these things must have a pro- 
 found influence upon the position of the presidency in 
 our system of government. How far that influence 
 will extend and what will be its final result lies behind 
 the veil of the future. And as prophecy does not fall 
 within the scope of this study, but only history, it is 
 only the first administration of President Wilson that 
 can be passed under review for the purpose of examin- 
 ing into the growth of executive power. 
 
 That administration began with a clear field for the 
 executive authority, since his party commanded a ma- 
 jority in both houses of Congress. As respects the 
 House of Representatives at least, candor compels the 
 admission that the results of the election reflected no 
 great credit upon the electorate. With certain notable 
 exceptions, the great body of the administration's fol- 
 lowers in the lower house were much below the con- 
 gressional average in respect to intelligence, experi- 
 ence, and capacity for the management of large affairs. 
 In addition to this, the record of the Democratic 
 party, up to that time, had shown it to be strong and 
 effective in opposition, but curiously inept, when placed 
 in power, for the carrying on of constructive work in 
 legislation, chiefly in consequence of its inveterate ten- 
 dency, when in control of the government, to break 
 out into internecine quarrels and to dissolve into ir- 
 reconcilable factions. More than ever, therefore, the 
 
POWER TO LEGISLATION 35 
 
 President was placed in the position of leader of his 
 party and of the party's representatives in the Con- 
 gress, and more than ever, Congress was amenable to 
 presidential guidance and persuasion. Quite frankly 
 the members of the legislature looked to the President 
 to tell them what to do, and quite as frankly the Presi- 
 dent accepted the responsibility. It will not have been 
 forgotten that his first inaugural address outlined in 
 general terms, but with plain indications as to specific 
 measures, the program of legislation which the party 
 proposed to put into effect. And as an evidence of his 
 desire for close co-operation with the legislative body, 
 and to extend his powers of recommendation, advice, 
 and persuasion to the utmost legitimate limits, it will 
 be remembered that Mr. Wilson revived Washington's 
 custom of reading his messages to* the Congress as- 
 sembled in joint session, instead of sending them by 
 the hand of a secretary. About this time also it be- 
 came the custom to apply the name "administration 
 bills" to those projects of legislation which were either 
 drafted in the executive departments or known to con- 
 stitute a part of the President's program, as distin- 
 guished from measures which had their origin in com- 
 mittees or in the initiative of an individual member. 
 
 The country at large seemed to accept as quite nat- 
 ural the leadership of the White House. As a curious 
 bit of evidence bearing on this point it will be recalled 
 that, in the summer of 1916, when the President was 
 endeavoring by mediation and conciliation to avert the 
 threatened general railroad strike, the committee of 
 railroad presidents who were in conference with him 
 undertook to concede the demand of the employes for 
 
36 RELATION OF EXECUTIVE 
 
 an eight-hour day if he would give them an absolute 
 guaranty that he would secure from Congress legis- 
 lation which would permit them to raise freight rates. 
 No such suggestion emanated from the President. 
 But the circumstances shows the public conception of 
 him, then existing, as the master of Congress and the 
 dominating figure, not in party politics but in legis- 
 lation. 
 
 Substantially all the laws desired by the President 
 in his first administration were enacted. But Congress 
 was not completely docile. At times there were strong 
 voices of dissent and of remonstrance against the 
 goad. For instance, the child-labor bill was not passed 
 through the Senate without the greatest difficulty. It 
 was necessary for the President to hold personal con- 
 ference with some of the Senators who were most de- 
 termined in their opposition. Several members of that 
 body were by no means convinced that the act, if 
 passed, would be constitutional; but when they gave 
 voice to their doubts, they were assured by another 
 Senator that, in his judgment, the presidential assump- 
 tion of legislative functions was a greater menace to 
 the Constitution than the enactment of any given mea- 
 sure would be. Perhaps the most extreme denuncia- 
 tion of the tendency in this direction was that ex- 
 pressed by Senator Works of California in his vale- 
 dictory address, delivered January 4, 1917. He is 
 reported to have said: 
 
 "The fear of judicial usurpation of power was upper- 
 most in the mind of Mr. Jefferson, but he and others were 
 able to see the danger now confronting us, of the un- 
 warranted and unconstitutional usurpation of power by 
 
POWER TO LEGISLATION 37 
 
 the President, amounting practically to a dictatorship, 
 and the complacent surrender of its powers and functions 
 and abandonment of its duties and obligations by the 
 Congress of the United States. The tendency towards 
 centralized, unchecked, and unlimited power on the part 
 of the President has existed for some years past, and 
 has grown rapidly worse and more offensive in the last 
 four years. Never in the entire history of the country 
 has the President so completely and defiantly usurped the 
 law-making powers of the government and dictated and 
 forced the course of Congress, and never has the Con- 
 gress been so submissive or so subservient to a power 
 outside itself. Never in all our history have we come so 
 near to a despotic government by a dictator as during 
 the last four years. Members of Congress have, under 
 the lash of executive and party domination, surrendered 
 their conscientious convictions and voted against their 
 own sentiments of right and justice. We have on the 
 statute books today not one but many enactments that 
 are the laws of a dictator and not the free and voluntary 
 acts of the Congress, and we have men holding offices 
 of the highest trust whose confirmation was the result of 
 the same dictatorial power and not the free and volun- 
 tary action of this body." 16 
 
 Dissociated from the abnormal conditions created by 
 the war, what, then, is the present position of the 
 presidency? The answer is that the American Presi- 
 dent, without losing anything of his constitutional 
 authority or anything of the prestige and influence 
 originally planned for him, has drawn to himself pow- 
 ers which very much resemble those of a British prime 
 minister. The difference, of course, is that the Presi- 
 dent is not dependent upon the breath of parliamentary 
 favor, and that no hostile majority against him, not 
 even the defeat of his most cherished and most earn- 
 
 16 Congressional Record, Vol. 54, part I, p. 865 ; 64th Con- 
 gress, 2d Session, January 5, 1917. 
 
38 RELATION OF EXECUTIVE 
 
 estly advocated measures, could force his resignation. 
 He assumes office charged with responsibility to en- 
 act the party's program. But if he fails in this, the 
 responsibility is neither his nor the party's; it is cast 
 upon recalcitrant members of Congress. The Presi- 
 dent is not forced, in any mishap whatever, to "go to 
 the country" in the English sense. Mr. Wilson him- 
 self has said: 
 
 "It is becoming more and more true, as the business of 
 the government becomes more and more complex and 
 extended, that the President is becoming more and more 
 a political and less and less an executive officer. His ex- 
 ecutive powers are in commission, while his political 
 powers more and more center and accumulate upon him 
 and are in their very nature personal and inalienable." 17 
 
 The results of these developing tendencies have been 
 summed up, with some rhetorical exaggeration but 
 none the less with substantial truth, by a writer in The 
 New Republic in the following terms : 
 
 "The private individual of Congress is dead, and it is 
 surely important that there is none to sing his requiem. 
 The traditional separation of powers has broken down 
 for the simple reason that it results only in confounding 
 them. Congress may delay presidential action ; but there 
 is evidence enough, even apart from the fact of war, that 
 it is finding it increasingly difficult ultimately to thwart 
 it. For congressional debate has largely ceased to influ- 
 ence the character of public opinion. . . . Nor is the 
 individual member of Congress alone in his eclipse. The 
 congressional committees have become less the moulders 
 of legislation than the recipients who may alter its de- 
 tails. Even on the committees themselves the adminis- 
 tration now has its avowed spokesmen. They seem to 
 act very much as a British minister in charge of a meas- 
 
 17 Woodrow Wilson "Constitutional Government in the United 
 States" (1908), p. 66. 
 
POWER TO LEGISLATION 39 
 
 ure in the House of Commons. They interpret the ex- 
 ecutive will ; and we have seen recalcitrant members in- 
 terviewed on policy by the President himself. The key 
 to the whole, in fact, has come to lie in the President's 
 hands. The pathway of decision is his own, influenced 
 above all by his personal cast of mind and by the few 
 who can obtain direct access to him. This is not, it is 
 clear, the government envisaged by the Constitution. 
 Equally certain it is not a government which meets with 
 the approval of Congress. But outside of Washington, 
 the old suspicion of executive power is dead, and popu- 
 lar sentiment has become so entirely uninterested in the 
 processes of politics as to ask only for substantial results. 
 In such an aspect, executive action is far more valuably 
 dramatic than the action of Congress." 18 
 
 The fact remains, however, that certain individual 
 members of Congress remember the ancient prestige 
 of that body and deplore its present subservience to the 
 executive branch. In them, perhaps, lies the best hope 
 of deliverance from executive usurpation. A vigor- 
 ous expression of this sentiment may be seen in cer- 
 tain remarks addressed to the House by Representa- 
 tive James L. Slayden of Texas, on January 15, 1919, 
 together with a shrewd diagnosis of the situation as 
 being due in no small measure to the subordination of 
 principles, of individual and corporate liberty and in- 
 dependence, and even of respect for the Constitution 
 itself to the exigencies of party politics. He asked : 
 
 "What is the cause of this degradation of the first- 
 born of the Constitution ? In thinking it over, I have not 
 been able to avoid the conclusion that it is due to a volun- 
 tary surrender of constitutional rights and ^ duties that 
 only need to be asserted to be respected. [Applause.] 
 We surrender without a struggle rights that some of our 
 
 18 "The Future of the Presidency," The New Republic, Sep- 
 tember 29, 1917. 
 
40 RELATION OF EXECUTIVE 
 
 British ancestors died for. I have also reached the con- 
 clusion that unreasoning partisanship has something to 
 do with this growth of a menace to the rights and liber- 
 ties of the people through breaking down their representa- 
 tives. . . . When devotion to mere party organization 
 becomes so strong that principles are forgotten and loyalty 
 to the instrument of their application is regarded as a 
 thing of supreme importance, we have reached the danger 
 line. That view has grown alarmingly in this body. I 
 have heard members jestingly say that they had raped the 
 Constitution so often that one more outrage, if in the 
 party interest, was of small importance. To jest about 
 the Constitution and the solemn oath we all take to sup- 
 port and defend it is as offensive to the moral sense as 
 making jokes about a disregard of truth and personal 
 honesty. But these things help one to understand the con- 
 tempt with which legislative bodies are treated in the 
 press and by the public they serve. Yet, in spite of this 
 yielding attitude, I hope and I believe that the Ameri- 
 can Congress, which is a great body, representing a 
 mighty people, will assert itself and will regain its an- 
 cient standing and prestige." 19 
 
 19 Congressional Record, 6sth Congress, 3d Session, Vol. 57, 
 page 1529. 
 
II 
 
 EXECUTIVE INITIATIVE IN LEGISLATION; 
 ABROAD 
 
 If it is now necessary to reconsider the theory of 
 the separation of governmental powers, and to inquire 
 whether and to what extent the executive officers of 
 the states and the United States should be legally ac- 
 corded a direct participation in the process of making 
 the laws, by means of the right to initiate and intro- 
 duce bills in the legislative assemblies, it will be useful 
 to bring to the question a knowledge of the constitu- 
 tional provisions and parliamentary practices, in this 
 regard, which prevail in the other self-governing coun- 
 tries of the world. 
 
 In Great Britain, the government is vested in the 
 Prime Minister and his associates in the cabinet. They 
 maintain themselves in power by the continuous con- 
 fidence and support of the House of Commons, as 
 manifested by their unbroken control of a substantial 
 majority in that house. Until about the middle of 
 the nineteenth century, the functions of the ministers 
 were chiefly executive, and their rights in regard to 
 the formulation and support of legislative measures 
 were not widely different from those of any other 
 member of Parliament. But following the Reform 
 Act of 1832, the necessity of dealing with the condi- 
 tions of the times by means of laws of great and wide- 
 
42 RELATION OF EXECUTIVE 
 
 spread importance, coupled with the increasing com- 
 plexity of the details of legislation, almost insensibly 
 led the legislators of England to look to the heads of 
 the great departments of government (having seats in 
 Parliament) as the natural source and origin of new 
 laws, while the centering of both power and responsi- 
 bility in the cabinet ministers seemed to set them apart 
 as the proper group to assume the framing and engi- 
 neering of measures of national or imperial impor- 
 tance. Thus the parliamentary system grew. And at 
 present the ministers not only have a recognized pre- 
 cedence in the introduction of bills, but they have a 
 virtual monopoly of the initiative as respects all bills 
 of general public interest. 
 
 "Parliament is still, as it was originally intended to be, 
 the grand assize or session of the nation, to criticize and 
 control the government. It is not a council to admin- 
 ister it. It does not originate its own bills, except in 
 minor matters which seem to spring out of public opinion 
 or out of the special circumstances of particular inter- 
 ests, rather than out of the conduct of government. 
 Every legislative proposition of capital importance comes 
 to it from the ministers. The duties of the ministers are 
 not merely executive ; the ministers are the government. 
 They look to Parliament, not for commands what to do, 
 but for support in their own programs, whether of legal 
 change or of political policy." 1 
 
 Nothing in the British constitution takes from the 
 private member of Parliament his right to introduce 
 a bill on any subject he may please. And to a limited 
 extent his right is still in exercise. Projects of legis- 
 lation originating with members who are not in the 
 
 1 Woodrow Wilson, "Constitutional Government in the United 
 States" (1908), p. 84. 
 
POWER TO LEGISLATION 43 
 
 ministry are called either "private bills" or "private 
 members' bills/' The former are proposed acts deal- 
 ing with local or individual concerns, very much like 
 the private bills before our state legislatures. The lat- 
 ter are measures having to do with matters of general 
 public concern. Ten or a dozen of such bills may be 
 enacted into law in the course of a legislative year. 
 But for the most part they are non-contentious. It is 
 said that only one or two will arouse such strong dif- 
 ferences of opinion as to provoke a demand for a di- 
 vision. A private member with a bill of such a char- 
 acter as not to win general acquiescence has to tread a 
 path beset with difficulties. In the first place, standing 
 orders allot to the disposal of private members so 
 small a part of the time the House is in session not 
 more than one-tenth of the time of the actual sittings 
 that there is necessarily keen competition for recog- 
 nition and opportunity to explain and defend their 
 bills. Again, the course of parliamentary procedure is 
 such that the persistent and determined opposition of 
 even a single member, especially if he be a skillful tac- 
 tician, will almost invariably block the passage of such 
 a bill. It results, therefore, that the British statutes 
 which have not been fathered by the ministry, but owe 
 their origin to a private member, are few in number 
 and seldom important in character; and that is be- 
 coming more and more noticeably the rule. 
 
 The present situation has been admirably stated by 
 President Lowell in his authoritative work on "The 
 Government of England/' 2 as follows : 
 
 2 Vol. I, p. 326. 
 
44 RELATION OF EXECUTIVE 
 
 "To say that at present the cabinet legislates with the 
 advice and consent of Parliament would hardly be an 
 exaggeration ; and it is only the right of private members 
 to bring in a few motions and bills of their own, and to 
 criticize government measures, or propose amendments 
 to them, freely, that prevents legislation from being the 
 work of a mere automatic majority. It does not follow 
 that the action of the cabinet is arbitrary, that it springs 
 from personal judgment divorced from all dependence on 
 popular or parliamentary opinion. The cabinet has its 
 finger always on the pulse of the House of Commons, 
 and especially of its own majority there; and it is ever 
 on the watch for expressions of public feeling outside. 
 Its function is in large part to sum up and formulate the 
 desires of its supporters, but the majority must accept 
 its conclusions, and, in carrying them out, becomes well- 
 nigh automatic." 
 
 In view of tendencies in American government al- 
 ready pointed out the increasing control of the ex- 
 ecutive over the legislative branch, the increasing dis- 
 position to ascribe a sort of special eminence to "ad- 
 ministration bills/' we may find ground for very 
 thoughtful consideration in the last sentence of the ex- 
 tract just quoted. The result of the parliamentary 
 system is that the members of the majority party in 
 the legislature inevitably become mere automata. They 
 must unhesitatingly accept and vote for every measure 
 put forward by the administration. Otherwise they 
 put the ministry in peril and may precipitate its down- 
 fall. If they would continue their party and them- 
 selves in power, they must let the ministers do their 
 legislative thinking. Even in the matter of amending 
 the cabinet's bills no one has a free hand. To quote 
 again from President Lowell : 
 
 "Following upon the responsibility for the introduction 
 and passage of all important measures has come an in- 
 
POWER TO LEGISLATION 45 
 
 / creasing control by the ministers over the details of their 
 measures. It was formerly maintained that the House 
 could exercise a great deal of freedom in amending bills, 
 without implying a loss of general confidence in the cabi- 
 net. But of late, amendments carried against the oppo- 
 sition of the Treasury Bench have been extremely rare. 
 In fact only four such cases have occurred in the last ten 
 years. This does not mean that the debates on the de- 
 tails of bills are fruitless. On the contrary, it often hap- 
 pens that the discussion exposes defects of which the 
 government was not aware, or reveals an unsuspected but 
 wide-spread hostility to some provision; and when this 
 happens the minister in charge of the bill often declares 
 that he will accept an amendment, or undertakes to pre- 
 pare a clause to meet the objection which has been pointed 
 out. But it does mean that the changes in their bills are 
 made by the ministers themselves after hearing the de- 
 bate, and that an amendment, even of small consequence, 
 can seldom be carried without their consent. This is 
 the natural outcome of the principle that the cabinet is 
 completely responsible for the principal public measures, 
 and hence must be able to control all their provisions so 
 long as it remains in office." 3 
 
 It must not be forgotten that the tenure of an Eng- 
 lish ministry is precarious, not fixed, since it depends 
 on the continued support of the House of Commons. 
 The defeat of any important government measure by 
 a decisive majority is accepted as voicing a want of 
 confidence in the ministry. This necessitates the resig- 
 nation of the cabinet and the formation of a new min- 
 istry, and perhaps even the dissolution of Parliament 
 and an appeal to the electorate, with the result that the 
 party returned to power and charged to compose a 
 ministry is regarded as having received a "mandate" 
 from the people as to the particular measure or meas- 
 ures which have been the subject of contention. The 
 
 8 Lowell, "Government of England," Vol. I, p. 317. 
 
46 RELATION OF EXECUTIVE 
 
 English system, then, confides a practical monopoly of 
 legislation to a small group of men who are at the same 
 time executive and legislative officers. But along with 
 this power it imposes on them a complete responsibil- 
 ity. And the measure and mark of their responsibil- 
 ity is their prompt retirement from office if they fail 
 correctly to interpret the will of the people as repre- 
 sented by a majority in the House of Commons. Can 
 a similar control of legislation be prudently or even 
 workably intrusted to any similar group without an 
 equal responsibility? In other words, would this sys- 
 tem be fruitful of good works, supposing the group of 
 officers placed in control of the making of the laws to 
 hold office for a fixed term of years, irrespective of 
 hostile majorities, and to be irremovable save by the 
 almost impossible process of impeachment? 
 
 Similar questions might be asked concerning the 
 adaptability to American institutions of the parliamen- 
 tary system of France. The flexibility exhibited in 
 the making and unmaking of ministries in that coun- 
 try, as contrasted with the fixed tenure of American 
 executives, is a point sometimes overlooked by those 
 who desire to invest our President and our governors 
 with the framing and guidance of legislation. Thus, 
 it has been said : 
 
 "So far as concerns the division of power between the 
 legislature and the co-ordinate departments, the best or- 
 ganized government in the world today is that of the 
 French Republic. It is the European government which 
 has best withstood the shock of warr It successfully 
 performs that most difficult task of legislation, the tech- 
 nical task of so framing the law that it shall be enforce- 
 able, that it shall actually give effect to the purpose of the 
 
POWER TO LEGISLATION 4? 
 
 law-maker. It is a significant fact that the legislation of 
 a country where there are few specific constitutional 
 limitations upon legislative power, where there is little 
 reliance upon popular voting and judicial decision to 
 check the flow of undesirable laws, compares in this re- 
 spect so favorably with that of the American states. The 
 explanation is not far to seek. It lies in the practical 
 monopoly of the initiative in legislation which has been 
 acquired by the executive branch of the government. In . 
 France, all important measures are first determined upon 
 fcijtKe ^xecutive. ~ They are ffien drafted and the grounds 
 for tfreir 'adoption elaborated by administrative officials. 
 They are finally introduced into the legislature on be- 
 half of the executive, and their further progress super- 
 vised by its agents/' 4 
 
 When the executive of France is spoken of, in con- 
 nection with legislation, it is not the President who is 
 intended, but the ministers. In fact, his position with 
 reference to the ministers of state is exactly opposite 
 to that of an American president in relation to the 
 members of his cabinet. The present President of the 
 French Republic, in an interesting and instructive vol- 
 ume on the government of his country, has said : 
 
 "Following the example of England, in 1875, the Re- 
 public decided that its President should be responsible 
 only in the event of high treason, and that, on the other 
 hand, the ministers, appointed by him to direct the great 
 public services, should be responsible to the Chambers as 
 a solidarity in matters of general policy and individually 
 for their personal actions. This division of responsibil- 
 ities is the great characteristic of the constitutional sys- 
 tem which is today that of France, and which is known 
 as the parliamentary system. . . . The ministers, in fact, 
 being alone responsible, are those who actually exercise 
 authority; the President presides, but does not govern; 
 he can form no decision save in agreement with his min- 
 
 4 Professor Arthur N. Holcombe, in The New Republic, July 
 7, 1917, p. 270. 
 
48 RELATION OF EXECUTIVE 
 
 isters, and the responsibility is theirs. . . . The Presi- 
 dent therefore exercises no power alone. Each of his 
 proclamations must be countersigned by a minister." 5 
 
 The third article of the Constitution of 1875 de- 
 clares that "the President of the Republic shall have 
 the initiative of laws concurrently with the members 
 of the two chambers. " But in practice this has come 
 to mean not a direct and personal initiative on the part 
 of the President, but an initiative exercised by him in 
 conjunction with one or more of the ministers, or per- 
 haps, rather, nothing more than his formal assent to 
 an initiative exercised by a minister. For any pro- 
 jected law put forward in the name of the President 
 must be countersigned by a minister, and this minister 
 must thereafter appear in person before the Chambers 
 to explain and defend the measure. The President has 
 no personal access to Parliament and cannot take part 
 in the debates. It might easily result that the Presi- 
 dent of the French Republic should be only a figure- 
 head, a mere puppet in the hands of his ministers. 
 Historically it is the fact that this does result when 
 he is a man of mediocre gifts. It was Casimir-Perier 
 retiring from office who said that he had been "nothing 
 but a master of ceremonies," and Grevy who described 
 the presidency as merely "an honorable retreat for an 
 old servant of the country." But it is far otherwise 
 with M. Raymond Poincare, who, bringing to the ser- 
 vice of his country in her hour of greatest need, a 
 burning patriotism, ripe wisdom, and brilliant powers 
 of mind, has not failed to impress the stamp of his 
 strong personality upon her contemporary government. 
 
 5 Raymond Poincare, "How France is Governed" (1914), p. 172. 
 
POWER TO LEGISLATION 49 
 
 As in England, there is nothing in the French con- 
 stitution to deprive senators and deputies who are not 
 members of the ministry of the right to introduce 
 bills; indeed, it is explicitly provided that they shall 
 have the initiative. But, as remarked above, the gov- 
 ernment has acquired a practical monopoly. A dif- 
 ferent parliamentary course is followed with a bill 
 presented by a minister from that which prevails in 
 the case of a private member's bill. An administra- 
 tion bill, countersigned by one or more ministers, is 
 at once referred to a commission, composed of a vari- 
 able number of members, who are instructed to ex- 
 amine it. But a private member's bill is, in the first 
 instance, simply intrusted by him to the "bureau" of 
 the assembly, and is then submitted to a commission 
 known as the Commission of Initiative, which decides 
 whether or not it shall be considered. If it is to be 
 considered, it is referred to a second commission, 
 which thoroughly examines it. The commissions may 
 amend either a bill presented by a minister or one of- 
 fered by a senator or deputy. In either case they state 
 the result of their labors in a report, and the texts 
 thus prepared are then debated by the Assembly. 6 
 
 By the constitution of the Swiss Confederation the 
 legislative power is vested in the Federal Assembly, 
 which is composed of the National Council and the 
 Council of States. It is provided that "measures may 
 originate in either council and may be introduced by 
 any of their members." "The supreme directive and 
 executive authority of the Confederation shall be exer- 
 cised by a Federal Council, composed of seven mem- 
 6 Raymond Poincare, "How France is Governed" (1914), p. 218. 
 
50 RELATION OF EXECUTIVE 
 
 bers," and which is presided over by the President of 
 the Confederation. Also it is declared that the Fed- 
 eral Council "shall introduce bills or resolutions into 
 the Federal Assembly, and shall give its opinion upon 
 the proposals submitted to it by the councils or by the 
 cantons/' 7 It will be seen, therefore, that the xecu- 
 tive branch of the government is possessed of some- 
 thing more than a mere advisory authority, having a 
 direct right of initiative; and it is customary practice 
 for the legislature to invite the executive to prepare 
 and submit drafts of bills upon important subjects of 
 legislation. 
 
 In those countries of Europe whose form of gov- 
 ernment is that of a constitutional monarchy, the parli- 
 amentary system prevails, with occasional variations 
 from its English prototype. Indeed there is ground 
 for arguing that England's greatest gift to the na- 
 tions of the Continent has been this very system, since 
 it has enabled free peoples to achieve the highest meas- 
 ure of self-government without revolution and without 
 discarding the forms of hereditary monarchy. In the 
 constitutions of those countries, therefore, when we 
 find the right of initiative in legislation accorded to the 
 King, it is to be understood that no personal and voli- 
 tional initiative of the sovereign is intended, but an 
 initiative exercised by responsible ministers in the 
 name of the titular ruler, just as, in England, the laws 
 are still supposed to be made by the King with the 
 advice and consent of the Lords and Commons. 
 
 In the Netherlands, it is constitutionally provided 
 that "the King shall recommend projects of law to the 
 7 Swiss Constitution of 1874, arts. 93, 95, 102. 
 
POWER TO LEGISLATION 51 
 
 States-General, and make such other recommendations 
 to them as he considers proper. He shall have the 
 right to approve or to reject the laws adopted by the 
 States-General/' and "the States-General shall have 
 the power to present projects of law to the King. But 
 the initiative in this regard shall belong exclusively to 
 the lower house." 8 In Belgium, "the legislative power 
 shall be exercised collectively by the King, the House 
 of Representatives, and the Senate. Each of the three 
 branches of the legislative power shall have the right 
 of initiative. Nevertheless all laws relating to the 
 revenues or expenditures of the state or to the army 
 contingent must be voted first by the House of Repre- 
 sentatives." 9 In Denmark, "the King may submit to 
 the Rigsdag projects of laws and of other measures." 10 
 In Sweden, "if the King wishes to propose a bill to 
 the Riksdag, he shall obtain the opinion of the Council 
 of State and of the Supreme Court regarding the mat- 
 ter, and shall present his proposal, together with such 
 opinions, to the Riksdag." 11 In Norway, "every bill 
 shall be first presented in the Odelsthing [lower house] 
 either by one of its members or by the government 
 through a councillor of state." 12 By the constitution 
 of Italy, "the initiative in legislation shall belong both 
 to the King and the two houses. But all bills imposing 
 taxes or relating to the budget shall first be presented 
 to the House of Deputies." 13 In Spain, "the King 
 
 8 Netherlands, Constitution of 1887, arts. 71, 116, 117. 
 
 9 Belgium, Constitution of 1831, arts. 26, 27. 
 
 10 Denmark, Constitution of 1866, art. 23. 
 
 11 Sweden, Constitution of 1809, art. 87. 
 
 12 Norway, Constitution of 1814, art. 76. 
 
 13 Italy, Constitution of 1848, art. 10. 
 
52 RELATION OF EXECUTIVE 
 
 and each of the legislative bodies shall have the right 
 to initiate laws. Laws relating to taxation and to the 
 public credit shall be presented in the first instance in 
 the Congress of Deputies/' 14 And the constitution of 
 Japan contains a provision that "both houses shall 
 vote upon projects of law submitted to them by the 
 government, and may respectively initiate projects of 
 law." 15 
 
 The countries of Latin America offer a most inter- 
 esting field for the study in which we are engaged, be- 
 cause they have generally tried, in their constitutions, 
 to combine the essential features of the North Ameri- 
 can or "presidential system" of government with some 
 important details of the European or "parliamentary" 
 system. That is, while they have set up a chief ex- 
 ecutive vested with powers and duties corresponding 
 with those of the President of the United States, and 
 holding office for a fixed term and practically irremov- 
 able, they have also bestowed upon him (acting either 
 personally or through his ministers) a direct access to 
 the legislative bodies and the right of initiative therein, 
 with the necessary result that his control over legisla- 
 tion is always a factor of serious importance, and may 
 at any time become formidable. Both South Ameri- 
 can and European writers have seen in this attempt 
 to blend two incompatible systems the chief cause of 
 the conspiracies and revolutions which have too often 
 disgraced the history of those countries. For, in their 
 view, it leads to such a hypertrophy of the executive 
 power especially when the prestige of the president 
 
 14 Spain, Constitution of 1876, art. 41. 
 
 15 Japan, Constitution of 1889, art. 38. 
 
POWER TO LEGISLATION 53 
 
 and his most powerful ministers is based upon military 
 exploits or maintained by the army as cannot fail to 
 be a constant menace to the state. That it may make 
 possible a self -perpetuating and absolutistic dictator- 
 ship (benevolent or otherwise) is abundantly shown 
 by the history of Porfirio Diaz in Mexico. 
 
 The following may suffice as a brief summary of the 
 constitutional provisions on this point to be found in 
 Central and South America : In the Argentine, Haiti, 
 and Paraguay, the right of initiative is given to the 
 members of the two houses of the legislature and also 
 to "the executive" or "the executive power." In 
 Chile, "laws may be initiated in the Senate or in the 
 House of Deputies upon the motion of any member or 
 by message of the President of the Republic," and the 
 same provision is found in Bolivia, with the additional 
 requirement that a bill submitted by the President 
 "shall be supported in the debates by at least one of 
 the cabinet ministers, but he shall have no vote." In 
 Costa Rica and Uruguay, in addition to the initiative 
 of the members of the legislature, laws may originate 
 "on the proposal of the executive power through the 
 medium of the secretaries of state." In Colombia and 
 Panama, the initiative is not given directly to the 
 President, but it is given to the cabinet ministers or 
 secretaries of state. In Ecuador, "the laws, decrees, 
 and resolutions of Congress may originate in either of 
 the chambers on the proposal of any of its members, 
 or of the executive power, or of the Supreme Court in 
 so far as concerns the administration of justice," and 
 substantially the same provision is found in the con- 
 stitutions of Guatemala, Peru, the Dominican Repub- 
 
54 RELATION OF EXECUTIVE 
 
 lie, Salvador, Nicaragua, and Honduras, except that in 
 the three last-named countries a bill may be introduced 
 not directly by the President but through a minister or 
 secretary of state. In Mexico, "the right to originate 
 legislation pertains to the President of the Republic, 
 to the representatives and senators of the Congress, 
 and to the state legislatures. Bills submitted by the 
 President of the Republic, by state legislatures, or by 
 delegations of the states, shall be at once referred to 
 committees. Those introduced by representatives or 
 senators shall be subject to the rules of procedure." 
 Brazil and Cuba have more directly followed the ex- 
 ample of the United States, and do not permit the 
 direct initiation of legislation by the executive or the 
 ministers. 
 
EXECUTIVE INITIATIVE IN LEGISLATION; 
 IN THE UNITED STATES 
 
 Should the Americanjeople now cast overboard the 
 political principle so jealously insisted on by their an- 
 jestOTS, that it inessential tQ the preservation nf rivil 
 liberty thatJh^fiyp^iiHvp. and Ipgrisl^fiy^ .pj(\wgrsjr>fjhhg 
 
 state shouldM^e Jcej^t^^paiate--and, distinct ? Should 
 
 we now attempt the experiment of superimposing upon 
 the present structure of our government the chief fea- 
 tures of the parliamentary or cabinet system as prac- 
 ticed in England and France, as least to the extent of 
 formally giving to the executivn nffirorr, nfHic nation 
 and the states direct access to the legislatjve^bodies^the 
 right to frame and introduce their own hills, to clajpi 
 precedence for administration measures^ Jr> 
 
 them in debate, and tn pvppHifp anH wnrp their pas- 
 
 sage with the weight and power of the executive arm ? 
 It is very seriously proposed, and by persons whose 
 opinions are entitled to the highest respect, that just 
 this should be done. Even so wise and conservative a 
 statesman as ex-Governor McCall of Massachusetts, if 
 correctly quoted in an interview published not long 
 since, 1 thinks that 
 
 "we cannot amble along in this country on the very 
 pleasant pathway of the old theory of division of powers, 
 
 1 The New York Times, Magazine Section, July 22, 1917. 
 
56 RELATION OF EXECUTIVE 
 
 so that one organ of government vetoes another and we 
 have difficulty in getting anywhere. In a crisis like the 
 present, when the safety of the country depends on the 
 promptest possible action in preparation for war, a min- 
 istry responsible to an elected assembly would bring for- 
 ward the measures that in its judgment are required; 
 and while these measures would be open to debate and 
 amendment, they would be pressed to a speedy conclusion 
 and there would not be the dawdling that has been wit- 
 nessed at Washington. Debate is a good thing, and 
 ample opportunity should be given for it; but the ex- 
 pansion and dilution of individual views do not inevit- 
 ably throw light on questions. The administration meas- 
 ures in times like these should not only have a right of 
 way, but a really efficient system of government would 
 provide that a decision might be obtained in something 
 like a reasonable time." 
 
 Disclaiming any intention to advocate the substitu- 
 tion of the British cabinet system of government for 
 our present form, Mr. McCall added : 
 
 ^"1 think we should have something in the development 
 of our system that would give to an administration the 
 right to present its policies in an authoritative manner, 
 so far as the administration is concerned, anefthe inter- 
 ests of the people would require. that these policies should 
 n ^ be either approved or disapproved by Congress season- 
 ably, so that they^vould not become obsolete or of very 
 much less importance on fl,cc,pnfit ^>f th^ long- de!a^7~~ I 
 limik there has been too much individualism at Wash- 
 ington. The right of individual members of a legislative 
 body should, of course, yield to the general right and 
 needs." 
 
 The questions propounded above, as to changes in 
 our legislative methods, are not merely of academic in- 
 terest; they are of immediate practical importance. 
 And as a matter of fact, in the national government, a 
 disposition which grew into a tendency, and a tendency 
 4y which grew into a habit, have already brought about 
 
POWER TO LEGISLATION 57 
 
 the establishment of something very like_ the^parH- 
 amentary system of executive initiative and control of 
 bills, not so much in substitution for the methods con- 
 H[FmpIated bythe Constitution as"m~addition to them. 
 Today it is not at all an uncommon practice for a legis- 
 fpttive measure, complete in all its jtetails, to be draTted 
 by the head of an executive department, or even by 
 tEe'Ffesident or under his personal direction, and su5- ; 
 mitted to Congressthrough the chairman of the ap- 
 propriate committee or some other member known to '' 
 be 'ia'Tupp'orfer^of theT(lmintgtratrDT^-"and to-be-fob' 
 lowecTup b/^ucE^3cecufive" pressure as will secure its 
 
 proper referencgaji^^ 
 If has been said: 
 
 "In the United States the failure openly to give to the 
 President constitutional powers by the exercise of which 
 he can influence the passage of legislation and the adop- 
 tion of policies, has naturally led to the development of 
 somewhat secret and indirect, if not underhand, methods. 
 The President cannot introduce a bill into Congress. But 
 there is nothing to prevent him from having a bill drawn 
 and inducing one of his supporters in Congress to in- 
 troduce it. The President has no power to send a rep- 
 resentative of the administration to participate in the de- 
 bates of Congress. But members of the administration 
 are often heard by the committees of Congress to which 
 bills are referred, and the President may easily persuade 
 some member of the legislature to be his spokesman on 
 the floor of either of the houses." 2 
 
 These facts are familiar to everyone who reads the 
 newspapers, though it may be doubted whether many 
 of us realize the extent to which the habit has grown. 
 That it may be seen in practice, though not in its full 
 
 2 Frank J. Goodnow, "Principles of Constitutional Govern- 
 ment," p. 121. 
 
58 RELATION OF EXECUTIVE 
 
 extent, attention is invited to the following extracts 
 from the daily press, which, however, do not pretend 
 to be a list or catalogue, but only a few illustrations 
 culled out of many : 
 
 "At the request of the War Department today Chair- 
 man Chamberlain of the Senate military committee intro- 
 duced a bill for the registration for military duty of all 
 ment who have become twenty-one years old since the 
 draft law went into effect. Another bill which Senator 
 Chamberlain introduced at the request of the adminis- 
 tration would provide for furloughing National Army 
 men for harvesting crops and other agricultural duty." 
 
 Again : "An administration bill authorizing the Presi- 
 dent to suspend, modify, or annul sentences and orders 
 of military courts-martial was submitted yesterday by 
 Secretary Baker to Chairman Chamberlain of the Senate 
 military committee." On another occasion, "Representa- 
 tive Adamson introduced with amendments the Presi- 
 dent's bill to authorize preferential food shipments by 
 rail and water." So again: "The Overman bill, pre- 
 pared by the President or at his direction, and sent from 
 the White House to the Capitol, is a proposal to Congress 
 to abdicate during the period of the war and for one year 
 after the war." And again : "Personal interest of Presi- 
 dent Wilson in the clause in the espionage bill authoriz- 
 ing him to embargo exports was disclosed today during 
 debate on the bill in the Senate. A letter from the Presi- 
 dent to Chairman Culberson of the Senate judiciary com- 
 mittee, submitting a draft of the bill and urging its con- 
 sideration, was produced and read." 
 
 And a prominent member of the House of Repre- 
 sentatives is reported to have said in debate recently : 
 
 / "The fashion has been growing of late, particularly 
 when bills of major importance are being considered in 
 /this House, that their sponsors rest their main ground 
 "i of defense ofTRe Uiovisluns of these Dills upon the propo-^ 
 / sition that they were drafted in some executive deparp 
 ment. 'ihings have come to a' preliyi>'^5^in"-thircotintry 
 
 / 
 
POWER TO LEGISLATION 59 
 
 if legislation is to be simply a matter of executive order, 
 if committees of this House are to be a mere registering 
 machine for the will of the executive. For one, I believe 
 that the time has come to definitely impress upon the 
 executive and upon the tfD'Ulltry that we propose to do"" 
 some thinking for ourselv&j, thai we piupose lu scrutinize 
 
 rii^iQiy nit ic^isiciLivc JJJL vjjjOodlo sent to US num LUC ULUCI 
 
 fegTotJhe Ayenue,~and to^enacl LhenrwMi such addi- 
 'tions, subtractions" or altefatiMs"as"7eem best to us. acf- 
 jng in the capacity imposed upoifus by the Constitution^ 
 "in short, that we propose to conduct ^purs-elves asjthe 
 legislative representatives of the American people, and 
 not simply as the amanuenses ol those holding executive 
 office." 
 
 So much for the initiation of administration bills. 
 But the executive does not abandon a favorite project 
 at the threshold of the legislative chamber. On the 
 contrary, Jhg is quite actively interested in its further 
 fortunes and brings to bear many processes^ influ- 
 ence and persuasion to insure its Apartment.. In the 
 irst place, the administration's proposal that a par- 
 ticular law should be passed jmay and 
 
 a much stronger form than, the mp.re.. "rprnminenHa.-_ 
 tion intended by the Constitution. The members of 
 Congress may be assured, by message or letter, as 
 sometimes they have been, that the measure in question 
 is "absolutely necessary" To the accomplishment of 
 some purpose as tp whosellesirability there can be no 
 possible dispute. " /Or, in the converse case, private ini- 
 tiative may b<? rrferlfprl hy a frank expression of stern 
 disapproval from the presidential mansion. Again, 
 whatever may have been the antique practice of a mu- 
 tual and dignified aloofness, the modern American^ 
 President is in constant and **** rnmtrmnication with 
 the chairmen ofimportant committees in both houses, 
 
60 RELATION OF EXECUTIVE 
 
 with the parliamentary leaders of the party, with his 
 
 - individual friends a!1(1 fiiippnrt-prSj and PvprrwTfVTflirv^ 
 
 who_are_most jaanspiaions in t^^irnppaiitiQn to his 
 
 __ 
 
 olicies! It has become a common practice, no longer 
 exciting surprise or even comment, for the President 
 to summon influential members of either Jiouse__to^a 
 conference at the White House, nor_i_s it a secret that 
 tHe purpose is to settlejthe__details of an administra- 
 tion bill or to concert ways and means for securing its 
 passage, or perhaps to block the pathway of independ- 
 ent insurgents. NoFTiave the occasions been infre- 
 quent in which the President has himself gone to the 
 room set apart for him at the Capitol and there sum- 
 moned to his presence Senators or Representatives 
 whose strong opposition threatened disaster to some 
 favored measure. The object of_such interviews is 
 of course the taking of common counsel for the wef- 
 2^ Tare ofTEe~country. But is it not the case that when 
 the legislators return to their seats, their votes reflect 
 the wishes of the executive? 
 
 Ttgain, always supposing that presidential insistence 
 upon the enactment of particular bills or provisions is 
 recognized as constitutionally within the functions of 
 the executive, what could be more natural than that he 
 should employ his most trusted friends and advisers, 
 the members of the cabinet, as his advocates before 
 Congress? As a matter of fact, recent Presidents 
 have not hesitated to do so. It may be appropriate to 
 quote one or two events of late occurrence, not at all 
 in the way of hostile criticism, but simply as illustra- 
 tions of this system in its actual operation. In the 
 news columns of a leading newspaper we read the fol- 
 lowing : 
 
POWER TO LEGISLATION 61 
 
 "The influence of President Wilson's approval of the 
 newspaper censorship section of the espionage bill failed 
 to save it in the House today, and it was stricken from 
 the bill by a vote of 220 to 167. The vote came after ad- 
 ministration leaders had fought for the section under a 
 hot fire of attack, and Chairman Webb of the judiciary 
 committee had told the House he had just heard from 
 President Wilson that the section was necessary to the 
 defense and safety of the country .y Postmaster General 
 Burleson, who often visits the Capitol to round up sup- 
 port for administration measures, made a futile attempt 
 to get enough support for the censorship section. . . . 
 Representative Webb did everything in his power to 
 rally to his support enough votes to give the administra- 
 tion almost unheard-of power in proclaiming what may 
 or may not be published. Postmaster General Burleson 
 was in the corridors and lobbies of the House for several 
 hours today in a vain attempt to preserve the censorship 
 section by telling members on both sides of the House 
 that the administration absolutely demanded it." 3 
 
 In a parallel case of somewhat later date, an Asso- 
 ciated Press despatch carried the following account of 
 certain proceedings in the Senate : 
 
 ''Opponents of the Overman bill, to authorize the 
 President to reorganize government departments and 
 agencies for the war period, opened their attack today in 
 the Senate. . . . While Senator Reed was speaking, 
 Postmaster General Burleson, who took the Overman 
 bill to the Capitol the day it was introduced, appeared in 
 the President's room just outside the Senate chamber, 
 and conferred with a number of supporters of the meas- 
 ure. Referring to Mr. Burleson's visit, the Missouri 
 Senator declared he would not object to replying to 
 cabinet members' arguments if they were made on the 
 floor of the Senate rather than in whispered conversa- 
 tions in the cloak rooms." 
 
 Finally, anyone who seeks the causes of the Presi- 
 8 The Washington Evening Star, May 4, 1917. 
 
62 RELATION OF EXECUTIVE 
 
 dent's ascendancy over Congress should not overlook 
 his negative upon laws which he disapproves. 
 
 "The veto power," it has been well said, "taken in con- 
 nection with the message and the appointing power, is an 
 effective political instrument in the hands of the Presi- 
 dent. By using a threat^of the veto he may secure the 
 passage of b}lls_jKhi^ ' - 
 
 times, in consideringjmpgrtant mgasuTes7~Congress must 
 jceep in view the possible action of the~Tresident,~*gspe- 
 nally where it .j.a n party question ~an0. tUlft . cnrjrerir arri- 
 tucTe before the country is indispensable. Mr. Roosevelt 
 even went so far as to warn Congress publicly that he 
 would not sign certain measures then before that body, 
 and raised a storm of protest from those who said that 
 he should not veto a bill until it was laid before him/' 4 
 
 In fine, the recital of the foregoing considerations 
 will have been futile indeed if the reader is not now 
 prepared to agree with the statement that a legalized 
 practice of admitting executive officers directly to the 
 legislative body would "make unnecessary those sub- 
 terranean relations between the two branches which 
 inevitably spring up when official lines of communica- 
 tion are forbidden." 5 
 
 For the real and ultimate question is, shall these sub- 
 :erranean, underhanj, anH extra-constitutional meth- 
 ods be legalized or shall they Jbejibandoned ? 
 
 It is difficult to reverse an evolutionary process, and 
 
 what we have been describing appears _to be a true 
 
 political evolution. If so, eyen the incumbency of a 
 
 , President who shouldjkgggjbimself ^trictly^yithin the 
 
 > v b2un<^LJ^ O n its spirit and meaning 
 
 no less than its letter) would be no more than an inter- 
 
 4 Charles A. Beard, "American Government and Politics," p. 
 204. 
 
 5 "Municipal Research," May, 1915, p. 75. 
 
POWER TO LEGISLATION 63 
 
 ruption of a practice which his successor would very 
 TIfceljMresume and carry to even greater lengths. For 
 there is~nothing in the text of the Constitution which 
 Torbids the President to dominate Congress. There is 
 nothing to forbid him to write out with his own hand 
 the complete draft of a bill and send it to a friend to 
 be introduced in the Senate or the House. There is 
 nothing to prevent him from exerting every penny- 
 weight of his prestige, his personal influence, and his 
 political power in favor of its enactment. There is 
 nothing unlawful in his sending his ministers to the 
 field of legislative battle. There is nothing to prevent 
 him from laying out a program for the legislature to 
 follow. There is nothing to restrain him from bend- 
 ing the frown of his disapproval upon individual ini- 
 tiative. In short (be it said without disrespect) there 
 is nothing to withhold him from being the most august * 
 and powerful ot all lobbyists, and the most successful. 
 Even if couSLiLuliuiial warrant againal suiiic tnTafijTof 
 these practices could be found, one can hardly see how 
 the matter could be brought to the arbitrament of the 
 courts. 
 
 To these tendencies and practices there is nothing 
 to oppose but the remonstrances of individual members 
 of Congress which are sonorous but ineffectual -or 
 the general disapproval of the people of the country. 
 If such a sentiment were ever to be aroused, it would 
 require suchji change of heart in the American jgublic 3 // 
 that they would cease to magnify the presidential office, 
 and no longer exalt the President as the nation's 
 jeader, but restore the guardiaj^ip_of^ 
 fare to its original custodians, the members of the 
 
64 RELATION OF EXECUTIVE 
 
 Congress, taking care to select such representatives as 
 ""would ablyUnd conscientiously fuHfiHheir^fcfttst. But 
 the American people, with the watchword "efficiency" 
 forever ringing in the air, demand only results J^oni 
 their government. To methods and piw^sfrs tVy ar** 
 suElimely indifferent. 
 
 It may be thought that this view is unduly pessi- 
 mistic. It is not meant to be denied that there are alert 
 sentinels, here and there, to cry the alarm. ^ And some 
 of them believe that, not their voices alone, ^but the 
 
 daily spectacle of executive power in action, _Jhas_ j>o 
 far impinged upon the consciousness of their fellow 
 citizens as to awaken at least a feeling of deep con- 
 cern! Thus, Protessor Henry Jones Ford writes : 
 
 "The most dangerous feature of the situation is the 
 present attitude of public opinion. The behavior of Con- 
 gress is a chronic grievance, but it does not produce ac- 
 tion at all commensurate with the feeling that exists about 
 the matter. This singular lethargy is due to the fact that 
 resentment of congressional behavior is overshadowed by 
 uneasiness over the portentous growth of presidential 
 authority. People view with dismay the possibilities of 
 abuse of such vast powers as are accumulating in the 
 hands of the President. They feel disposed to endure 
 much from Congress in consideration of the fact that it 
 appears to be a rival power, and in the belief that, badly 
 as it behaves in particulars, it serves as a counterpoise to 
 the aggrandizement of the presidential office. The same 
 view is held in Congress, and members who acknowledge 
 that its powers are scandalously abused are yet disposed 
 to put up with anything rather than do anything that 
 might weaken those powers. This view of the case is 
 plausible, but it is quite mistaken. It is true that the 
 power of the President has increased and is increasing 
 at a tremendous rate; but the constitutional aspect of 
 the case is quite different from what is commonly sup- 
 posed. The great expansion of the presidential function 
 
POWER TO LEGISLATION 65 
 
 js_ going on outside of the formal Constitution, by 
 
 *Q! his entorced activity as lobbyist and promoter. Jiis 
 
 at^honty within the bounds of the Constitution has not 
 jncreaseoat alT, but has in facT^BeefTTdiminisHed by con- 
 "p^ssToHaTencroachment, and that is the true source of 
 
 actual peril to constitutional government." 8 
 
 Precisely because all this is going on outside the for- 
 mal Constitution, it would require no change in the 
 fundamentaHaw either to abandon it or to legalize it. ^ H 
 No constitutional amendment would be necessary to 
 render legal and formally regular an even greater presi- 
 dential control over legislation than is now practised in 
 a somewhat furtive and unacknowledged manner. It is 
 correctly said by Professor Ford, at the conclusion of 
 the article from which the foregoing quotation is 
 taken : 
 
 S "This is a matter which rests with Congress, and it js_ 
 upon Congress that the pressure of public opinion stipulcf ' 
 tg exerted to compel sucn changes in theTujes as will in- 3 +j 
 produce constitutional government. In practice thia would 
 Tnean that the President's recommendations would be pre- 
 sente^To" Congress in the form ot bills drafted by ex-' 
 pefis7~Tntorniecl by administrative Oxpei ienu; and acting ' 
 responsibility. The present liielhud al- 
 " 
 
 be dratted according to the views of 
 irresponsible committees acting under the guidance of 
 particular interests and upon calculations of factional ad- 
 vantage. The sinister results of which this process is 
 capable are displayed by the legislative record of every 
 session. The situation has become so intolerable that 
 some decisive treatment of it is inevitable." 
 
 In another paper, the same author has expressed 
 himself still more explicitly, as follows : 
 
 "The fact is well known that the policy of the admin- 
 i.stration is the master force that advances measures and 
 
 6 "The Growth of Dictatorship," in The Atldtltiu Monthly, 
 May, 1918. 
 
66 RELATION OF EXECUTIVE 
 
 brings them to determination^ Well, then, let it be so; 
 ""but is there not fOOiii f oF improvement ? At present the 
 process goes on in the dark. Conflicting 'and vague ac- 
 counts reach the public of conferences with party leaders, 
 of negotiations with committees, of caucus action, of con- 
 cessions and adjustments to placate dissident factions, of 
 delays, obstructions, exactions and demands which must 
 be dealt with to obtain action. It is a dark, confused 
 hubbub -of activity, the particular elements of which can 
 never be clearly discerned by the public, nor can the ex- 
 tent of their respective participation in what is done be 
 computed. Moreover it appears that Congress itself is 
 not much better situated for knowing just what is taking 
 place. Enactments may contain features of which Con- 
 gress was not aware in passing them, their presence be- 
 ing due to private opportunity supplied by the darkness in 
 which bills take their final shape. ' Notorious instances 
 'of this occurred during the last session of Congress. Is 
 not this darkness a genuine grievance that calls for re- 
 dress? What improvement could be more natural and 
 desirable than to bring the process out of darkness into 
 light? The specific demand for improvement in legis- 
 lative procedure need therefore go no further than this : 
 that the administration shall propose and explain all its 
 measures the bills and the budget openly in Congress 
 and fix the time when they shall be considered and put 
 to vote. That is all, no more and no less. Aside from 
 those particulars, the existing deposit of authority, both 
 with the President and with Congress, will remain unim- 
 paired. There will be no change whatever except this 
 one change caused by making the administration do open- 
 Iy and publicly what it now does hiddenly and privately. 
 Undoubtedly this one change will breed more change, but 
 that will come spontaneously under the prompting of 
 party convenience. Just what form the adjustments 
 will eventually assume cannot be anticipated, an.d specu- 
 on on this point is sheer futility. All that jt is safe to 
 say r is that it will not be the parliamentary tygeof gov- 
 ernment as in England! The definite term a^Tlhe in- 
 dependent authority of the presidential office is a solid 
 circumstance that will condition all our constitutional de- 
 
 r 
 
POWER TO LEGISLATION 67 
 
 velopment. The eventual type will probably differ from 
 any existing type of government. It will be a distinctly 
 American type, the product of our own needs and ex- 
 periences/' 7 
 
 A similar opinion has recently been expressed by 
 Professor Freund. 
 
 "It is not uncommonly urged at the present time that 
 executive officers be given a right to appear on the floor 
 of the houses of the legislature and to participate in de- 
 bate. It would not be a much more radical step to give 
 the chief executive a right to introduce bills. He has 
 now by all constitutions the right to recommend legisla- 
 tion, and as a matter of power there is no reason why he 
 should not present his recommendations in the form of 
 bills. This would not give the measure recommended 
 the parliamentary status of a bill, and as a matter of 
 politics, might prejudice it; but to give it such a status 
 would not even require a constitutional amendment; a 
 house rule would be sufficient. As a matter of fact, the 
 chief executive can readily find members to bring in bills 
 known to have come from him and spoken of as admin- 
 istration bills, and they have been officially recognized as 
 such by house rules, but their status would gain if the 
 executive would formally appear as their sponsor." 8 
 
 President Wilson, also, some ten years ago, observed 
 that ,there_js no reason to beJiV vp ^ar ^ p fr^mprs nf . 
 
 "meant actuallvto exclude the President Jrom all jnti- 
 pCTSffn^^ with the houses in session. 
 
 doubt the President Md the members of his cabinet 
 could with perfect legal propriety, and without any 
 breach of the spirit of the Constitution, attend the ses- 
 sions of either the House or the Senate and take part in 
 their discussions, at any rate to the extent of answering 
 questions and explaining any measures which the Presi- 
 
 7 Henry Jones Ford, "A Program of Responsible Democracy," 
 in American Political Science Review, August, 1918, p. 494. 
 
 8 "Standards of American Legislation," p. 291. 
 
68 RELATION OF EXECUTIVE 
 
 dent might see fit to urge in the message which the Con- 
 stitution explicitly authorizes him to send to Congress." 9 
 
 And another student of American government, in 
 discussing the subject has said: 
 
 "Instances are not wanting of the transmission to 
 Congress, by the executive, of drafts of bills, with a 
 recommendation for their enactment. As Professor 
 Burgess states, there is full constitutionafwarrant for 
 "the construction and presentation of regular bills and 
 projects of laws to Congress by the President] ThaOns 
 recommendations are not so presented has explanation in 
 the fact that there exist no 'executive organs for pre- 
 senting, explaining, defending, and in general managing 
 such government bills in Congress/ JThis custom of ini- 
 tiatinff_ajid jromoting- legislation m^this manner nngtit 
 Have grown up under our Constitution^ Says Professor 
 Woodfiufn T Vlf Hamilton, in ^elen^Eig his financial meas- 
 uresbefore Congress in 1790. hacLappeared in 
 
 report, it is 
 
 tEe precedent might have b^pn ff^flj^j^j^ 
 ministers_might have been allowed the privilege of~3e- 
 
 1 fenHirup- their measures orTthe floor of either house.*"" 10 
 
 " 
 Arguments are not wanting in favor of conceding to 
 
 the executive branch of the government the formal 
 right to initiate and introduce bills, particularly if we 
 take into account the inevitable result of such a con- 
 cession, namely, that the executive will sooner or later 
 come to have a virtual monopoly of the initiative. In 
 the first place, it would render possible the carrying 
 ,-2> >> out of a definite program of legislation _for_ each Con- 
 gress or each session of Congress. Under the present 
 'System, arTenormous number of bills* are annually cast 
 into the hopper, the committees are overburdened, the 
 calendars are crowded, there is jostling and scrambling 
 
 9 "Constitutional Government in the United States," p. 201. 
 
 10 Finley, "The American Executive," p. 201. 
 
POWER TO LEGISLATION 69 
 
 for precedence, unworthy methods of recruiting sup- 
 ""P&rt'for favorite measures are brought into play, and 
 the device ot special rules is resorted to for the puK 
 pose ot cutting down opposition or choking criticism. 
 "Only the great appropriation bills are sure Jo pass,~and 
 fffese are sometimes encumjpen^^ 
 vant "riders." The task of sifting the mass of legis- 
 "lati veTpro j ects and sorting out a limited number, with 
 the determination that they must be enacted before the 
 close of the session, is at present very imperfectly per- 
 formed by "steering committees" in the two houses, 
 and not without a view to the political prosperity of 
 the dominant party. Another advantage could be 
 found in the elimination of a system which permits, 
 and incfeed encourages, the wasteful duplication of 
 "bills on the same subject. When public attention is 
 "focussed upon some state of affairs which seems to 
 require regulation by act of Congress, it is no uncom- 
 mon thing for half a dozen or more bills to be offered 
 in the House and perhaps two or three in the Senate, 
 all differing in details and to a certain extent in their 
 general principles. These are all referred to the ap- 
 propriate committees ; each committee attempts to har- 
 monize or consolidate the measures before it, and, 
 generally failing in this, the committee drafts and pre- 
 sents a new bill; these are passed in the two houses, 
 but are so dissimilar as to require a conference; and 
 not infrequently the conference committee draws up 
 what is substantially a new bill, and this -is finally en- 
 acted. All this could be avoided if an administration 
 bill, exempt from competition with privately initiated 
 measures on the same subject, were introduced, simul- 
 
70 RELATION OF EXECUTIVE 
 
 |aneously and in identical language, injh^wojiouses. 
 Suctt a system would also reduce the number of pro- 
 jects to be placed betore the legislature, increase the 
 relative importance of those scheduled for considera- 
 tion, concentrate and solidify the opposition, and avoid 
 ~the occurrence of those legislative freaks (not un- 
 / known in Congress, though more common in the 
 states) which arouse the disrespectful and injurious 
 derision of the public. 
 
 And there is no doubt whatever that the technique 
 of bill-drafting would be greatly improved. That 
 there is ample room for improvement could be shown 
 with ease from almost any volume of the Statutes at 
 Large. But one or two illustrations will suffice. Let 
 it be remembered, for instance, that the Bankruptcy 
 Act of 1898 contains two clauses relating to the same 
 subject which the courts have pronounced absolutely 
 repugnant and irreconcilable. One clause was con- 
 tained in the bill as originally passed by the House, 
 and the other in the bill as originally passed by the 
 Senate, and both were retained by the conference com- 
 mittee which settled the terms of the statute in its 
 final form, and consequently passed by both houses 
 without adverting to the conflict between them. Again, 
 it will not have been forgotten that the Income Tax 
 Act of 1913 was one of the crudest pieces of legisla- 
 tion known in our history, being singularly infelicitous 
 in its language, confused in its arrangement, and in 
 places entirely unintelligible. 
 
 This subject has been remarkably well elucidated by 
 Professor Freund, in a recent notable volume, from 
 which we quote as follows: 
 
V 
 POWER TO LEGISLATION r 71 
 
 "The striking difference between legislation abroad and 
 in this country is that under every system except the 
 American the executive government has a practical mo- 
 nopoly of the legislative initiative. In consequence, the 
 preparation of bills becomes the busMess ot government ~~ 
 "officials responsible to ministers, these government om- 
 jials being mainly, it not exclusively, employed in cbn- 
 jtructive legislative work. In France and Germany, the 
 government initiative ol -fegislation has been established 
 for a long time, and the right of members to introduce 
 bills is hedged about and practically negligible. There 
 are two main reasons why executive initiative should" 
 leacT to a superior legislative product. The one is thatTT 
 is the' inevitable ettect jpf ^jTroiessiona-lizi^gv a junction 
 *fliat its Standards are jajsed._ The drattsman will taTtelT" 
 "pride in Jus Business aniJTrrcourse of time will become 
 an expert in it. He learns from experience, and tradi- 
 HonswTll be Tormed. ^his. of course, presupposes that 
 he is a permanent official. In addition. t|e~will oe respon 
 Slble to his chief, who naturally resents "drafting HP. forts 
 that expose him to parliamentary non-partisan criticism. 
 In Germany, the best juristic talent that goes into the 
 government service is utilized for the preparation of legis- 
 lative products, and these are regularly accompanied by 
 exhaustive statements of reasons, which enjoy consider- 
 able authority. Drafts of important measures are almost 
 invariably published long before they go to the legisla- 
 ture, in order to receive the widest criticism, and, as the 
 result of criticism, are often revised and sometimes en- 
 tirely withdrawn. The individual author often remains 
 unknown and the credit of the government stands be- 
 hind the work. The second reason is that when the 
 government introduces a bill, the parliamentary debate, is 
 "somewhat in the nature of an adversary procedure, or at 
 Igast there is, as it were, a petitioner and a judge. The 
 minister or his representative (in Germany and France, 
 the experts appear in parliament as commissioners, while 
 in England only parliamentary secretaries may speak 
 much to the disadvantage of the English debate) has to 
 defend the measure against criticism, and legal imperfec- 
 tions or inequities would be legitimate grounds of attack. 
 
72 RELATION OF EXECUTIVE 
 
 \^ q 
 
 The liability to critfci.sm ^SU^R proper rate in adyance. 
 together with the executive initiative gQs_a^ practical 
 limitation of the number of bills introduced, an increased 
 relative importance of each measure and proportionately 
 greater attentiorL_JietQwej[_on it. Where this form of 
 legislative preparation and procedure has been observed, 
 it is not necessary to seek further reasons for a good 
 quality of the product." 11 
 
 To this it may be added that hardly any statute is so 
 completely ray nova that it does not to some extent 
 modify the existing law and therefore require to be 
 carefully co-ordinated with the previous enactments. 
 Almost every new law should be neatly dovetailed into 
 an existing structure of legislation; and many a legis- 
 lative blunder is due to a neglect of this simple fact. 
 
 Of course it may be replied to these arguments and 
 considerations that jt_js__not necessary to give to the 
 pf government a 
 
 lative initiative, or even ja share in it, in order to se- 
 cure scientific precision and clarity^ in the preparation 
 of bills, tor any le^TaHvebody or chamber may, if 
 ^it chooses, establish a bill-drafting bureau and fill it 
 with the most expert talent available. But it is less 
 easy to dispose of the fact pointed out by Mr. Wilson, 
 that if those who frame the laws are then charged with 
 the duty of seeing to their application in actual prac- 
 tice, they will be more careful in the details of what 
 they enact. 
 
 "Under the parliamentary form of government," he 
 says, "the people's recognized leaders for the time being, 
 that is, the leaders of the political party which for the 
 time commands a majority in the popular house of parli- 
 ament, are both heads of the executive and guides of the 
 
 * 1:L Ernst Freund, "Standards of American Legislation/' p. 288. 
 
POWER TO LEGISLATION 73 
 
 legislature. They both conduct government and suggest 
 legislation. All the chief measures of a parliamentary 
 session originate with them, and they are under the 
 sobering necessity of putting into successful execution the 
 laws they propose." 12 
 
 On the other hand, it cannot be gainsaid that the in- 
 evitable tendency of the cabinet or parliamentary sys- 
 tem of government is to vest a monopoly of legislative 
 initiative in the executive. It may not be so intended. 
 It is perhaps never so specified in any constitution or 
 law. On the contrary, wherever_thej>vstem is in force 
 the right of private initlativ^regia^^ thpnrH-irally rm- 
 
 impaired'. But actually it dwindles, while the executive 
 
 A i '""i _ ' 
 
 initiative grows, until the tormer is restricted to local 
 matters, andjfop latter rmri-rnlQ all 
 
 u7ej""oTTeal importance. _ ThusJ^eJegislatiye debates 
 
 'Become mere exhibitions of attack and defense, the 
 
 HFuncHbn of the opposition is limited to criticism, and 
 
 me administration's bills are carried by a^majority 
 
 ^which works automatically. If this system appears to 
 
 work weiTin Great "Britain, and less obviously so in 
 
 France, it is by no means certain that it is at all adapted 
 
 to politicaTl:on<Ii^ 
 
 stitutions, oFlo^Fe^aBT^s^oT^fE6ugrlF and action char- 
 acteristic of our people. It is, as Lord Bryce has said, 
 not a plant of hardy growth nor certain to flourish in 
 an alien ground. 
 
 'This system of so-called cabinet government," he ob- 
 serves, "seems to Europeans now, who observe it at work 
 over a large part of the world, an obvious, and simple 
 system. We are apt to forget that it was never seen any- 
 where till the English developed it by slow degrees, and 
 
 12 Woodrow Wilson, "Constitutional Government in the United 
 States" (1908), p. 40. 
 
74 RELATION OF EXECUTIVE 
 
 that it is a very delicate system, depending on habits, 
 traditions, and understandings which are not easily set 
 forth in words, much less transplanted to a new soil. 
 ... It is a system whose successful working presupposes 
 the existence of two great parties and no more, parties 
 each strong enough to restrain the violence of the other, 
 yet one of them steadily preponderant in any given House 
 of Commons. Where a third, perhaps a fourth, party 
 appears, the conditions are changed. The scales of Parli- 
 ament oscillate as the weight of this detached group is 
 thrown on one side or the other; dissolutions become 
 more frequent, and even dissolutions may fail to restore 
 stability. The recent history of the French Republic 
 shows the difficulties of working a chamber composed of 
 groups, nor is the same source of difficulty unknown in 
 England/' 13 
 
 Other countries than England and France have 
 tried the parliamentary system, apparently with very 
 dubious success. In Spain, for example, the actual 
 operation of the system is thus described by a publicist 
 of that country: 
 
 "The attention of the chambers being demanded for so 
 many affairs foreign to the mission of the legislative 
 power, they have not time to devote themselves to an 
 examination of the laws. The discussion of records, dis- 
 cussion of the message, questions and interpellations every 
 day, all this absorbs a month and a half or two months, 
 which is the average length of time during which the 
 Cortes remain open in each legislature. In the last sit- 
 tings they approve in mass the railroad bills, and like- 
 wise the accounts of the State and the budgets, almost 
 without examining them, and, at best, with only a pre- 
 tense of discussion. When the administration proposes 
 to inaugurate reforms in legislation, civil, penal, admin- 
 istrative, commercial, etc., they ask {he Cortes for an 
 authorization, and with this subterfuge the ministers 
 legislate at their own caprice, just as the absolute kings 
 used to legislate at will. Only laws of a notably politi- 
 
 13 Bryce, "American Commonwealth" (1889), pp. 272, 281. 
 
POWER TO LEGISLATION 75 
 
 cal character have the privilege of occupying the atten- 
 tion of the chambers." 14 
 
 In the next place, we must by no means forget that 
 jhe very essence of the parliamentary system i^thejg- 
 sponsibility of the ministers, who 
 
 "confronted with a hostile majority against an admin- 
 istration measure of first-rate rank. Makel:He~execu- 
 tive irremovable, and this responsibility becomes at- 
 tenuated to the degree where it is no more than an 
 uneasy apprehension as to the state of public opinion, 
 that opinion being diffuse and unorganized and not 
 capable of becoming articulate for perhaps two or 
 three years. We may repeat the jioubts expressed on 
 a previous page, as to whether a control of legislation 
 similar to that held by the ministry in England could 
 be prudently or even practically intrusted to any simi- 
 laFgroup in this country without the same or aiTequal 
 RmdTand measure of responsibility, or whether the 
 cabinet system would result in wise, just, and benefi- 
 cent government, supposing the executive officers 
 jplaced in control of the ouitp 11 * nf legislation t hnTH 
 office for a fixed term of years, irrespective of hostile 
 majorities, andjtojbejpmnvah1f> in no other way tjian 
 by impeachment__ 
 
 The confusion of the executive with the legislative 
 power, or the possession of them both by the same in- 
 dividual or group, always leads, as Montesquieu fore- 
 saw it would, to dictatorship. The rule of the dicta- 
 tor may be wise or unwise, benevolent or tyrannical, 
 
 14 Ojea y Somoza ("El Parlamentarismo") as quoted by Mi- 
 nana, "La Division de los Poderes del Estado" (Madrid, 1917), 
 p. 219. 
 
;6 RELATION OF EXECUTIVE 
 
 promotive of the public welfare or ruinous to his 
 country ; but the event depends upon his character and 
 his will, not upon the constitution of the country. Even 
 in England, 
 
 "one may say that the legislative and executive functions 
 are interwoven as closely under this system as under ab- 
 solute monarchies, such as imperial Rome or modern 
 Russia; and the fact that taxation, while effected by 
 means of legislation, is the indispensable engine of ad- 
 ministration, shows how inseparable are these two ap- 
 parently distinct powers." 15 
 
 In sober truth, as remarked by a Spanish writer, 
 
 "in many countries parliamentarism is a screen behind 
 which lurks the absolutism of royalty-by-the-grace-of- 
 God. Where it is a reality, where the parliament reigns 
 and governs in fact, it signifies nothing else than the dic- 
 tatorship of certain personages, who alternately grasp the 
 reins of power. In effect, these are found to be in the 
 hands of a half dozen party chiefs with their counsellors 
 and acolytes/' 16 Again : "There is a manifest tendency 
 to favor arbitrary power, because what results is the 
 substitution, in place of the ancient absolutism of an in- 
 dividual, of the absolutism of a group, or even of a single 
 individual again, the chief of a party. For if, after cen- 
 tralizing the administration and placing it in the hands of 
 the executive power, the legislature converts itself into 
 a sort of workshop for that power, the ministers are lords 
 and masters of the situation, without other hindrance or 
 inconvenience than that of suffering the pin-pricks of the 
 press, and of defending themselves with a few sophisms 
 against the attacks of the opposition in the chambers." 17 
 
 And further, as specially illustrating the situation in 
 Spain, but not without a general application, we may 
 quote the observation that 
 
 15 Bryce, "American Commonwealth" (1889), p. 272. 
 
 16 Minana, "La Division de los Poderes del Estado," p. 208. 
 
 17 Idem, p. 221. 
 
POWER TO LEGISLATION 77 
 
 "absolutism pure and simple, without a parliament, has 
 after all the one good condition that the sovereign always 
 retains a personal sense of responsibility for his own 
 acts. Much worse is the absolutism which can buttress 
 itself upon a docile parliament, and which needs no other 
 justification than that of appealing to the assent of a ma- 
 jority. Houses constituted under such a system of par- 
 liamentarism would have been the ideal senate for the 
 Emperor Tiberius." 18 
 
 Finally, it cannot be inappropriate to listen to a coun- 
 sel of prudence from one who, having filled the office 
 of President of the United States, has left on record 
 his impressions of its duties and opportunities. 
 
 "It is true that a parliamentary government offers an 
 opportunity for greater effectiveness, in that the same 
 mind or minds control the executive and the legislative ( 
 action, and the one can be closely suited to the other; 
 whereas our President has no initiative in respect to 
 legislation given him by law except that of mere recom- 
 mendation, and no method of entering into the argument 
 and discussion of the proposed legislation while pending 
 in Congress, except that of a formal message or address. 
 To one charged with the responsibilities of the President, 
 especially where he has party pledges to perform, this 
 seems a defect; but whatever I thought while in office* 
 I am inclined now to think that the defect is more theo-j 
 retical than actual." 19 
 
 It is possibly worthy of snffiresrion T however, that 
 we might profit by the example of European countries, 
 "and even of some of 4 our Latin- American neighbors, to 
 the extent of having administration measures, prop- 
 Jriy_so calleq, dratted, introduced, and mafaageg" on 
 *thejBoqr Jby members of the administration, and those, -O 
 relating to the^rga^izatipn, jurisdiction, and duties of 
 
 18 Sanchez de Toca ("La Crisis de Nuestro Parlamentarismo") 
 as quoted by Mifiana, op. cit., p. 234. 
 
 19 William H. Taft, "Our Chief Magistrate," p. 11. 
 
78 RELATION OF EXECUTIVE 
 
 the judiciary by the justices of the Supreme Court. 
 But the term "administration measures/' in this sense, 
 would not include all bills favored by the executive or 
 originating in his recommendations, but only those 
 relating to the administration of government, that is, 
 to the organization, powers, duties, and relations of 
 the different departments, bureaus, and commissions. 
 In this way, as also in regaMJaJ)ills__relating to the 
 courts, the highest expert taknt..WDiiklJ)e employed in 
 preparing the measures for the consideration of Con- 
 gress, and those best qualified by experience would be 
 engaged in explaining and defending them. Under 
 such a plan as this, a bill to create a ^Department of 
 Munitions, or one to define the powers of the Interstate 
 Commerce Commission, or one to regulate proceedings 
 in the General Land Office, would be drafted and 
 sponsored by those best qualified to undertake the task, 
 while such an act as that which created the Circuit 
 Courts of Appeals would have been prepared under 
 the direct supervision of the Supreme Court, to the 
 obvious advantage, in every instance, of those most in- 
 terested in promoting the scientific accuracy and pre- 
 cision of such pieces of legislation, and eventually of 
 the country at large. 
 
IV 
 
 THE CABINET IN CONGRESS 
 
 The proposal that the members of the President's 
 cabinet should be given the right of direct access to 
 the floor of the two houses of Congress is not regarded 
 by those who favor it as at all inimical to the philo- 
 sophical principle in government of the separation of 
 the executive and legislative powers. On the contrary, 
 it is urged as a step to be taken in the direction of 
 bringing about a closer harmony and better co-ordina- 
 tion in the work of the two departments. Neverthe- 
 less, if the relations between the President and the 
 Congress are in a state of unstable equilibrium, and if 
 the balance has of late years been inclining in favor 
 of the power of the President, and that, with an 
 accelerating motion almost comparable to that of a 
 body falling in air, and if it has already become an 
 established custom for the President to use the mem- 
 bers of the cabinet as his most powerful advocates and 
 intermediaries in procuring from Congress what he de- 
 sires or blocking what he opposes, as we have tried to 
 show in the foregoing pages, then the proposal in ques- 
 tion must be studied as a factor in the constant strug- 
 gle of the executive branch of government for as- 
 cendancy and control. In its narrowest form the pro- 
 ject intends merely that the cabinet ministers should 
 have a legal right to go upon the floor of the Senate 
 
80 RELATION OF EXECUTIVE 
 
 or House and participate at will in the debates. In 
 its widest form, there is added the proposition that 
 they should have the right to introduce bills of their 
 own drafting, that they should be required to attend 
 the sittings of Congress either on call for their pres- 
 ence or on stated days, and that they should be under 
 the obligation to furnish information and to answer 
 questions concerning matters pending in, or which may 
 affect, their several departments. 
 
 Though this subject is of special importance at the 
 present moment, it is not a new thing in our history. 
 As far back as 1881, a select committee of the Senate 
 recommended the passage of an act giving the heads 
 of departments access to the floor of the houses, with 
 the right to introduce bills and to support them in de- 
 bate. The report of the committee was signed by Sen- 
 ators Pendleton, Allison, Voorhees, Elaine, Butler, In- 
 galls, Platt, and Farley. More than one President has 
 approved the suggestion, as, for example, President 
 Taft, who even urged a similar measure upon the at- 
 tention of Congress in his annual message of 1912. 
 And it is significant that President Wilson has revived 
 the custom, in abeyance since Washington's time, of 
 delivering his communications to Congress in person, 
 at the Capitol, with his own voice, though no one has 
 had the temerity of attempting to subject him, on such 
 occasions, to interrogation. The problem and its pro- 
 posed solution have recently been stated by President 
 Nicholas Murray Butler of Columbia University in the 
 following terms : 
 
 "The business of national government has become so 
 huge and so complex that the sharp separation of the ex- 
 
POWER TO LEGISLATION 81 
 
 ecutive and the legislative powers to which we have been 
 accustomed for one hundred and forty years is now dis- 
 tinctly disadvantageous. It brings in its train lack of 
 coherence and of continuity in public policy; it conceals 
 from the people much that they should know ; and it pre- 
 vents effective and quick co-operation between the Con- 
 gress and the executive departments, both in times of 
 emergency and in the conduct of the ordinary business of 
 government. There is a way to overcome these embar- 
 rassments and difficulties without in any way altering the 
 form of our government or breaking down the wise safe- 
 guards which the Constitution contains. That is to pro- 
 vide by law, as may be done very simply, that the mem- 
 bers of the cabinet shall be entitled to occupy seats on the 
 floor of the Senate and House of Representatives, with 
 the right to participate in debate on matters relating to 
 the business of their several departments, under such 
 rules as the Senate and House respectively may pre- 
 scribe. Such an act should further provide that the 
 members of the cabinet must attend sessions of the Sen- 
 ate and House of Representatives at designated times, in 
 order to give information asked by resolution or to reply 
 to questions which may be propounded to them under 
 the rules of the Senate and the House of Representa- 
 tives." 1 
 
 That this could be effected without a constitutional 
 amendment is of course apparent. It rests with Con- 
 gress. That body, by a line of precedents reaching 
 back almost to the organization of the government, 
 has established its power to require members of the 
 cabinet to report directly to it on matters connected 
 with their departmental affairs, and also its power to 
 admit any person, in its discretion, to the floor of 
 either house for the purpose of addressing it. It 
 could scarcely be denied, then, that Congress might re- 
 
 1 "A Program of Constructive Progress," an Address before 
 the Commercial Club of St. Louis, February 16, 1918, reprinted in 
 pamphlet form. 
 
82 RELATION OF EXECUTIVE 
 
 quire the cabinet ministers to render their reports and 
 to respond to questions on the floor of the house, in 
 person, and orally, or that it could afford them a stand- 
 ing right of access to either or both houses and a con- 
 tinuous privilege of addressing them from the floor on 
 subjects within their several provinces. Besides, as 
 President Taft pointed out, there is nothing in the 
 Constitution which explicitly authorizes Congress to 
 seat delegates from the territories in the House, with 
 the privilege of being heard in debate. Yet this has 
 been done, and there is no constitutional reason why 
 the same course might not be taken with respect to 
 members of the cabinet. 
 
 Though untried in the United States, this form of 
 participation by the executive officers in the work of 
 the legislature is familiar in several countries of Eu- 
 rope and of Latin- America ; and it is to their exper- 
 ience, therefore, that we must turn for information as 
 to the advantages or disadvantages of the system. But 
 there is an important distinction to be kept in mind. 
 It has not been proposed that the members of the 
 American cabinet should be elected members of either 
 house of Congress, or that the President should select 
 the heads of departments from among the Senators or 
 Representatives. Indeed, the Constitution expressly 
 forbids this. But in several foreign countries the 
 ministers of state necessarily are (or they may be) 
 members of the legislative body, of course with the 
 right to vote. This necessarily imposes a multiple re- 
 sponsibility upon an official acting in this dual capacity, 
 first to his associates in the ministry, who must not, by 
 reason of anything he does, be exposed to the hazard 
 
POWER TO LEGISLATION 83 
 
 of losing the confidence of the house, then to his con- 
 stituents at the polls, and finally to the legislative as- 
 sembly itself, since parliamentary practice (at least in 
 France, and probably elsewhere) requires the resigna- 
 tion of a minister upon the defeat of a measure which ' 
 he has sponsored. But an American cabinet minister, 
 given a seat in Congress with the right to introduce 
 bills and argue for their enactment, would be under no 
 responsibility whatever except that which always rests 
 upon him, namely, responsibility to his chief, the Presi- 
 dent, and if the defeat of even his most earnestly de- 
 sired measure, by even the most overwhelming ma- 
 jority, should bring about his resignation, it would be 
 prompted by chagrin and not by the rules of the parli- 
 amentary game. If, therefore, the entrance of min- 
 isters into the processes of legislation produces bene- 
 ficial results in England or in France, that is no argu- 
 ment whatever for the introduction of the system in 
 the United States. 
 
 In England, it is a part of the unwritten constitution 
 that every member of the cabinet must have a seat 
 either in the House of Commons or the House of 
 Lords, or in other words that the cabinet must be 
 made up from among the members of the majority 
 party in Parliament. 
 
 'The reason commonly given for such a limitation in 
 the selection of ministers is that otherwise they could not 
 be made responsible to Parliament, where they must be 
 present in order to answer questions and- give informa- 
 tion relating to their departments. From the standpoint 
 of Parliament this is perfectly true, but the converse is 
 also true. The head of a department sits in the House 
 
84 RELATION OF EXECUTIVE 
 
 of Commons quite as much in order to control the House 
 as in order that the House may control him/' 2 
 
 In France, by article 6 of the Constitution of 1875, 
 
 "the ministers shall have entrance to both chambers, and 
 shall be heard when they request it. They may be as- 
 sisted, for the discussion of a specific bill, by commis- 
 sioners named by decree of the President of the Repub- 
 lic." 
 
 In Switzerland, by article 101 of the Constitution of 
 1874, 
 
 "the members of the Federal Council shall have the right 
 to speak, but not to vote, in both houses of the Federal 
 Assembly, and also the right to make motions on the 
 subject under consideration." 
 
 In Holland, 
 
 "the heads of the ministerial departments shall have seats 
 in both houses. They shall have only a deliberative voice, 
 unless they have been elected members of the house in 
 which they sit. They shall furnish the houses, orally or 
 in writing, such information as is requested, and the fur- 
 nishing of which is not considered detrimental to the in- 
 terests of the state. They may be summoned by either of 
 the two houses to attend its meetings for this purpose." 
 (Constitution of 1887, art. 94.) 
 
 In Norway, by the Constitution of 1814, article 74, 
 
 "the ministers of state and the councillors of state shall 
 have the right to attend in the Storthing and in both 
 branches thereof, and, upon an equality with its members, 
 but without vote, to take part in the proceedings in so 
 far as they are conducted publicly, but in secret sessions 
 only in so far as the body in question may grant per- 
 mission." 
 
 The Constitution of the "Confederate States of Amer- 
 ica" also provided: 
 
 2 A. Lawrence Lowell, "The Government of England," Vol. 
 I, p. 61. 
 
POWER TO LEGISLATION 85 
 
 "Congress may by law grant to the principal officer in 
 each of the executive departments a seat upon the floor 
 of either house, with the privilege of discussing any 
 measure appertaining to his department." 
 
 In Belgium, Italy, and Spain, the ministers or secre- 
 taries of state are not necessarily members of either 
 house of the legislature, but they may be so. If mem- 
 bers, they have of course the right to vote, but other- 
 wise not. In either case they have the entrance to 
 both houses, and shall be heard upon their request. 
 
 The countries of Central and South America have 
 generally followed the "presidential system" in so far 
 as that ministers of state cannot at the same time be 
 members of the legislative body. This is true in Bra- 
 zil, Bolivia, Panama, Honduras, Mexico, the Argen- 
 tine, Guatemala, Salvador, Nicaragua, Costa Rica, the 
 Dominican Republic, Cuba, Peru, Ecuador, Colombia, 
 and Paraguay. However, a notable exception is found 
 in the case of Chile. But at the same time these coun- 
 tries have so far adopted the parliamentary system that 
 the ministers have access to the floor of the legisla- 
 ture to explain and defend measures, or may be sum- 
 moned there for that purpose. This is the constitu- 
 tional rule, for example, in Bolivia, Panama, Chile, 
 Paraguay, Honduras, Venezuela, Salvador, Nicaragua, 
 Costa Rica, the Dominican Republic, Haiti, Peru, and 
 Ecuador. For instance, the provisions of the Argen- 
 tine constitution (articles 63, 90, and 92) are that 
 
 "each chamber shall have power to summon to its pres- 
 ence the members of the cabinet, in order that they may 
 give orally the information which may be deemed neces- 
 sary. As soon as Congress meets, each minister shall 
 submit to it a report on the state of the nation so far as 
 
86 RELATION OF EXECUTIVE 
 
 relates to the business of his own department. The min- 
 isters may attend the sessions of Congress and take part 
 in the debates, but they shall have no vote." 
 
 In Colombia, the function of the ministers is still 
 more sharply defined, and they are expressly made the 
 connecting link between the executive and legislative 
 departments. The I34th article of the constitution of 
 that state p'rovides : 
 
 "The ministers are the organs of communication be- 
 tween the executive and Congress. They may introduce 
 bills in both houses, take part in the debates, and advise 
 the President to approve or object to the acts of the 
 legislature." 
 
 In Bolivia, the constitution not only permits but re- 
 quires the participation of ministers in debate when 
 the bill under discussion has been proposed by the ex- 
 ecutive. The 65th article is as follows: 
 
 "Laws may originate in the Senate or the Chamber of 
 Deputies by bills introduced by their members, or by a 
 message directed to them by the President of the Repub- 
 lic, on condition (in the latter case) that the bill shall be 
 supported in the debates by at least one of the cabinet 
 ministers, but he shall not have a vote." 
 
 On the other hand, the new constitution of Mexico 
 (1917) adheres more closely to the practice prevailing 
 in the United States. It is provided (article 93) that 
 
 "the secretaries of executive departments shall on the 
 opening of each regular session report to the Congress as 
 to the state of their respective departments. Either house 
 may summon a secretary of an executive department to 
 inform it, whenever a bill or other matter pertaining to 
 his department is under discussion." 
 
 Sole among these countries Brazil seems anxious to 
 exclude all vestiges of the parliamentary or cabinet sys- 
 tem; for its constitution (article 51) declares that 
 
POWER TO LEGISLATION 87 
 
 "the cabinet ministers shall not appear at the meetings of 
 the Congress, and shall communicate with it only in writ- 
 ing, or personally in conferences with the committees of 
 the chambers." 
 
 A very important part of the argument in favor of 
 admitting the heads of departments to the floor of 
 Congress is that it would enable them, promptly and 
 viva voce, to furnish authoritative information on the 
 needs and the workings of their departments and to 
 explain and defend their own bills or those known to 
 be administration measures. It will be of advantage, 
 therefore, to see how the practice of parliamentary in- 
 terrogation operates in those countries where it is in 
 vogue. Turning first to England, we find a very com- 
 plete account of the matter in President Lowell's im- 
 portant work on "The Government of England." 3 
 
 "Isolated examples of questions addressed to minis- 
 ters," he says, "can be found far back in the eighteenth 
 century, but the habit did not become common until about 
 sixty years ago. At that period, 100 or more questions 
 were asked in the course of a session, and the first regu- 
 lations were made regarding the time and method of 
 putting them. Thereafter the practice grew so fast that 
 in the seventies over 1000 were asked in a session, and by 
 the end of the century it had increased to about 5000. In 
 form, questions are simply requests for information. 
 They must contain no argument, no statement of fact not 
 needed to make their purport clear, and they must be ad- 
 dressed to that minister in the House in whose province 
 the subject-matter of the inquiry falls. They cover al- 
 most every conceivable field; the intentions of ministers 
 in the conduct of the business of the House ; acts done by 
 officials of all grades in every department of the public 
 service ; and even events that might be expected to give 
 rise to action by the government. The process of answer- 
 ing questions gives to the Treasury Bench an air of omni- 
 
 8 Vol. I, pp. 331-333- 
 
88 RELATION OF EXECUTIVE 
 
 science not wholly deserved, for notice of the question to 
 be asked is sent in a day or two in advance, so as to give 
 time for the permanent subordinates to hunt up the mat- 
 ter and supply their chief with the facts required. Ques- 
 tions are asked from various motives ; sometimes simply 
 to obtain information ; sometimes to show to constituents 
 the assiduity of their member, or to exhibit his opinions; 
 sometimes to draw public attention to a grievance ; some- 
 times to embarrass the government or make a telling 
 point ; and at times a question is asked by a supporter of 
 the minister in order to give him a chance to bring out a 
 fact effectively. But whatever the personal motive may be, 
 the system provides a method of dragging before the 
 House any act or omission by the departments of state, 
 and of turning a searchlight upon every corner of the 
 public service. The privilege is easily abused, but it 
 helps very much to keep the administration of the coun- 
 try up to the mark, and it is a great safeguard against 
 negligent or arbitrary conduct, or the growth of that 
 bureaucratic arrogance which is quite unknown in Eng- 
 land. The minister is not, of course, obliged to answer, 
 but unless he can plead an obvious reason of public policy 
 why he should not do so, as is often the case in foreign 
 affairs, a refusal would look like an attempt to conceal, 
 and would have a bad effect. Now while questions fur- 
 nish a most effective means of bringing administrative 
 errors to the notice of the House, they afford no oppor- 
 tunity for passing judgment upon them, and thereby they 
 avoid the dangers of the French custom of interpella- 
 tions. A question in England is not even followed by a 
 debate. Often, indeed, the member says that his inquiry 
 has not been fully answered, or interjects a remark, ob- 
 jection, or further question ; but this is never allowed to 
 grow into a discussion, and when the habit of asking sup- 
 plementary questions becomes too common, the ministers 
 refuse to answer them altogether, to the temporary ex- 
 asperation of the opposition, or the Speaker himself 
 checks them, enforcing the rule against introducing mat- 
 ter of argument. If no debate is in order, neither is a 
 vote; and hence questions furnish a means of drawing 
 public attention to an act, but not for collective censure 
 of it by the House." 
 
POWER TO LEGISLATION 89 
 
 In France, the interrogation of ministers plays a 
 much more important part in parliamentary tactics and 
 even in the administration of government, since an in- 
 terpellation may be made the foundation of a motion 
 involving the question of the minister's continued re- 
 tention of the confidence of the house or his loss of 
 it, with the ultimate necessity of the tender of his 
 resignation, or even that of the entire ministry, if de- 
 feated. The present President of the French Republic 
 has thus explained the matter: 
 
 "The constitutional law of July 16, 1875, enacts in ar- 
 ticle 6: The ministers have the right of entry in the 
 two chambers and must be heard when they demand a 
 hearing/ Thus a minister who is a Senator may speak in 
 the Chamber of Deputies ; a minister who is a Deputy 
 may ascend the tribune in the Senate ; and a minister who 
 is neither a Senator nor Deputy can be heard in either 
 chamber. Ministers therefore -intervene in the work of 
 legislation. They support the projects of laws which 
 they have introduced; they give their advice as to pro- 
 posals initiated by Parliament ; they oppose resolutions 
 and amendments of which they do not approve. As it 
 would be difficult for them to have cognizance of all the 
 matters in debate, they may be assisted by administrative 
 delegates appointed for the discussion of any particular 
 law projected, by decree of the President of the Re- 
 public. These auxiliaries are known as commissaries of 
 the government. Ministers, being responsible to the 
 chambers, may be questioned or interpellated upon the 
 acts of their administration. When a question is put to 
 a minister, he is free to reject it and to give no reply; but 
 he has not the right to evade an interpellation put in 
 writing by the President of the Assembly. The most that 
 he can do is to demand an adjournment of the discussion. 
 An interpellation in respect of internal policies is never 
 adjourned for more than a month. The Deputy who 
 brings forward the interpellation develops it, and the 
 other members of the Assembly take part in the debate if 
 
90 RELATION OF EXECUTIVE 
 
 they think fit, and the matter ends with the proposal of a 
 parliamentary resolution, which is known as an 'order of 
 the day/ 'The Chamber, making note of the declaration 
 of the government/ or 'counting upon the government 
 to . . .' or 'confiding in the government. . . .' If an 
 order of the day in conformity with the desire of the in- 
 terpellated minister is not adopted, the minister is de- 
 feated; he retires, and offers his resignation to the Presi- 
 dent of Council. If the interpellation involves the gen- 
 eral policy of the cabinet, and the order of the day is un- 
 favorable, the entire ministry is under the moral obliga- 
 tion of resigning." 4 
 
 Could this system be adapted to the work of legis- 
 lation in the United States? Let it be supposed that 
 the members of the cabinet have been accorded the 
 right to go upon the floor of Congress, to introduce 
 bills, and to speak in their behalf. Then let it be sup- 
 posed that a cabinet minister presents a bill relating to 
 the military establishment (for the sake of example, 
 a bill to raise an army by voluntary enlistment), but it 
 develops in the course of interpellation and debate that 
 both of the houses, by a strong but not overwhelming 
 majority, are opposed to his ideas and would favor a 
 conscription act. In England or Canada the matter 
 would be pressed to a vote ; in France an "order of the 
 day" would be passed; in either case a situation would 
 be created in which it would be incumbent on that 
 minister to resign, and perhaps his fall would involve 
 that of the entire ministry. But not only that would 
 result. The next step would be the appointment of 
 a ministry in sympathy with the views of the parlia- 
 mentary majority, and they would frame, introduce, 
 and carry a different bill on the same subject. And 
 
 4 Raymond Poincare, "How France is Governed," pp. 200-202. 
 
POWER TO LEGISLATION 91 
 
 thus the will of the majority would be accomplished. 
 Not so, however, in the United States. The defeated 
 minister would not resign unless he found himself in 
 disagreement with the President. That is a case which 
 has rarely occurred in our history. Otherwise the situ- 
 ation would result in a deadlock, the majority not be- 
 ing able to effect its will unless numerically strong 
 enough to overcome the President's probable veto; or 
 else the President would be able to break down oppo- 
 sition by influence, pressure, promises, and other de- 
 vices of the lobby, and so thwart the real desire of the 
 majority. We return, then, to the conclusion already 
 indicated, that it is not feasible to have a parliamentary, 
 system of government, even to the extent proposed, 
 without ministerial responsibility. 
 
 It is argued, and with some justice, that the pro- 
 posed change in the relation of the cabinet to the Con- 
 gress would obviate the necessity of whispered inter- 
 views in the corridors and cloak rooms, bring into the 
 open many proceedings which are now too often of a 
 subterranean character, and place the heads of depart- 
 ments in an attitude towards legislation at once cor- 
 rect and befitting their high station. Nicholas Mur- 
 ray Butler, in the pamphlet already cited, says : 
 
 "A cabinet officer is in a much more dignified position 
 if he is permitted to answer questions as to his official 
 conduct and business on the floor of a legislative body, 
 and to make his reply part of the public record, than if 
 he is interrogated in a committee room as an incident in 
 some general inquiry/' 
 
 This suggests, what is indeed the fact, that the prob- 
 lem is wide enough to involve a consideration of the 
 powers and procedure of the standing committees. In 
 
92 RELATION OF EXECUTIVE 
 
 substance, the proposal is to take the cabinet minister 
 out of the committee room and place him on the floor 
 of the house. A French writer on comparative con- 
 stitutional law, after speaking of the standing com- 
 mittees of the Senate and House as "organs of rela- 
 tion" between the legislative and executive powers, 
 has said : 
 
 "Ministers who wish to have a bill introduced confer 
 with the chairman of the appropriate committee. Some 
 of these committees exercise by this means an incessant 
 supervision over the administration. They cite the min- 
 isters before them and interrogate them concerning their 
 methods and objects. This supervision is contrary to the 
 principle of the separation of powers; it is secret, and 
 consequently favors intrigues and compromises, and may 
 hinder the progress of the government. The result is 
 disorder and impotence." 5 
 
 On this, however, it is necessary to remark that such 
 examinations are now very seldom private or confi- 
 dential, except where important military secrets are in- 
 volved or delicate affairs of state. Almost always a 
 member of the cabinet presents himself before a com- 
 mittee, whether on summons or at his own request, for 
 the purpose of a public hearing, at which he has full 
 opportunity not only to supply information but also to 
 press his own views and arguments, and the proceed- 
 ings are published at large and in detail in the press. 
 The argument for publicity and for placing the heads 
 of departments in a correct attitude towards legislation 
 would therefore appear to have little weight in so far 
 as it relates to discussion of the policies of law-making 
 
 5 Esmein, "Elements de Droit constitutional et comparee," 
 (Paris, 1914), as quoted by Mifiana, "La Division de los Poderes 
 del Estado/' p. 216. 
 
POWER TO LEGISLATION 93 
 
 or the presentation of information for the guidance of 
 the legislators ; but it must be admitted that it does not 
 lack force in its relation to the more or less stealthy 
 and certainly undignified exertion of pressure by ex- 
 ecutive officers to secure the success or defeat, the 
 moulding or the modification, of pending bills, always 
 assuming that such practices cannot otherwise be 
 brought to an end. 
 
 Those who favor the admission of the members of 
 the cabinet to the floor of the houses, with the right to 
 participate in debate, believe that, under such condi- 
 tions, the executive departments would be presided 
 over by men of much higher intelligence and greater 
 capacity. Thus, ex-Governor McCall (in a published 
 interview already quoted) says: 
 
 "One effect of such a change would be an improve- 
 ment in the average capacity of cabinet members. We 
 have had members appointed to the cabinet who have 
 had little or no experience in public affairs or in main- 
 taining their views before a parliamentary body. I think 
 men would be required in the cabinet of a very different 
 calibre from some of those who have heretofore been put 
 at the head of a department of the government, should 
 some change along this line be made/' 
 
 In the report of the Senate committee on this sub- 
 ject, to which reference has been made, it was said : 
 
 "This system will require the selection of the strongest 
 men to be heads of departments, and will require them to 
 be well equipped with the knowledge of their offices. It 
 will also require the strongest men to be the leaders of 
 Congress and participate in debate. It will bring these 
 strong men in contact, perhaps in conflict, to advance the 
 public weal, and thus stimulate their abilities and their 
 efforts, and will thus assuredly result to the good of the 
 country." 
 
94 RELATION OF EXECUTIVE 
 
 President Taft, who strongly favored the proposed 
 change, has recorded his belief that 
 
 "this would impose on the President greater difficulty in 
 selecting his cabinet, and would lead him to prefer men 
 of legislative experience who have shown their power 
 to take care of themselves in legislative debate. It would 
 stimulate the head of each department by the fear of pub- 
 lic and direct inquiry into a more thorough familiarity 
 with the actual operations of his department and into a 
 closer supervision of its business. " 6 
 
 To the same effect also is the opinion of Dr. Butler, 
 who observes : 
 
 "Were such a custom to be established, an almost cer- 
 tain result would be the selection as heads of the great 
 executive departments of men of large ability and per- 
 sonal force, men able to explain and defend their policies 
 and measures before the Congress of the United States 
 in the face of the whole country." 7 
 
 But all this is predicated upon the supposition that an 
 incoming President has a perfectly free hand in se- 
 lecting the members of his cabinet, and could choose 
 them with regard solely to their ability and experience. 
 But has this ideal ever been realized in our history ? In 
 fact, cabinet appointments are often dictated by con- 
 siderations of political expedience. There are power- 
 ful and dangerous rivals to be placated or disarmed. 
 There are party leaders, campaign managers, heavy 
 contributors to the campaign funds, whose preferences 
 must be consulted, whether they lie in the direction of 
 personal ambition or the distribution of high offices. 
 Good party policy also requires a certain geographical 
 apportionment of the cabinet ministers. And is it al- 
 
 6 William H. Taft, "Our Chief Magistrate," p. 31. 
 
 7 "A Program of Constructive Progress/' ut supra. 
 
POWER TO LEGISLATION 95 
 
 ways certain that a President, himself ambitious and 
 conscious of a gift for leadership, would be willing to 
 invite into his official family, and to place on the floor 
 of Congress as his spokesmen and representatives, men 
 of very conspicuous and perhaps overshadowing abil- 
 ity? The trouble with most political formulas is that 
 they leave out of view the personal element in the equa- 
 tion. But it was precisely this point political power 
 as a function of personality that the founders of the 
 Republic had in mind when they framed the Constitu- 
 tion and devised the form of government under which 
 we have hitherto prospered. 
 
 Minor arguments are not wanting for the suggested 
 change in the status of the heads of departments. 
 Thus, it is said that, with the best intentions in the 
 world, Congress often blunders sadly in its enactments 
 for the lack of exact information upon specific details, 
 and that this would not happen if the cabinet minister 
 possessing precisely the needed facts and figures were 
 present in debate, and if it were his duty either to vol- 
 unteer or to supply on request what the legislators 
 should learn. President Taft says that the proposed 
 new system 
 
 "would give the President what he ought to have, some 
 direct initiative in legislation and an opportunity, through 
 the presence of his competent representatives in Congress, 
 to keep each house advised of the facts in the actual 
 operation of the government. The time lost in Congress 
 over useless discussion of issues that might be disposed 
 of by a single statement from the head of a department, 
 no one can appreciate unless he has filled such a place." 8 
 
 And in the same strain it is remarked by Dr. Butler : 
 
 8 William H. Taft, "Our Chief Magistrate," p. 31. 
 
96 RELATION OF EXECUTIVE 
 
 "Had such a provision been in force during the past 
 generation, the nation would have been spared many an 
 unhappy and misleading controversy. What has some- 
 times been made public only after the labor and cost of 
 an elaborate investigation by committee, might have been 
 had without delay through the medium of questions put 
 to a cabinet officer on the floor of the Senate or the House 
 of Representatives/' "No feature of British parliament- 
 ary practice," he adds, "is more useful or contributes 
 more to a public understanding of what the executive is 
 doing, than the proceedings at question-time in the House 
 of Commons/' 9 
 
 Again, it is said that, at his place on the floor of 
 Congress, a member of the cabinet would stand as the 
 spokesman of the administration, and by explaining 
 clearly and with authority the attitude of the President 
 towards a pending bill, or his wishes in regard to con- 
 templated legislation, he would be able to avoid dis- 
 astrous misunderstandings and possible vetoes. But 
 in fact, no one of our recent Presidents has hesitated 
 for a moment to tell Congress what was his attitude 
 towards any pending bill or to express in concrete form 
 his views as to expedient legislation. Nor have Presi- 
 dents hesitated to employ cabinet ministers as their 
 spokesmen in these matters. 
 
 It has been objected that the new duties sought to 
 be imposed upon the members of the cabinet, with 
 reference to their attendance upon the houses of Con- 
 gress and the introduction and engineering of legisla- 
 tion, would absorb so much of their time and attention 
 that they would be unable pro'perly to conduct the or- 
 dinary administration of their departments. This 
 seems highly probable. But a remedy was suggested 
 
 9 "A Program of Constructive Progress," ut supra. 
 
POWER TO LEGISLATION 97 
 
 by the Senate committee appointed in 1881 to con- 
 sider the question, in their report to which reference 
 has already been made, as follows : 
 
 "If it should appear by actual experience that the heads 
 of departments in fact have not time to perform the ad- 
 ditional duty imposed on them by this bill, the force of 
 their offices should be increased or the duties devolving on 
 them personally should be diminished. An under-secre- 
 tary should be appointed, to whom could be confided that 
 routine of administration which requires only order and 
 accuracy. The principal officers could then confine their 
 attention to those duties which require wise discretion 
 and intellectual activity. Thus they would have abun- 
 dance of time for their duties under this bill. Indeed, 
 your committee believes that the public interest would be 
 subserved if the secretaries were relieved of the har- 
 rassing cares of distributing clerkships and closely su- 
 pervising the mere machinery of the departments. Your 
 committee believes that the adoption of this bill and the 
 effective execution of its provisions will be the first step 
 toward a sound civil-service reform which will secure a 
 larger wisdom in the adoption of policies and a better 
 system in their execution. " 
 
 A little reflection will show that this proposal in- 
 volves a profound change in cur system of administra- 
 tion, and notwithstanding the eminence of the names 
 signed to the committee's report, the opinion may be 
 hazarded that it would be very difficult to get the con- 
 sent of the American people to intrust the conduct of 
 their public business to a hierarchy of under-secreta- 
 ries possessing a genius for "order and accuracy," but 
 not required to exhibit "intellectual activity." Under 
 such a regime, the under-secretaries would inevitably 
 tend to become permanent officials. Their very effi- 
 ciency would be an argument against their removal 
 upon a change of administration. And hence it would 
 
98 RELATION OF EXECUTIVE 
 
 sometimes happen that the actual government of the 
 great executive departments would be in the hands of 
 men not in sympathy with their political chiefs or with 
 the President's closest advisers. Anyone who realizes 
 the important part now played by the assistant secre- 
 taries of the several departments will perceive that such 
 a system would lead only to incessant jealousy and con- 
 flict within the department or else to stagnation and 
 decay in the public business. 
 
 To sum up the argument, the proposal to bestow 
 upon the members of the cabinet the right of initiative 
 in legislation and the right to take part in the debates 
 of Congress appears a very simple matter. But who 
 can foretell the consequences to which it might lead? 
 Very wise were the words of Lord Bryce, written now 
 thirty years ago but closely applicable to present-day 
 conditions. 
 
 "While some bid England borrow from her daughter, 
 other Americans conceive that the separation of the legis- 
 lature from the executive has been carried too far in 
 the United States, and suggest that it would be an im- 
 provement if the ministers of the President were per- 
 mitted to appear in both houses of Congress to answer 
 questions, perhaps even to join in debate. I have no 
 space to discuss the merits of this proposal, but must ob- 
 serve that it might lead to changes more extensive than 
 its advocates seem to contemplate. The more the Presi- 
 dent's ministers come into contact with Congress, the 
 more difficult will it be to maintain the independence of 
 Congress which he and they now possess. When not long 
 ago the Norwegian Storthing forced the king of Sweden 
 and Norway to consent to his ministers appearing in that 
 legislature, the king, perceiving the import of the conces- 
 sion, resolved to choose in future ministers in accord with 
 the party holding a majority in the Storthing. It is hard 
 to say, when one begins to make alterations in an old 
 
POWER TO LEGISLATION 99 
 
 house, how far one will be led on in rebuilding, and I 
 doubt whether this change in the present American sys- 
 tem, possibly in itself desirable, might not be found to 
 involve a reconstruction large enough to put a new face 
 upon several parts of that system." 10 
 
 No clear prevision of the renovations ultimately to 
 be effected is of course possible. But if, as Bryce 
 thought, the change might lead to struggles on the part 
 of the executive to maintain its independence of Con- 
 gress, the opinion is at least defensible that the reaction 
 might be in the other direction, that is, in the way of 
 increasing the dominance of the executive over the 
 legislative branch. Few lessons on this point are to be 
 drawn from our previous history. But such as they 
 are, they are instructive. It will be recalled that Wash- 
 ington once visited the Senate, accompanied by the 
 Secretary of War, General Knox, for the purpose of 
 obtaining the "advice and consent" of the Senate on 
 certain matters connected with the negotiation of a 
 treaty. The seven propositions submitted were so 
 framed that they could all be answered by a simple 
 affirmative or negative. Knox had with him a paper 
 containing an explanation of the matters in question, 
 and Washington expected that a vote (of course affir- 
 mative) would be taken immediately upon the reading 
 of this paper. But instead, a motion was made to refer 
 the matter to a committee. Upon this Washington 
 started to his feet with every symptom of violent 
 anger. "This defeats every purpose of my coming 
 here," he exclaimed, and added that he had brought 
 the Secretary of War with him to give every neces- 
 sary information; that the Secretary knew all about 
 
 10 Bryce, "American Commonwealth" (1889), Vol. I, p. 284. 
 
ioo RELATION OF EXECUTIVE 
 
 the business, and yet he was delayed and could not go 
 on with the matter. But after a little, the President, 
 though professing not to understand the necessity for 
 the intervention of a committee, observed that he had 
 no objection to postponing the matter to a day fixed in 
 the near future. Senator Maclay (in whose "Journal" 
 the incident is recorded) continues thus: 
 
 "A pause for some time ensued. We waited for him 
 to withdraw. He did so with a discontented air. Had 
 it been any other man than the man whom I wish to re- 
 gard as the first character in the world, I would have 
 said, with sullen dignity. I cannot now be mistaken. 
 The President wishes to tread on the necks of the Senate. 
 Commitment will bring the matter to discussion, at least 
 in the committee, where he is not present. He wishes us 
 to see with the eyes and hear with the ears of his Secre- 
 tary only; the Secretary to advance the premises, the 
 President to draw the conclusions, and to bear down our 
 deliberations with his personal authority and presence. 
 Form only will be left to us." But he added: "This will 
 soon cure itself." 
 
V 
 
 THE SELECTIVE OR PARTIAL VETO 
 
 When an appropriation bill is passed by the two 
 houses of Congress and laid before the President, he 
 often finds strong grounds for disapproving some one 
 or more of its various items, or perhaps an irrelevant 
 "rider" attached to it, while he is entirely in favor of 
 the rest. Yet he must deal with the bill as a whole. 
 He must either sign it or return it with his objections 
 to the house in which it originated. The veto power 
 given by the Constitution is not selective. That it 
 should be made so that the President should be given 
 at least a suspensive veto as to items selected from 
 perhaps a large number included in a bill without the 
 necessity of condemning the whole has been very 
 frequently proposed in Congress. It is said that at as 
 many as forty-five different times resolutions for the 
 amendment of the Constitution in this particular have 
 been offered. The matter has been urged by several 
 of the Presidents, notably by Grant and Arthur, in 
 their messages to Congress. President Grant, in his 
 fifth annual message, December i, 1873, recom- 
 mended to Congress a constitutional amendment 
 
 "to authorize the executive to approve of so much of any 
 measure passed by the two houses of Congress as his 
 judgment may dictate, without approving the whole, the 
 disapproved portion or portions to be subjected to the 
 same rules as now, to wit, to be referred back to the 
 
104 RELATION OF EXECUTIVE 
 
 3ns'ir> which the measure or measures originated, and, 
 if passed by a two-thirds vote of both houses, then to 
 become a law without the approval of the President. I 
 would add to this a provision that there should not be 
 legislation by Congress during the last twenty-four hours 
 of its sitting, except upon vetoes, in order to give the 
 executive an opportunity to examine and approve or dis- 
 approve bills understandingly." He thought that this 
 "would protect the public against the many abuses and 
 waste of public moneys which creep into appropriation 
 bills and other important measures passed during the ex- 
 piring hours of Congress, to which otherwise due con- 
 sideration cannot be given." 
 
 President Arthur, in his second annual message, De- 
 cember 4, 1882, objected to the practice of grouping 
 large numbers of items of appropriations in the gen- 
 eral river and harbor bill. This practice, he said, 
 
 "inevitably tends to secure the success of the bill as a 
 whole, though many of the items, if separately consid- 
 ered, could scarcely fail of rejection." 
 
 He urged the enactment of a separate bill for each 
 such item, but if this was impracticable, he called at- 
 tention to the fact that the constitutions of fourteen 
 states (at that time) permitted the executive to veto 
 separate items in appropriation bills, and said : 
 
 "I commend to your careful consideration the question 
 whether an amendment of the federal Constitution in the 
 particular indicated would not afford the best remedy for 
 what is often grave embarrassment both to members of 
 Congress and to the executive, and is sometimes a serious 
 public mischief." 
 
 Arthur was so convinced of the necessity of such an 
 amendment that, although no result followed his rec- 
 ommendation, he renewed it in his third and fourth 
 annual messages. 
 
 Moreover, this proposed change has been discussed 
 
POWER TO LEGISLATION 103 
 
 with very general approbation in the public press, and 
 has been advocated by large and influential civic bodies 
 and associations of business men. Yet the movement 
 has hitherto failed to enlist that united and determined 
 popular insistence which is still required for effecting 
 a change in the organic law. It may be that it will 
 eventually succeed. But if so, it will come, as consti- 
 tutional amendments should come, not as the fruit of 
 sudden impulse, but as the result of a sound and nat- 
 ural growth in our political institutions. 
 
 Executive authority to veto separate items in ap- 
 propriation bills first appears in the constitution of the 
 Confederate States, adopted in 1861. The same clause 
 was written into the constitutions of two or three of 
 the southern states during the reconstruction period, 
 and has met with such general favor on the part of the 
 states that it is now a part of the fundamental law of 
 no less than thirty-seven of them. That is to say, the 
 governor now possesses this authority in all of the 
 states except five of the New England states (Massa- 
 chusetts having given her governor the right of partial 
 veto by constitutional amendment in 1918), North 
 Carolina (where he has no veto power at all), and a 
 group of five central or western states comprising In- 
 diana, Iowa, Nevada, Tennessee, and Wisconsin. It is 
 also a significant fact that Congress has extended this 
 power to the Governor of Porto Rico and the Gover- 
 nor-General of the Philippines in the recent acts pro- 
 viding for the civil government of those possessions. 
 
 That the purpose and operation of this selective veto 
 may be made clear, it will be appropriate to quote here 
 the provision of the Constitution of New York on the 
 
104 RELATION OF EXECUTIVE 
 
 subject, which may be taken as typical of the rest. It 
 is as follows : 
 
 "If any bill presented to the governor contain several 
 items of appropriation of money, he may object to one 
 or more of such items, while approving of the other por- 
 tion of the bill. In such case, he shall append to the bill, 
 at the time of signing it, a statement of the items to 
 which he objects, and the appropriation so objected to 
 shall not take effect. If the legislature be in session, he 
 shall transmit to the house in which the bill originated a 
 copy of such statement, and the items objected to shall 
 be separately considered. If on reconsideration one or 
 more of such items be approved by two-thirds of the 
 members elected to each house, the same shall be part of 
 the law, notwithstanding the objections of the governor." 
 
 Some state governors, including ex-Governor Whit- 
 man of New York, have strongly urged upon the state 
 legislatures the submission of a constitutional amend- 
 ment which would permit the executive not only to "ob- 
 ject" to particular items, but to "reduce" those deemed 
 excessive. And in Massachusetts this has been ac- 
 complished by an amendment adopted in 1918, which 
 provides that "the governor may disapprove or reduce 
 items or parts of items in any bill appropriating 
 money." This seems a logical extension of the power 
 already granted. For it might well happen that an ap- 
 propriation for a particular public object might be not 
 only commendable but even necessary for the efficient 
 conduct of government, and yet a governor, exercising 
 his conscientious judgment on the subject, might con- 
 sider it grossly excessive. But legislatures hesitate at 
 this point. To enlarge the governor's power in this 
 respect seems too complete a surrender of the control 
 of the purse, which historically does not belong to the 
 
POWER TO LEGISLATION 105 
 
 executive branch. Yet the governors of several other 
 states have claimed that their constitutional authority 
 to "disapprove" items in appropriation bills included 
 the right to reduce those objected to in amount. The 
 governor of Pennsylvania has more than once acted on 
 this assumption, and he has been sustained by a de- 
 cision of the Supreme Court of that state. In four or 
 five other states the same course has been taken by the 
 executive, but the courts have not yet passed upon its 
 legality. In Colorado, in view of the fact that the legis- 
 lature is prohibited from making appropriations in ex- 
 cess of the amount provided for by tax laws then in 
 existence or enacted for the purpose, the Supreme 
 Court of that state says that the clause in the consti- 
 tution giving this power to the governor 
 
 "shows a clear purpose to invest the executive with dis- 
 cretion to save such appropriations as are necessary to 
 defray the expenses of the government, without the dan- 
 ger of incumbering or defeating them by excessive or im- 
 provident expenditures." 
 
 In Illinois and Mississippi, however, the courts have 
 ruled that the power given to the governor to veto any 
 distinct item or section in an appropriation bill does 
 not give him authority to disapprove of a part of a 
 distinct item and approve the remainder, and if he 
 vetoes a part of an item, as by striking out the words 
 "per annum" or by approving part of an item and dis- 
 approving the remainder, his action is void. And in 
 Oklahoma it has been decided that when an appropria- 
 tion bill contains only a single item, the governor can- 
 not approve the appropriation and the amount of it and 
 at the same time disapprove the parts of the act which 
 
106 RELATION OF EXECUTIVE 
 
 direct how the appropriated funds shall be apportioned. 
 But if the governor is to be permitted to exercise 
 the veto power upon separate portions of a bill, why 
 stop at appropriation bills ? South Carolina and Wash- 
 ington authorize their governors to veto any section 
 of any bill presented to them. In Alabama, the con- 
 stitution authorizes the governor to return a bill to the 
 legislature without his approval, but with a message 
 proposing amendments "which would remove his ob- 
 jections/' If both houses accept the amendments, the 
 bill is then returned to the governor to be acted on as 
 in other cases. If either rejects the amendments, it 
 must reconsider the bill. If both reject the amend- 
 ments by a majority of the whole number of members 
 elected to each house, the bill becomes a law. In 
 Massachusetts, it is the privilege of the governor, 
 within five days after any bill shall have been laid be- 
 fore him, to return it to that branch of the legislature 
 in which it originated, with a recommendation that any 
 amendment or amendments specified by him be made 
 therein. So also in Australia, 
 
 "the Governor-General may return to the house in which 
 it originated any proposed law so presented to him, and 
 may transmit therewith any amendments which he may 
 recommend, and the houses may deal with the recom- 
 mendation." 
 
 In Virginia, if the governor 
 
 "approves the general purpose of any bill, but disap- 
 proves any part or parts thereof, he may return it, with 
 recommendations for its amendment, to the house in 
 which it originated, whereupon the same proceedings 
 shall be had in both houses upon the bill and his recom- 
 mendations in relation to its amendment as is above pro- 
 vided in relation to a bill which he shall have returned 
 
POWER TO LEGISLATION 107 
 
 without his approval and with his objections thereto; pro- 
 vided that if, after such reconsideration, both houses, by 
 a vote of a majority of the members present in each, 
 shall agree to amend the bill in accordance with his 
 recommendation in relation thereto, or either house by 
 such vote shall fail or refuse to so amend it, then, and in 
 either case, the bill shall be again sent to him, and he may 
 act upon it as if it were then before him for the first 
 time." 
 
 And this enlarged participation of the executive in the 
 business of making the laws, either by the selective 
 veto or by the offering of amendments, is familiar in 
 the countries of Latin- America, not only in practice 
 but by the specific authorization of their constitutions. 
 In Mexico, the Argentine, Paraguay, Colombia, and 
 Panama, the president may veto any bill in whole or in 
 part. In Ecuador and Costa Rica, his objections to 
 any bill may take the form of corrections, modifica- 
 tions, or amendments. The constitutional provision in 
 the last-named republic is quite interesting. It is as 
 follows : 
 
 "The executive power may object to any bill, either be- 
 cause he judges it as a whole to be inadvisable or because 
 he believes it necessary that it should be amended or re- 
 formed, and in the latter case he shall propose the changes 
 to be made. ... If the modifications [proposed by the 
 executive] are adopted, the bill shall be sent to the ex- 
 ecutive power, which cannot in this case refuse its ap- 
 proval. If the amendments are rejected, and the two- 
 thirds vote necessary to pass the bill is not secured, it 
 shall be placed in the archives and cannot be considered 
 again until the next ordinary session." , 
 
 This system of permitting the executive authority 
 to point out defects in a bill or make suggestions for 
 its emendation, without being under the necessity of 
 undoing the entire work of the legislature upon it by 
 
io8 RELATION OF EXECUTIVE 
 
 his veto, has been explained and defended by a for- 
 mer governor of Alabama in a paper recently pub- 
 lished, from which the following quotations are taken : 
 
 "In Alabama the power to veto has been accompanied 
 with the power to amend, a power which we believe is not 
 granted to the executive under the terms of the constitu- 
 tion of any other state, except in a modified form in the 
 state of Virginia, where the governor is permitted to 
 suggest, but not to initiate, amendments. In the exercise 
 of this prerogative in Alabama, the governor may return 
 bills presented to him without giving his approval and 
 may suggest and prepare amendments which would re- 
 move his objections. These amendments the legislature 
 may concur in, or, not concurring, it may proceed to pass 
 the bill over the veto, as in cases where the power to 
 amend is not given. 
 
 "This power of amendment, while a new idea in our 
 theory of government, has proved to be of great value. 
 By its exercise the governor has been enabled in many 
 instances to amend a meritorious statute, otherwise un- 
 constitutional, so as to give it validity, or to suggest and 
 submit additions or call attention to omissions which 
 would better adapt the proposed law to the conditions it 
 was designed to meet. Nor is this power any undue ex- 
 tension of the executive function. If the governor is 
 properly a part of the law-making power to the extent 
 of approving or disapproving bills or initiating legisla- 
 tion by submitting his recommendations in the form of 
 bills, if the public is entitled to his judgment on the laws 
 affecting it, it is an illogical limitation on that duty to 
 restrain it within the narrow channels of approval or 
 disapproval of a bill as it stands, when, with the elimina- 
 tion of unwise provisions or the addition of needed sec- 
 tions, it could be easily altered into fitness to serve a 
 beneficial purpose. 
 
 "But it may be claimed that by conferring on the gov- 
 ernor the veto power vested in him by the Alabama con- 
 stitution we would be delegating to him legislative func- 
 tions. It is well, however, to remember that the capa- 
 city of a law to serve the purposes for which it is designed 
 
POWER TO LEGISLATION 109 
 
 cannot be fully known until it is put into operation. It 
 is in the execution of laws that their defects become ap- 
 parent. The executive has, therefore, a practical ex- 
 perience in which members of the legislature are fre- 
 quently and of necessity wanting, which peculiarly quali- 
 fies him to point out the parts in which a proposed law is 
 insufficient, onerous, or ill-considered, and to remove by 
 his amendment those features which bear too heavily on 
 rights which should not be burdened or impaired, or to 
 add those without which the act would be ill-balanced, 
 ineffective, or incapable of practical or proper enforce- 
 ment. Hence it is apparent that the power to amend a 
 bill as provided in the Alabama constitution is intimately 
 related to the executive function, and only gives the 
 people the benefit of the knowledge which a governor ac- 
 quires by the exercise of the duties of the chief executive 
 office." 1 
 
 Sound reasons for granting a partial or discrimi- 
 native veto to the President of the United States, in 
 respect to money bills, are not far to seek. Our whole 
 wasteful and haphazard method of making appropria- 
 tions is at fault. ''Pork-barrel" legislation is a no- 
 torious and malodorous fact. So also is the pernicious 
 habit of attaching "riders" to appropriation bills, often 
 totally unrelated to the general subject, and which 
 would surely incur the executive disapproval if pre- 
 sented separately. Arguing for a constitutional 
 amendment to counteract these tendencies, a respecta- 
 ble newspaper has recently observed: 
 
 "One of the great evils of legislation, state and na- 
 tional, lies in the fact that vicious items find their way 
 into appropriation bills, and remain there because the ex- 
 ecutive must take his choice between vetoing a bill gen- 
 erally meritorious or necessary for the operation of gov- 
 ernment affairs, or accepting it despite its bad features. 
 
 1 Hon. Emmet O'Neal, "Strengthening the Power of the Ex- 
 ecutive," in Virginia Law Review, December, 1917, pp. 163-165. 
 
i io RELATION OF EXECUTIVE 
 
 The public buildings bill, the river and harbors bill, and 
 similar other measures, ordinarily contain many articles 
 of merit along with others of no merit, which are put 
 there as a sop to members whose votes are needed to 
 pass the legislation, or at the behest of members who are 
 anxious to get something out of the public treasury for 
 their districts. The President cannot approve the good 
 features of the bill and strike out the bad, but must ap- 
 prove the whole or veto it. Under the proposed amend- 
 ment a President could approve a bill in principle and 
 strike out its objectionable features. Hardly anyone will 
 quarrel with the wisdom of a policy which will permit of 
 the exercise of such discretion. Then there is the habit 
 of attaching riders to appropriation bills as a means of 
 jamming legislation through. A matter may have no 
 more bearing on the bill to which it is attached as a rider 
 than the canals of Mars have with the price of eggs, but 
 it is attached and passed, and when the measure comes 
 before the executive he has his choice between signing the 
 bill, rider and all, or vetoing some appropriation measure 
 whose passage is essential." 
 
 Furthermore, bills for raising revenue might often 
 be more acceptable to the country at large if subject 
 to executive revision item by item. At least the pos- 
 session of such a power by the President would do 
 away with the unseemly spectacle (witnessed in some 
 former administrations) of bargaining in progress 
 over a tariff or revenue bill between the White House 
 and the Capitol. 
 
 But on the other hand, do we seriously wish to add 
 anything to the transcendent powers already possessed 
 by the President? Leaving wholly aside the special 
 exigencies created by the recent war, and considering 
 only the facts as recorded in the preceding pages of 
 this volume, it is not too much to say that the presi- 
 dency has grown into an office of such predominant 
 
POWER TO LEGISLATION in 
 
 influence and tremendous power as would utterly have 
 appalled the founders of the American democracy, and 
 such as were but dimly within the vision of even the 
 fathers of the present generation. Would it be wise, 
 would it be prudent, in view of all possible eventuali- 
 ties, to withdraw from Congress any remnant of its 
 fast diminishing control of the public interests? 
 
 Counsels of wisdom and prudence in this matter 
 have been expressed by one of our former Presidents, 
 to which it would be well to give heed. 
 
 "While for some purposes it would be useful for the 
 executive to have the power of partial veto, if we could 
 always be sure of its wise and conscientious exercise, I 
 am not entirely sure that it would be a safe provision. 
 It would greatly enlarge the influence of the President, 
 already large enough from patronage and party loyalty, 
 and other causes. I am inclined to think that it is bet- 
 ter to trust to the action of the people in condemning the 
 party which becomes responsible for such riders than to 
 give, in such a powerful instrument like this, a tempta- 
 tion to its sinister use by a President eager for continued 
 political success. This use by Congress of riders upon 
 appropriation bills to force a President to consent to 
 legislation which he disapproves shows a spirit of de- 
 structive factionalism and a lack of a sense of responsi- 
 bility for the maintenance of the government. If such a 
 sense of responsibility does not pervade all branches of 
 the government, executive, legislative, and judicial, the 
 government cannot remain a going concern. Instances of 
 abuse of this sort by Congress, therefore, must be re- 
 garded as exceptional, as indeed they are, and an effort 
 to remedy them by a change in constitutional provision 
 would be legislation intended to pump patriotism into 
 public officers by force. This method will certainly be 
 found futile if such patriotism and sense of responsibil- 
 ity do not exist without it. If it is urged that the Presi- 
 dent should have power to veto items in appropriation 
 
ii2 RELATION OF EXECUTIVE 
 
 bills to restrain legislative extravagance, the answer is 
 that this is not the best way. The proper remedy for 
 that evil is the budget amendment/' 2 
 
 If we examine this question in the light of actual ex- 
 amples drawn from our legislative history, it will be- 
 come apparent that the power of a selective veto would 
 be of no avail to a President who should be opposed 
 by a strong majority in Congress, that it is unneces- 
 sary to a President who has a decisive control over 
 Congress, and that it could possibly be useful only in 
 cases where the executive is in generally harmonious 
 relations with the legislature but does not lead or di- 
 rect it. For an instance of the first category, the army 
 appropriation bill of 1867 contained a rider providing 
 that the President's orders to the army should be given 
 only through the General of the Army, who could not 
 be removed from office without the previous approval 
 of the Senate. This was intended to, and did, virtu- 
 ally depose the President from the exercise of his func- 
 tions as commander in chief. The bill also contained 
 a clause ordering the disbanding of the militia of all 
 the states lately in rebellion. Both these provisions 
 were violently distasteful to Andrew Johnson, then 
 President. But he could not veto them without de- 
 stroying the entire bill. He knew that if he took that 
 course the obnoxious measures would sooner or later 
 be enacted over his veto. But only two days remained 
 of the session. Therefore he returned the bill with 
 his signature, but with a message that he approved it 
 only to save the appropriation and that he "protested*' 
 against the riders. 
 
 2 William H. Taft, "Our Chief Magistrate," p. 27. 
 
POWER TO LEGISLATION 113 
 
 But on the other hand, in the summer of 1918, with- 
 in the space of two weeks, President Wilson vetoed no 
 less than three of the great appropriation bills, in each 
 case because of his objection to some particular item 
 or provision, and yet the appropriations were not lost. 
 This result followed from his powerful influence with 
 Congress. On June 29th, he sent a message to the 
 House refusing his approval of the annual post-office 
 appropriation bill, because he objected to an item in it 
 which made provision for continuing the pneumatic 
 mail-tube system in certain of the large cities. It will 
 be seen that, in order to express his disagreement with 
 this one detail, he was obliged to veto the entire bill, 
 although it was the act which was essential to the con- 
 tinuation of the entire postal service after July ist. 
 But what happened w r as that, after an ineffectual at- 
 tempt to pass the bill over the veto, the committee re- 
 ported a new bill to the House, which was absolutely 
 identical with the former bill except for the omission 
 of the item objected to, and this was passed without 
 debate and without a roll call. And this was done on 
 the very same day on which the veto message was re- 
 ceived, and later in the day the Senate passed the 
 amended bill. Again, on the ist of July, the President 
 vetoed the legislative, executive, and judicial appro- 
 priation bill. The reason was that he objected to the 
 so-called "Borland amendment," which would have 
 required the clerks in the governmental departments 
 to work eight hours a day instead of seven, without 
 an increase of pay. On the same day, the House, by 
 a vote of 246 to 50, refused to override the President's 
 veto, and on the following day, this great appropria- 
 
ii4 RELATION OF EXECUTIVE 
 
 tion bill was passed, with the Borland amendment 
 eliminated. On the I2th of July, the President vetoed 
 the agricultural appropriation bill because of his ob- 
 jection to an item in it which fixed the price of wheat 
 at $2.40 per bushel. On the following day it became 
 apparent that the bill could not be passed over his 
 veto, but further action on it was temporarily post- 
 poned because of the agreement of Congress at that 
 time to take a recess. 
 
 Another view of the subject, but leading to the same 
 conclusion, was presented by the Bureau of Municipal 
 Research in its appraisal of the constitution and gov- 
 ernment of New York, prepared for submission to the 
 constitutional convention of that state in 1915. Speak- 
 ing of the provision allowing the governor to veto 
 separate items in appropriation bills, it was said: 
 
 "Under such circumstances the governor is held re- 
 sponsible for the acceptance or reduction of items as 
 passed in measures for which he is not responsible. The 
 power operates as a check on an irresponsible legislature. 
 It does not cure irresponsibility. It does not supply 
 leadership. It does put into the hands of the governor 
 the power to punish political enemies by using the prun- 
 ing knife where he will, in the plea of economy. The 
 power is not constructive, but may be made highly de- 
 structive. It transfers from the legislative committee 
 room to the executive chamber all the pressure that has 
 been brought to bear in furtherance of the plans of an 
 irresponsible boss. It simply invites another dark-room 
 proceeding, instead of having the business of the state 
 done in the open, in the face of the opposition/' 
 
 If the legislature is still in session when the gover- 
 nor acts on the bill, 
 
 "he may, if he chooses, get a fair statement of a con- 
 sistent fiscal policy before the legislature for discussion 
 
POWER TO LEGISLATION 115 
 
 and action. But usually the legislature has adjourned 
 before the governor has an opportunity to act on many 
 appropriations." 
 
 The Bureau thinks that a much better plan is that 
 of a budget (not merely advisory but compulsory), 
 under which the governor is required to formulate, 
 submit, and defend the appropriation bills, thus 
 
 "securing economy and responsibility in the appropriation 
 and management of public funds/' 
 
 The question of enlarging the veto power should not 
 be considered as an isolated problem. It is but an ele- 
 ment, or a symptom, of that vigorous trend towards 
 executive leadership which is so markedly developing 
 in our political philosophy, and which, in respect to the 
 science of government, many observers believe to be 
 the most significant phenomenon of our times. The 
 new program, as we have seen, involves supplementing 
 the administrative and appointive powers of the ex- 
 ecutive branch by intrusting to it also both initiative 
 and responsibility in the framing of the laws. It is a 
 departure from the old theory that the guardianship 
 of the public welfare was vested in the legislature. 
 The new theory would confide it to the executive. The 
 selective veto is a step in that direction. 
 
VI 
 
 EXECUTIVE ORDERS AND DECREES 
 
 In all strong governments which have recognized 
 the division of powers, thus setting the executive over 
 against the legislative branch, it has been a part of the 
 struggle for supremacy between them that the execu- 
 tive should seek to obtain for itself a more or less ex- 
 tensive power of law-making independent of the legis- 
 lative body ; that is, a power to give to its ordinances, 
 by whatever name they may be called (orders, decrees, 
 regulations, or proclamations) the force of law in the 
 sense that they shall be imperative and that they shall 
 be enforceable by the courts, yet without the concur- 
 rence or previous authorization of the legislature. Al- 
 most everywhere this encroaching tendency has been 
 checked. Almost everywhere constitutional practice 
 has settled the rule that executive ordinances, when of 
 such a character as to affect the general public, are not 
 "laws" in this sense except when made in pursuance of 
 explicit constitutional or statutory authority. Lack- 
 ing this sanction, they may indeed fall within the 
 proper scope of administrative action, but they serve 
 only the purpose of notice, warning, or exhortation, 
 and do not, like "laws" properly so called, restrain the 
 citizen from doing something otherwise lawful, or 
 force him into a course of conduct to which he was not 
 previously compelled. Yet, in the mind of a strong 
 
POWER TO LEGISLATION 117 
 
 and dominant executive officer, determined upon lead- 
 ership, there must always be present the temptation to 
 put a very liberal construction upon such regulation- 
 making powers as are implicated in his constitutionally 
 defined powers and prerogatives, and likewise to push 
 to the limit and perhaps beyond it any authority dele- 
 gated to him by the legislature for filling -in the details 
 of legislation on a given subject or carrying a statute 
 into effect. And given a contest for leadership and 
 control, this weapon in the hands of the executive is 
 neither antiquated nor rusty. It is more powerful now 
 than ever. And a study of its use and possibilities is 
 of especial importance in its relation to the general sub- 
 ject of the growth of executive power, in view of the 
 very marked and increasing tendency of legislative 
 bodies, when dealing with subjects of broad general in- 
 terest, to satisfy themselves with outlining a general 
 plan or prescribing general principles in their statute, 
 leaving the details of their enactments and all that 
 concerns their practical operation to be governed by 
 regulations made by the executive or administrative 
 officers. 
 
 Before attempting a description of the President's 
 existing authority in these matters, or a forecast of its 
 possible future use, it will be well to survey the consti- 
 tutional history and practice of some other countries, 
 in order to see what lessons of experience or warning 
 may be gleaned from them. 
 
 In England, long after the establishment of parlia- 
 mentary government, many kings in succession chafed 
 under the restraints which Parliament imposed upon 
 them, and sought to recover the power of independent 
 
ii8 RELATION OF EXECUTIVE 
 
 legislation claimed to have belonged to their predeces- 
 sors. Not merely that English kings periodically as- 
 serted the right to suspend acts of Parliament, but they 
 coveted the right to go their own way in the making 
 of rules for the governance of the realm alongside of 
 Parliament or without reference to it. They cast en- 
 vious eyes upon the traditionary powers once ascribed 
 to the King in Council, and sought to make ordinances 
 and proclamations emanating from that source what 
 they once had been, a teal and living force. Henry 
 VIII once caught Parliament in a subservient or com- 
 plaisant mood. In 1539, an act was passed providing 
 that 
 
 "the King for the time being, with the advice of his Coun- 
 cil, or the more part of them, may set forth proclama- 
 tions under such penalties and pains as to him and them 
 shall seem necessary, which shall be observed as though 
 they were made by Act of Parliament ; but this shall not 
 be prejudicial to any person's inheritance, offices, liber- 
 ties, goods, chattels, or life ; and whosoever shall willing- 
 ly offend any article in the said proclamations shall pay 
 such forfeitures, or be so long imprisoned, as shall be 
 expressed in the said proclamations ; and if any offending 
 will depart the realm to the intent he will not answer his 
 said offense, he shall be adjudged a traitor." 
 
 But this amazing piece of legislation was repealed in 
 the reign of Edward VI. Dicey remarks : 
 
 "It is curious to notice how revolutionary would have 
 been the results of the statute had it remained in force." 
 One of them would have been that 
 "an English king would have become nearly as despotic 
 as a French monarch/' 1 
 
 The same distinguished author, in his instructive 
 description of the constitution of England, calls at- 
 1 Dicey, "Law of the Constitution," p. 49. 
 
POWER TO LEGISLATION 119 
 
 tention to the distinction between "laws" properly so 
 called, as being made by the legislature, and "ordi- 
 nances" having the force of law though not in strict- 
 ness laws, as being rather decrees of the executive 
 power than acts of the legislature. He says: 
 
 "This distinction exists in one form or another in most 
 continental states and is not without great practical util- 
 ity. In foreign countries, the legislature generally con- 
 fines itself to laying down general principles of legisla- 
 tion, and leaves them, with great advantage to the pub- 
 lic, to be supplemented by decrees or regulations which 
 are the work of the executive. The cumbersomeness and 
 prolixity of English statute law is due in no small meas- 
 ure to futile endeavors of Parliament to work out the de- 
 tails of large legislative changes. The evil has become 
 so apparent that in modern times acts of Parliament con- 
 stantly contain provisions empowering the Privy Council, 
 the judges, or some other body, to make rules under the 
 act for the determination of details which cannot be set- 
 tled by Parliament. But this is only an awkward miti- 
 gation of an acknowledged evil, and the substance no 
 less than the form of the law would, it is probable, be a 
 good deal improved if the executive government of Eng- 
 land could like that of France, by means of decrees, ordi- 
 nances, or proclamations having the force of law, work 
 out the detailed application of the general principles em- 
 bodied in the acts of the legislature." 2 
 
 As a matter of fact both orders in council and proc- 
 lamations enter into the texture of English statute law 
 to a much greater degree than is apparent to those 
 who think of Parliament as the only fount of law. 
 Orders and proclamations differ in their formal style 
 and language, but essentially they both emanate from 
 the privy council and have exactly the same effect as 
 law. An order in council is dated "At the Court at 
 
 2 Dicey, op. cit., p. 49. 
 
120 RELATION OF EXECUTIVE 
 
 Buckingham Palace/' on such a day, "Present, the 
 King's Most Excellent Majesty in Council," and re- 
 cites that "His Majesty is pleased, by and with the ad- 
 vice of his privy council, to order, and it is hereby or- 
 dered, as follows," etc. A royal proclamation is 
 headed : "By the King/' and recites "we have thought 
 fit, by and with the advice of our privy council, to is- 
 sue this our royal proclamation, and we do hereby 
 proclaim, direct, and ordain as follows," etc. There 
 are a few exceptional cases in English law where an 
 order or proclamation may be made without previous 
 legislative sanction, as, for instance, where Parliament 
 is summoned by an executive proclamation. But other- 
 wise it is a firmly settled principle that the sphere of 
 executive legislation must be limited to those details 
 as to which the authority of Parliament has been spe- 
 cifically delegated. I Without such a basis, an order in 
 council would be unconstitutional in the English sense. 
 But the members of an English ministry originate and 
 control all important legislation in the Parliament then 
 sitting. And the ministers constitute the major part, 
 practically the effective part, of the privy council. And 
 both orders and proclamations purport to be made by 
 the privy council. (Of course it is nominally the King 
 who makes the ordinances with the "advice" of the 
 council; but it is also true of acts of Parliament that 
 they profess to be made by the King "with the advice 
 and consent" of the Lords and Commons.) There- 
 fore the enactment of this kind of executive legislation 
 simply means that the ministry have demanded and re- 
 ceived from their adherents (necessarily constituting 
 a majority) in Parliament permission to deal legisla- 
 
POWER TO LEGISLATION 121 
 
 tively either with a subject in general or with the de- 
 tails of a subject the outlines of which have been 
 sketched in an act. 
 
 As stated above, those who have not studied the sub- 
 ject might well be surprised to learn the extent to 
 which this power is actually employed. An English 
 writer has recently said: "The extent to which we 
 are governed at present by orders which hardly come 
 within the direct cognizance of the legislature is much 
 wider than most people are aware of." The President 
 of Harvard, in his notable book on the British govern- 
 ment, observes: 
 
 "Power to make ordinances which have the force of 
 law and are binding upon the w j hole community is fre- 
 quently given to the Crown (or more strictly to the 
 Crown in council) by statute, notably in matters affect- 
 ing public health, education, etc., and the practice is con- 
 stantly becoming more and more extensive, until at pres- 
 ent the rules made in pursuance of such powers known 
 as 'statutory orders' are published every year in a vol- 
 ume similar in form to that containing the statutes. 
 Some of these orders must be submitted to Parliament, 
 but go into effect unless within a certain time an address 
 to the contrary is passed by one of the houses, while 
 others take effect at once, or after a fixed period, and are 
 laid upon the tables of the houses in order to give formal 
 notice of their adoption. In making such orders the 
 Crown acts by virtue of a purely delegated authority, and 
 stands in the same position as a town council. The or- 
 ders are a species of subordinate legislation, and can be 
 enacted only in strict conformity with the statutes by 
 Which the power is granted ; and being delegated, not in- 
 herent in the Crown, a power of this kind does not fall 
 within the prerogative in its narrower and more appro- 
 priate sense." 3 
 
 3 Lowell, "The Government of England," Vol. I, p. 20. 
 
122 RELATION OF EXECUTIVE 
 
 The passage quoted describes an interesting detail in 
 the working of government in England, as applied to 
 the ordinary needs and problems of government aris- 
 ing in times of peace. But when a country enters upon 
 a state of war, not only are those needs and problems 
 vastly changed, but there arises at once the necessity 
 and the concurrent impulse to concentrate power and 
 authority in that branch of the government which 
 wields the sword. In such a crisis, therefore, it al- 
 ways happens that executive orders, decrees, and proc- 
 lamations play a highly important part in the internal 
 regulation of the country and even in its international 
 affairs, and that there is neither time nor disposition 
 to scrutinize closely the basis of legislative authoriza- 
 tion on which they profess to rest. 
 
 The very words "order in council" should recall a 
 stirring episode of American history to the minds of 
 even American school children. For it was the British 
 orders in council of November n, 1807, that inaugu- 
 rated England's campaign of seizing and searching 
 neutral vessels for enemy's goods. These were coun- 
 tered by Napoleon's executive orders, the Berlin and 
 Milan decrees of the same year. The result was the 
 loss of hundreds of American ships and the almost 
 total destruction of American commerce, which led 
 to the embargo and non-intercourse acts, and eventu- 
 ally (at least as a chief contributing factor) to the 
 war of 1812. 
 
 But nothing in the previous history of constitutional 
 government in the world is at all comparable to what 
 has been done by executive legislation in England 
 since the beginning of the Great War in 1914. Limi- 
 
POWER TO LEGISLATION 123 
 
 tations of space forbid us to follow this subject into 
 all its ramifications. But it is believed that a bare out- 
 line of the principal facts cannot fail to be impressive. 
 On the 27th of November, 1914, Parliament passed the 
 "Defense of the Realm Consolidation Act" (5 Geo. 
 V, c. 8). This simply provided that 
 
 "his majesty in council has power during the continuance 
 of the present war to issue regulations for securing the 
 public safety and the defense of the realm." 
 
 It would be difficult to imagine how more unlimited 
 powers of law-making could be granted to the council, 
 that is, the Prime Minister and his associates, than by 
 this statute. It has been said : 
 
 "The provisions of this act practically place the whole 
 country under martial law, but it is to be noted that the 
 restrictions on the liberty of the subject and on the free- 
 dom of the expression of opinion are only to continue 
 during the present war." 
 
 In pursuance of this act, and on the very day fol- 
 lowing its enactment, a set of "Defense of the Realm 
 Regulations" were made and put in force by an order 
 in council. These regulations contain sixty-three arti- 
 cles or sections, and make elaborate and detailed pro- 
 visions for putting the country on a war basis, for 
 requisitioning or employing its manufacturing and in- 
 dustrial resources, for its external defense, for pre- 
 venting the giving of aid or information to the enemy, 
 against sedition, against espionage and sabotage, mak- 
 ing new regulations of navigation, and making viola- 
 tions of the regulations criminal offenses, and provid- 
 ing for their trial before a court martial or a court of 
 summary jurisdiction. And subsequent regulations, 
 made under the same authority, have carried the whole 
 
124 RELATION OF EXECUTIVE 
 
 matter into much greater detail, and have brought in 
 various new subjects, such as the important matter of 
 food conservation. \ Parliament of course remained in 
 session and continued to play its important role in the 
 government of the country and the prosecution of the 
 war. Though it had delegated immense authority, it 
 did not abdicate. But under its express or tacit au- 
 thority executive legislation on matters of vital inter- 
 est continued. The list of articles to be deemed con- 
 traband of war and to be treated as such was set forth 
 in an executive proclamation, as were also the pro- 
 visions against trading with the enemy. And the pro- 
 vision for adopting and putting in force as law the 
 so-called "Declaration of London," affecting neutral 
 ships and trade, was made by an order in council. 
 
 Canada had a somewhat similar experience in 1917 
 and 1918. In consequence of the necessity of a gen- 
 eral election, there was an intermission of six months 
 between the dissolution of one Parliament and the as- 
 sembling of the next, and during all this time the 
 government was carried on, not only as to administra- 
 tion, but as to the making of all laws considered neces- 
 sary in view of the conditions created by the war, en- 
 tirely by the ministry, without specific parliamentary 
 authorization, by means of orders in council. Such 
 orders, so made, are described by a writer on the sub- 
 ject as "a comprehensive, flexible, speedy, and decisive 
 instrument, particularly well adapted to the exigencies 
 of war-time." In the Canadian use of the term an 
 "order in council" purports to be made by the Gover- 
 nor General in (or by the advice of) the council. 
 Technically it cannot become effective without his 
 
POWER TO LEGISLATION 125 
 
 signature. But just as the acts of the British Parlia- 
 ment speak in the voice of the sovereign and must 
 receive the royal assent, though the King's power of 
 veto has not been exercised since the time of Queen 
 Anne, so the consent and signature of the Governor 
 General of Canada to an order in council is only for- 
 mal, and cases must be rare indeed in which they 
 would be refused. Actually such an order is a law 
 or decree based upon, and drawn in accordance with, 
 a decision of the cabinet and signed by the President 
 of Council or the Prime Minister or a representative 
 of either. The work of the council, performed in such 
 an intermission, is of course subject to be overridden 
 and abrogated by an act of Parliament. But so could 
 any act of any previous Parliament be swept away. It 
 would be a mistake, therefore, to regard these orders 
 in council as in any sense provisional or tentative, 
 since they do not require to be confirmed by act of 
 Parliament, and since they could be abolished only in 
 the same manner and by the same power required for 
 the repeal of a statute. And it must be remembered 
 that the ministry can remain in power only so long 
 as they can command a majority in the House of Com- 
 mons, so that it is easily conceivable that the attempt 
 to repeal an order in council, if it affected a matter of 
 high moment, might precipitate a cabinet crisis or even 
 lead to a dissolution. 
 
 Without attempting an exhaustive enumeration of 
 all the details covered by the Canadian orders in coun- 
 cil during the period mentioned, from September, 
 1917, to March, 1918, to mention some of the most im- 
 portant steps taken will illustrate the wide range and 
 
126 RELATION OF EXECUTIVE 
 
 extraordinary flexibility of this instrument of govern- 
 ment. First, the ministry provided in this way for the 
 working out and enforcement of the military con- 
 scription act. Then orders in council created two new 
 departments of the government with responsible min- 
 isters at their head, the Department of Immigration 
 and Colonization and the Department of Soldiers' 
 Civil Re-establishment. By the same agency there 
 came into being two important sub-committees of the 
 cabinet, the War Committee and the Reconstruction 
 Committee. Orders in council provided for a compre- 
 hensive program of shipbuilding, for the establishment 
 of a bureau or committee of public information, for 
 the creation of a war trade board, for the reform of 
 the civil service and the abolition of patronage, for 
 a system of general registration designed to make ef- 
 fective for mobilization the resources and the man 
 power of the country, and for the superseding of the 
 Food Controller by the Canadian Food Board of three 
 men. These orders in council also included very strin- 
 gent regulations controlling the manufacture, importa- 
 tion, and transportation of intoxicating liquors, and 
 regulations governing the packing industry, which in 
 effect limited the permissible profits of houses engaged 
 in that business to a maximum of eleven per cent on 
 the capital invested. In all this it is said that the gov- 
 ernment were mindful of the wishes and preferences 
 of the people and did not lack the support of public 
 opinion. It was an experiment to have the laws of a 
 country, and laws of transcendent importance, made 
 by a small group of citizens who, at the time, were not 
 acting as legislators at all, but solely as executive offi- 
 
POWER TO LEGISLATION 127 
 
 cers, and during a period of time which, considering 
 the tremendous pressure of war, might be considered 
 as equivalent to a generation of peace. Yet the claim 
 is made that the cause of democracy has not thereby 
 suffered, but that, on the contrary, this radically un- 
 democratic procedure has demonstrated the funda- 
 mentally democratic character of the Canadian sys- 
 tem of government. 
 
 That legislation may be effected by means of ex- 
 ecutive orders or decrees, during the interval between 
 sittings of the legislative body, is a doctrine entirely 
 unknown in the United States, where, on the other 
 hand, it is the practice to call a special session of Con- 
 gress when legislation is needed to meet an emergency. 
 But traces of the doctrine are found in the constitu- 
 tional systems of some European countries, as, for ex- 
 ample, in Denmark, where the 25th article of the Con- 
 stitution of 1866 provides that 
 
 "in cases of special urgency the King may, when the 
 Rigsdag is not in session, issue laws of temporary ap- 
 plication, which, however, shall not be contrary to the 
 constitution and which shall be submitted to the Rigsdag 
 at its next session/' 
 
 The other principle that it is within the scope of ex- 
 ecutive authority to make ordinances supplementing 
 the statutes or providing for their effective execution 
 is a familiar and probably useful feature of the con- 
 stitutional practice of the continental nations. As to 
 France, for instance, a work written by the present 
 President of the Republic states that 
 
 "in order to supervise and insure the execution of the 
 laws, the President issues general decrees, sometimes 
 prepared by the services affected, sometimes further elab- 
 
128 RELATION OF EXECUTIVE 
 
 orated by the Council of State, and always countersigned 
 by the Ministers. These are known as by-laws of public 
 administration. They may complete the law as to points 
 indicated by the legislator, but they cannot modify it." 4 
 
 Executive decrees have come to play a very impor- 
 tant part in the government of the countries of Cen- 
 tral and South America. The constitutions of most 
 of those states give to their presidents the power to 
 make such ordinances and regulations as they may 
 deem necessary to facilitate and insure the execution 
 of the laws, though in Venezuela this may be done 
 only "when a law so requires or authorizes in its text." 
 In five countries (the Argentine, Honduras, Nicaragua, 
 Paraguay, and Venezuela) the constitutions have been 
 very careful to limit this presidential power by pro- 
 viding that executive ordinances or regulations must 
 not in any way "alter the spirit or reason of the law." 
 In Bolivia, the President may issue 
 
 "decrees and orders necessary for the execution of the 
 laws, but without any private (or personal) definition of 
 rights or alteration of those defined by the law, and with- 
 out contravening its dispositions." 
 
 In Haiti and Ecuador, the chief executive 
 
 "is to make all regulations and decrees necessary for the 
 purpose of executing the laws, but without power ever to 
 suspend or interpret the laws, acts, and decrees them- 
 selves nor to dispense with their execution." 
 
 The most detailed provision is found in the Constitu- 
 tion of Cuba (article 68) as follows: 
 
 "The President has power to approve and promulgate 
 the laws, and to execute them and cause them to be exe- 
 cuted; to prescribe when Congress shall not have done 
 so, regulations for the better execution of the laws, and 
 further, to issue decrees and orders which he may deem 
 
 * Raymond Poincare, "How France is Governed," p. 174. 
 
POWER TO LEGISLATION 129 
 
 necessary to that end and so far as pertains to the gov- 
 ernment and administration of the state, but without 
 contravening, in any case, what is established by the said 
 laws." 
 
 A complete catalogue of executive ordinances made 
 under these constitutional provisions would be tedious 
 and not specially edifying. But for the purpose of 
 showing how far and in what varied directions gov- 
 ernment by executive decree can be carried in Latin 
 America, here follows a list selected almost at random 
 from among the matters regulated by such decrees in 
 those countries within a period of not more than six 
 months. It will be observed that some of them reflect 
 extraordinary conditions created by the war, but others 
 have no such foundation. 
 
 In Argentina, Bolivia, and Mexico executive de- 
 crees have regulated the importation and coinage of 
 gold and prohibited its exportation. 
 
 An executive decree in Colombia authorizes the 
 government to contract a loan not to exceed $3,000,- 
 ooo gold. 
 
 By an executive decree in Guatemala, exemption 
 from active military service and training is obtainable 
 upon the payment of 100 pesos, gold, annually. 
 
 Executive order No. 117 in the Dominican Republic 
 authorizes the establishment of a food controller to 
 regulate the exportation of food stuffs, control the im- 
 portation of the same, fix their price for sale or ex- 
 change, regulate their distribution, and 
 
 "do such other things concerning food stuffs as may be 
 considered expedient for the public welfare." 
 
 An executive decree in Ecuador provides that the 
 
130 RELATION OF EXECUTIVE 
 
 budget of receipts and expenditures of the department 
 of war shall be the same as that of 1917. 
 
 In Haiti, a presidential decree annuls the laws under 
 which the government granted concessions for the con- 
 struction and operation of a railway from Port au 
 Prince to Petion-Ville. 
 
 An executive decree in Brazil authorizes the Minister 
 of Agriculture to establish agricultural stations for the 
 education of poor children. 
 
 In the same state a similar decree was made 
 
 "to encourage the raising of sheep and goats by co- 
 operating with the state and municipal governments in 
 importing sheep and goats for breeding purposes, the 
 federal government to pay one-third of the cost." 
 
 In Chile, an executive decree authorizes the munici- 
 pality of Antofagasta to contract a loan of $8,500,000, 
 the proceeds to be used in the construction of port 
 works in that city. 
 
 In Colombia, there was an executive decree requir- 
 ing the reorganization of the national police, and pro- 
 viding funds for the repatriation of Colombian citi- 
 zens entitled by law to return to the country; and an- 
 other to regulate the teaching and practice of dentistry. 
 
 In Panama, an executive decree has been issued re- 
 ducing by fifty per cent the import duties on lard. 
 
 An executive decree of Brazil empowers Brazilian 
 insurance companies to reinsure in domestic insurance 
 companies and in foreign insurance companies of coun- 
 tries not at war with Brazil. 
 
 In Costa Rica, it has been provided by executive de- 
 cree that anyone desiring to leave the country must 
 obtain a passport fifteen days beforehand. 
 
 Haiti thought it necessary to declare by executive 
 
POWER TO LEGISLATION 131 
 
 decree that all persons have the right to engage in the 
 purchase and sale of all kinds of national products in 
 the towns and cantons of the Republic. 
 
 In Panama, an executive decree forbids the impor- 
 tation of cattle unless accompanied by certificates 
 viseed by consuls of Panama as to their being healthy. 
 
 An executive decree in Ecuador provides for the 
 construction in the municipality of Guayaquil of a na- 
 tional macadamized highway with funds obtained from 
 the tax on automobiles and carriages. 
 
 From Mexico we learn that 
 
 "the governor of the State of Sonora has prohibited the 
 sale of intoxicating liquors in that state under severe 
 penalties, and has ordered that all alcoholic beverages in 
 the state shall be collected and destroyed/' 
 
 In the United States, under the constitutional theory 
 and practice which have prevailed up to the present 
 time, not one of the laws (for they really are laws) 
 mentioned above would have been enacted by any ex- 
 ecutive officer on his own initiative and authority. 
 Each of the matters involved would have been made 
 the subject of statutory legislation, either by Congress 
 or by a state legislature as the case might be. But if 
 the unhindered exercise by the executive of an ill-de- 
 fined power to make laws tends in the direction of 
 autocracy, that phrase does not measure the whole ex- 
 tent of the danger. For if the limitations marked out 
 by a written constitution may with impunity be over- 
 stepped in this direction, why not in any or all ? What 
 this leads to is shown in a press despatch from Pana- 
 ma, dated June 22, 1918, which was carried in the 
 principal American newspapers. It stated: 
 
132 RELATION OF EXECUTIVE 
 
 "President Urriola has issued a decree deferring for 
 six months the elections which were set for July. The 
 reason given for this action is that it will permit the 
 Panama government to correct conditions in the cities of 
 Colon and Panama and put into operation regulations re- 
 quested by the American military authorities. A protest 
 against the suspension of the elections has been made to 
 Washington by the opposition political party, on the 
 ground that the President's action is unconstitutional. 
 The United States is asked to uphold the Panama con- 
 stitution in accordance with the treaty/' 
 
 In the United States, acts cf legislation by the exe- 
 cutive power have always hitherto found their justifi- 
 cation in the explicit provisions either of the Constitu- 
 tion or of an Act of Congress. It has been remarked 
 by an authoritative writer on the American system 
 of government: 
 
 "The President possesses a large ordinance power 
 that is, authority to supplement statutes by rules and 
 regulations covering matters of detail sometimes of very 
 great importance. Among other things, he makes rules 
 for the army and navy, the patent office, the customs, in- 
 ternal revenue, consular, and civil services. Sometimes 
 he issues these rules in accordance with provisions of the 
 statutes, and sometimes under his general executive 
 power. Many of the army regulations he promulgates 
 as commander in chief. When he makes rules for the 
 civil service, he acts under specific provisions of the civil 
 service law. Thus, under his power to remove, to see to 
 the faithful execution of the laws, and to issue ordi- 
 nances, the President enjoys an administrative authority 
 of no mean dimensions." 5 
 
 While this is undoubtedly correct, still, as to mat- 
 ters of general public concern, not specifically affecting 
 a branch or department of the government service, the 
 
 8 Charles A. Beard, "American Government and Polities'" p. 
 188. 
 
POWER TO LEGISLATION 133 
 
 rule still prevails that the President's regulations and 
 orders must be made in pursuance of authority pre- 
 viously given, if they are to have the constraining force 
 of law and be so recognized by the courts. 
 
 It is customary that the determinations of the ex- 
 ecutive in the field here indicated, that is, in relation 
 to matters of general public concern, not restricted to 
 the military establishment or the administrative bu- 
 reaus, but of such a character that they may impinge 
 upon the rights or liberties of the citizens, should be 
 set forth in the form of presidential proclamations. 
 These may be conveniently divided into three classes. 
 First, there are proclamations intended to give notice, 
 information, or warning to all persons who may be 
 concerned, announcing some statute or treaty or some 
 public act or determination, or intended action of the 
 executive department, which otherwise might not be 
 so quickly or so widely promulgated. For instance, it 
 is usual in this manner to announce the admission of 
 a new state into the Union, the ratification of a treaty 
 with a foreign power when it contains provisions which 
 may affect the dealings of private persons, the inten- 
 tion of the United States to maintain a position of 
 neutrality between contending nations, or the intention 
 of the government to enforce the neutrality laws with 
 strictness. In this category also we should include 
 President Wilson's proclamation of December 26, 
 1917, announcing that he thereby took possession and 
 assumed control of the transportation systems of the 
 country. 
 
 How important this function of notification may be- 
 come is shown in the case of the executive proclama- 
 
134 RELATION OF EXECUTIVE 
 
 tion of the selective draft act of 1917. The statute was 
 assailed in the courts on the ground that it unlawfully 
 delegated legislative powers to the President. But 
 Judge Evans, of the Circuit Court of Appeals for the 
 Sixth Circuit disposed of this argument in the follow- 
 ing words : 
 
 "A careful study of the proclamation of the President 
 now in question will show that, while the future making 
 of regulations in the premises was foreshadowed, none 
 were made, nor intended to be made, by or through that 
 document. Its manifest purpose was to give the people 
 of the United States wide, accurate, and official infor- 
 mation of the enactment of the statutory provision now 
 before us, and which is set out in full therein. The act 
 required a proclamation for the purpose of giving that 
 character of notice to all who might be subject to the 
 draft provisions, and who were thus notified to present 
 themselves at the proper places of registration. It was 
 not intended that the proclamation should itself be law, 
 but that it should give notice of the provisions of a most 
 important statute which Congress had just enacted, and 
 which required prompt enforcement. It is sufficient, 
 therefore, to say that its purpose was not to add to the 
 law, nor to make regulations, but to give to the public 
 the most prompt and the widest possible notice of certain 
 provisions of a new law." 6 
 
 Generally, proclamations of this class need not be 
 authorized or required by the Constitution or the sta- 
 tutes. In some cases they are issued in accordance with 
 long-established precedents, as in the instance of neu- 
 trality proclamations. But for the most part they are 
 the spontaneous acts of the President, and it rests in 
 his discretion alone to determine the occasions on which 
 they shall be issued and the subjects to which they 
 shall relate. But it is to be noted that they add noth- 
 
 6 Sugar vs. United States, 252 Federal Reporter, 74. 
 
POWER TO LEGISLATION 135 
 
 ing to the existing body of law. They notify or warn, 
 but impose~"noTega!iy enforceable command. For this 
 reason we may also place in this group proclamations 
 which are merely advisory or hortatory, such as those 
 annually appointing a day of public thanksgiving. 
 
 The second class of presidential orders and procla- 
 mations will include those specifically authorized by 
 acts of Congress. These have the force of law, but 
 their legally compulsory effect is not derived from the 
 will of the President but from the authority granted 
 by Congress. They generally contain provisions for 
 the practical execution of the statutes, or they are con- 
 cerned with the filling in of details as to which the 
 legislature has delegated its authority, or they are 
 prompted by the occurrence of some event upon which 
 Congress has conditioned the taking effect of a statute, 
 or perhaps its suspension. An example may be seen 
 in the provisions of certain of the tariff acts giving the 
 President power to enforce or suspend the law with 
 reference to the products of certain foreign countries, 
 on ascertaining that reciprocal trade concessions are 
 given or withheld, as the case may be. For another 
 illustration we may recall the provision in the income 
 tax acts that the returns made by taxpayers 
 
 "shall be open to inspection only upon the order of the 
 President, under rules and regulations to be prescribed 
 by the Secretary of the Treasury and approved by the 
 President." 
 
 Under this authorization, a set of regulations govern- 
 ing the conditions under which such returns might be 
 treated as public records and be inspected by interested 
 persons was drawn by the Secretary, approved by the 
 
136 RELATION OF EXECUTIVE 
 
 President, and promulgated by the latter, over his sig- 
 nature, and under the title of an "Executive Order." 
 Again, numerous rules and proclamations, all based on 
 similar authorization, are made with reference to the 
 public lands, their sale or other disposition, the open- 
 ing and demarcation of forest reserves and national 
 parks, and similar matters; to the extension or gov- 
 ernment of the classified civil service; and to a very 
 considerable variety of other subjects which it is not 
 necessary here to catalogue. But it may be remarked 
 in passing that those who have not given special study 
 to the subject have but little idea of the frequency and 
 the bulk of these presidential proclamations or the im- 
 portant part they play in the actual conduct of the 
 public business. It may be of interest to note that, for 
 a period covering four congresses, from 1909 to 1917, 
 the presidential proclamations occupied the respectable 
 total of 592 of the large pages used in printing the 
 Statutes at Large. In this division also must be in- 
 cluded the orders and proclamations issued from the 
 White House since the United States entered upon the 
 Great War and relating to the effective conduct of it, 
 though their vast importance requires their separate 
 consideration on a later page. 
 
 The third class of executive ordinances is that which 
 contains matter of the greatest interest for students of 
 government and constitutional practice. It includes 
 those which are put forth on the President's own ini- 
 tiative, which have the constraining force of law, and 
 which are not based upon any direction or permission 
 of Congress, but either upon an explicit provision of 
 the Constitution or upon an implication drawn from 
 
POWER TO LEGISLATION 137 
 
 its enumeration of the President's powers and duties. 
 When, for example, he issues his call for an extra or 
 special session of Congress, his warrant is in the pro- 
 vision of the Constitution that 
 
 "he may on extraordinary occasions convene both houses 
 or either of them, and in case of disagreement between 
 them with respect to the time of adjournment, he may 
 adjourn them to such time as he shall think proper." 
 
 A proclamation of general pardon or amnesty (such 
 as followed upon the decision of the Supreme Court 
 that the courts of the United States had no power to 
 grant a suspension of the sentence imposed upon a 
 convicted criminal during his good behavior) is clearly 
 referable to the President's independent and constitu- 
 tional authority to "grant reprieves and pardons for 
 offenses against the United States." It is not neces- 
 sary to enlarge upon his powers as commander in chief. 
 But after this we enter upon a debatable ground, where 
 constitutional authority for a presidential ordinance 
 which is entirely independent of any concurrence on 
 the part of Congress, and which shall yet have the 
 force of law, is not very easily discernible, unless it 
 can be drawn from the broad but indefinite provision 
 that the President "shall take care that the laws be 
 faithfully executed." 
 
 President Lincoln's emancipation proclamation of 
 January i, 1863, was stated to be made 
 
 "by virtue of the power in me vested as commander in 
 chief of the army and navy of the United States, in time 
 of actual armed rebellion against the authority and gov- 
 ernment of the United States, and as a fit and necessary 
 war measure for suppressing said rebellion." 
 
 But on the other hand, his proclamation declaring a 
 
I 3 8 RELATION OF EXECUTIVE 
 
 blockade of the southern ports (April 19, 1861) was 
 issued after he had called a special session of Con- 
 gress, and was stated to be founded on the necessity of 
 preserving the public peace, suppressing unlawful acts 
 of insurrection, and protecting the lives and property 
 of law-abiding citizens "until Congress shall have as- 
 sembled and deliberated on said unlawful proceedings 
 or until the same shall have ceased/' It must be re- 
 membered that this action was taken in the very early 
 stages of the war. The inference to be drawn from 
 the language of the proclamation is that Lincoln's con- 
 sciousness was not yet fully aroused to the vast mag- 
 nitude of his powers as commander in chief; that he 
 was still looking to the legislative branch of the gov- 
 ernment either to deal decisively with the situation by 
 laws or to clothe him definitely with authority which 
 he was not confident of possessing; that he felt his ac- 
 tion to be provisional, if not temporary; but that he 
 saw clearly that the crisis demanded his vigorous in- 
 tervention as chief magistrate of the nation, since a 
 duty to "take care that the laws be faithfully executed" 
 certainly connotes an obligation to see that they are not 
 defied and annulled. But after three anxious and mo- 
 mentous years Lincoln's point of view had changed. 
 It would almost appear that, by that time, he had 
 come to regard his military powers as adequate not 
 only to the ordering of all such steps as were necessary 
 to the prosecution of the war or conducive to its suc- 
 cessful issue, but also to the adjustment of situations 
 not directly involved in the war, but which the war had 
 brought about; and, as a corollary to this, that any 
 pronouncement of Congress on such matters was but 
 
POWER TO LEGISLATION 139 
 
 little more than advisory. For on July 8, 1864, he 
 issued a proclamation relating to the reconstruction of 
 the governments of the southern states, in which he 
 put into force the main provisions of a bill which had 
 been passed by Congress on the same subject, but to 
 which he had applied the "pocket veto" because there 
 were some features of it to which he could not agree. 
 
 His successor, Andrew Johnson, notwithstanding 
 his long and stubborn fight with Congress, or perhaps 
 because of the position in which it placed him, was 
 meticulously careful that such action as he took on his 
 own initiative should bear the warrant of constitu- 
 tional authority at least upon its face. His proclama- 
 tions opening most of the southern ports to commerce, 
 granting general amnesty and pardons, and restoring 
 the operation of the writ of habeas corpus were prima 
 facie supported by the powers clearly granted to the 
 President. But the proclamations which he issued in 
 1865, appointing provisional governors for the states 
 lately in insurrection, as a part of his reconstruction 
 program, were explicitly based on the provision of the 
 Constitution that the United States shall guarantee to 
 every state in the Union a republican form of govern- 
 ment, and on the fact that the President is made by 
 the Constitution the commander in chief 
 
 "as well as chief civil executive officer of the United 
 States, and is bound by solemn oath faithfully to execute 
 the office of President of the United States, and to take 
 care that the laws be faithfully executed." . 
 
 President Roosevelt, as has been earlier stated, had 
 a conviction that the constitutional provision that "the 
 executive power shall be vested in a President of the 
 
140 RELATION OF EXECUTIVE 
 
 United States of America" vested an undefined resi- 
 duum of power in the chief magistrate, limited, it is 
 true, by the Constitution and the laws of Congress in 
 certain particulars, but, where not so limited, to be ex- 
 ercised by him in his discretion as a sort of general 
 trustee for the welfare of the public. Naturally, there- 
 fore, he found presidential proclamations and execu- 
 tive orders a convenient means of carrying out some 
 of his policies without asking Congress for specific 
 authority. Thus, he tells us : 
 
 "In a number of instances the legality of executive acts 
 of my administration was brought before the courts. 
 They were uniformly sustained. For example, prior to 
 1907, statutes relating to the disposition of coal lands 
 had been construed as fixing the flat price at $10 to $20 
 per acre. The result was that valuable coal lands were 
 sold for wholly inadequate prices, chiefly to big corpora- 
 tions. By executive order the coal lands were withdrawn 
 and not opened for entry until proper classification was 
 placed thereon by government agents. There was a great 
 clamor that I was usurping legislative power; but the 
 acts were not assailed in court until we brought suits to 
 set aside entries made by persons and associations to ob- 
 tain larger areas than the statutes authorized. This po- 
 sition was opposed on the ground that the restrictions im- 
 posed were illegal; that the executive orders were il- 
 legal. The Supreme Court sustained the government." 7 
 
 Since the fateful sixth of April, 1917, executive or- 
 ders, proclamations, and regulations have played a 
 part in the government of our people and in the con- 
 duct of their daily lives absolutely without a parallel in 
 our previous history. They have closely and inti- 
 mately touched the lives, the liberty, the property, the 
 food, clothing, comfort, habits, and business of all the 
 
 7 Theodore Roosevelt, "Autobiography," p. 376. 
 
* 
 
 POWER TO LEGISLATION 141 
 
 citizens of the United States, to say nothing of the 
 millions of aliens within our gates. Such is the in- 
 evitable necessity of war. The phenomenon is one to 
 be accepted ungrudgingly by the loyal citizen. To the 
 student of government it presents a problem in con- 
 stitutional law and practice. These orders and regu- 
 lations have been issued either directly by the Presi- 
 dent or by subordinate officers to whom he has dele- 
 gated the necessary authority in the premises. In 
 each instance, the form and substance of the rules (if 
 not always the manner of their execution) have been , 
 rested upon the firm foundation of the law of the land, 
 as distinguished from anything like the mere will or 
 command of the executive. That is, the President's 
 orders and proclamations have been distinctly author- 
 ized either by the Constitution itself, by acts of Con- 
 gress previously existing, or by new laws made to meet 
 the occasion. But having said this much, one cannot 
 fail further to remark upon the radical difference be- 
 tween the manner in which the authority was granted 
 in the United States and the method pursued in Eng- 
 land. There, as already pointed out, the "Defense of 
 the Realm Consolidation Act" (1914) granted to the 
 council (or cabinet) practically unlimited power "to 
 issue regulations for securing the public safety and the 
 defense of the realm" ; and this was done in one brief 
 sentence, without specification of details, and without 
 limitation of time except as found in the words "dur- 
 ing the continuance of the present war." It was a 
 placing of the entire authority of Parliament in com- 
 mission, a blanket mortgage upon the government of 
 the country. In the United States, on the other hand, 
 
143 RELATION OF EXECUTIVE 
 
 the situation has been dealt with in a manner which is 
 perhaps illustrative of the entire difference between 
 the "cabinet" or "ministerial" system of government 
 and the "presidential" system. For in America each 
 separate or successive exigency growing out of the war 
 or involved in its prosecution has been made the sub- 
 ject of a separate act of Congress. It is true that 
 some of these statutes have granted exceedingly broad 
 powers to the President, and some have left an in- 
 finity of details to his unqualified discretion. Bjjt-in 
 each instance it is the formal enactment of the legis- 
 lative body from which those powers are derived and 
 by which the exercise of that discretion is justified. 
 It is true also that most of the program of war meas- 
 ures was dictated by the President, in the sense that 
 Congress looked to him for guidance and stood ready 
 to grant, and did successively grant, whatever powers 
 he asked for, upon his representing the necessity either 
 by message or in a personal address. But instead of 
 the President demanding, or Congress conceding at 
 one stroke, an unbounded power to govern the country 
 and make its laws by executive decree during the war, 
 it was the understanding and practice of both branches 
 of the government that the regulatory power of the 
 chief magistrate should be defined and advanced step 
 by step, so that there might be specific warrant of law 
 for his dealing with each separate subject. 
 
 This was so from the initial scene. It is the consti- 
 tutional prerogative of Congress to declare war, and 
 of the President to conduct it. It was from Congress 
 therefore that the declaration proceeded of a state of 
 war between the United States and Germany, April 6, 
 
POWER TO LEGISLATION 143 
 
 1917, and between the United States and Austria, De- 
 cember 7, 1917. And in each case the joint resolution 
 declaring war contained a provision that 
 
 "the President be, and he is hereby, authorized and di- 
 rected to employ the entire naval and military forces of 
 the United States and the resources of the government to 
 carry on war against" 
 
 the enemy. But it is precisely at this point that the di- 
 vergence began between the English method of grant- 
 ing war powers to the executive and that followed in 
 the United States. For the resolution, as it was origi- 
 nally proposed in the Senate, authorized and directed 
 the President 
 
 "to take immediate steps not only to put the country into 
 a thorough state of defense, but also to exert all its 
 power and employ all of its resources to carry on war 
 against the Imperial German Government and to bring 
 the conflict to a successful termination." 
 
 But the committee to which the resolution was referred 
 evidently felt that the concession of a power so limit- 
 less and complete, a power to wield all the power and 
 command all the resources of the nation, meant noth- 
 ing less than the virtual abdication of the Congress 
 and its effective exclusion from all co-operation in de- 
 termining upon the necessity and expedience of such 
 measures as might be proposed. The committee struck 
 out the words quoted and substituted an authorization 
 and direction to the President to "employ the entire 
 naval and military forces of the United States and the 
 resources of the government" to carry on the war. 
 The change of language is most significant. The com- 
 mittee's amendment does not appear to have been de- 
 bated in the Senate. The resolution was passed as re- 
 
144 RELATION OF EXECUTIVE 
 
 ported, and was sent in that form to the House and 
 there concurred in. 
 
 The President's first war proclamation, issued on the 
 very day of the declaration of war, related to the con- 
 duct of alien enemies found within the United States 
 and the various restraints necessary to be imposed upon 
 their freedom of action and the places where they 
 might reside. This proclamation established regula- 
 tions which were absolutely compulsory and which 
 would be backed, wherever necessary, by the entire 
 force of the country. Here undoubtedly the Presi- 
 dent made laws; but he acted under an explicit dele- 
 gation of authority. For an act of Congress dating 
 back to 1798, and now contained in sections 4067 to 
 4070 of the Revised Statutes, provides that when the 
 United States is at war and the President makes pub- 
 lic proclamation of the fact, he is authorized 
 
 "by his proclamation or other public act, to direct the 
 conduct to be observed on the part of the United States 
 towards the aliens who become so liable, the manner and 
 degree of the restraint to which they shall be subject, and 
 in what cases, and upon what security their residence 
 shall be permitted, and to provide for the removal of 
 those who, not being permitted to reside within the United 
 States, refuse or neglect to depart therefrom, and to 
 establish any other regulations which are found necessary 
 in the premises and for the public safety." 
 
 And the President's alien-enemy proclamation express- 
 ly stated that he acted "under and by virtue of the 
 authority vested in me by the Constitution of the 
 United States and the said sections of the Revised 
 Statutes." 
 
 It will be unnecessary to scrutinize each of the im- 
 
POWER TO LEGISLATION 145 
 
 portant presidential proclamations bearing on the war. 
 But a survey of the chief acts of Congress having to 
 do with the matter will disclose a steady and deter- 
 mined purpose to grant to the executive every needful 
 or expedient power, but to grant each successive in- 
 stalment of authority in unmistakable terms, so that 
 there might never be doubt of the legal sanction of the 
 President's decrees or regulations. The orders for 
 the seizing of ships in American ports owned by Ger- 
 mans were based upon a joint resolution of Congress 
 
 "authorizing the President to take over for the United 
 States the possession and title of any vessel within its 
 jurisdiction, which at the time of coming therein was 
 owned in whole or in part by any corporation, citizen, or 
 subject of any nation with which the United States may 
 be at war." 
 
 The selective draft act was entitled "An act to author- 
 ize the President to increase temporarily the military 
 establishment of the United States," and it provided, 
 among other things, that "the President be, and he is 
 hereby, authorized ... to draft into the military ser- 
 vice of the United States" the members of the Na- 
 tional Guard, and "to raise by draft as herein pro- 
 vided, organize, and equip an additional force of 500,- 
 ooo enlisted men, or such part or parts thereof as he 
 may at any time deem necessary" ; and "the President 
 is further authorized, in his discretion and at such 
 time as he may determine, to raise and begin the train- 
 ing of an additional force of 500,000 men." The 
 espionage act contains a typical grant of authority to 
 be exercised upon the judgment and in the discretion 
 of the executive. It provides : 
 
 "Whenever during the present war the President shall 
 
146 RELATION OF EXECUTIVE 
 
 find that the public safety shall so require, and shall make 
 proclamation thereof, it shall be unlawful to export from 
 or ship from or take out of the United States to any 
 country named in such proclamation any article or arti- 
 cles mentioned in such proclamation, except at such time 
 or times, and under such regulations and orders, and 
 subject to such limitations and exceptions, as the Presi- 
 dent shall prescribe, until otherwise ordered by the Presi- 
 dent or by Congress." 
 
 The same purpose and the same method are appar- 
 ent in the statute which has perhaps more nearly 
 touched the daily lives of the people than any other, 
 entitled "An act to provide further for the national se- 
 curity and defense by encouraging the production, con- 
 serving the supply, and controlling the distribution of 
 food products and fuel." This act, approved August 
 10, 1917, provides that "the President is authorized to 
 make such regulations and to issue such orders as are 
 essential effectively to carry out the provisions of this 
 act/' And the President's proclamation setting in mo- 
 tion the vast machinery of the food and fuel adminis- 
 trations (August 14, 1917) was explicitly based upon 
 this grant of authority. So it was also with the statute 
 to regulate and punish trading with the enemy and 
 providing a custodian of alien enemy property; and 
 with the act of May 16, 1918, "to authorize the Presi- 
 dent to provide housing for war needs"; and with the 
 so-called "Overman act," entitled "An act authoriz- 
 ing the President to co-ordinate or consolidate execu- 
 tive bureaus, agencies, and offices, in the interest of 
 economy and the more efficient concentration of the 
 government." 
 
 Finally, attention should be given to the very im- 
 portant proclamation of the President taking over the 
 
POWER TO LEGISLATION 14? 
 
 railway systems of the country, because it is evident 
 that it was drawn with very great care, and because it 
 is very explicit as to the source of his authority. This 
 proclamation, dated December 26, 1917, begins with a 
 recital of the declaration of war as having been made 
 by "the Congress of the United States in the exercise 
 of the constitutional authority vested in them." Next 
 it repeats the provision of an act of August 29, 1916, 
 to the effect that 
 
 "the President in time of war is empowered, through the 
 Secretary of War, to take possession and assume control 
 of any system or systems of transportation, or any part 
 thereof, and to utilize the same, to the exclusion so far 
 as may be necessary of all other traffic thereon, for the 
 transfer or transportation of troops, war material and 
 equipment, or for such other purposes connected with 
 the emergency as may be needful or desirable/' 
 
 The proclamation continues : 
 
 "And whereas it has now become necessary in the 
 national defense to take possession and assume control 
 of certain systems of transportation and to utilize the 
 same, to the exclusion so far as may be necessary of 
 other than war traffic thereon, for the transportation of 
 troops, war material and equipment therefor, and for 
 other needful and desirable purposes connected with the 
 prosecution of the war; Now therefore I, Woodrow 
 Wilson, President of the United States, under and by 
 virtue of the powers vested in me by the foregoing reso- 
 lutions and statute, and by virtue of all other powers 
 thereto me enabling, do hereby, through Newton D. 
 Baker, Secretary of War, take possession and assume 
 control at twelve o'clock noon on the 28th day of De- 
 cember, 1917, of each and every system .of transporta- 
 tion, and the appurtenances thereof, located wholly or in 
 part within the boundaries of the continental United 
 States, and consisting of railroads," etc. 
 
 Nevertheless a United States District Court, having 
 
148 RELATION OF EXECUTIVE 
 
 to consider the effect of this proclamation in a suit be- 
 fore it, to which one of the commandeered roads was 
 a party, 8 has said : 
 
 "The proposition is so well established as to be ele- 
 mentary that Congress may authorize heads of depart- 
 ments or other officers to make regulations within cer- 
 tain limits, and, when made within those limits, such 
 regulations have the force and effect of law, and may be 
 enforced as such; but it has often been held that the 
 delegation of authority to make regulatory orders gives 
 no power to add to, take from, or modify the limitations 
 prescribed by Congress/' 
 
 Now the act of August 29, 1916, authorizing the 
 President to take possession of the railroads through 
 the Secretary of War, 
 
 "does not give authority to the President to make or 
 promulgate a proclamation of any character. No one, 
 however, could or would contend that he had not abun- 
 dant authority to issue such documents whenever he 
 thought it proper to give notice or information to the 
 public. But such papers cannot have any effect as laws, 
 in the absence of express constitutional or congressional 
 authorization/' 
 
 Consequently the court felt constrained to hold that 
 the proclamation in question, in so far as it appointed 
 the Secretary of the Treasury to be "director general 
 of railroads" and provided other details in regard to 
 the control and operation of the roads, has no force 
 as law, that is, it cannot affect or modify the legal 
 rights or obligations of any person or corporation. 
 
 8 Muir vs. Louisville & Nashville Railroad Company, 247 Fed- 
 eral Reporter, 888. 
 
VII 
 
 EXECUTIVE POWER IN THE STATES 
 
 The governments of the states were moulded into 
 their first form upon the same theory of the relations 
 between the executive and the legislature as that which 
 came to prevail in the formation of the federal Con- 
 stitution and the early operation of the government 
 under it. Indeed, the general acceptance of this theory 
 among the men of leading and influence in the states 
 may be said to have predetermined its destiny as a 
 guiding principle in the working of the national gov- 
 ernment. The constitutions adopted in the Revolu- 
 tionary period recognized the importance of separating 
 the three main departments of government and made 
 suitable provision to that end, and none more clearly 
 and explicitly than that of Massachusetts, in 1780. 
 But the purpose, declared with equal explicitness, was 
 "that this may be a government of laws and not of 
 men/' That was the idea which lay back of all the 
 precautions taken by the early constitution makers 
 the fear of the tyrannical exercise of power by indi- 
 vidual men in office. Very close to them were the 
 memories of the almost unlimited powers vested in 
 some of the colonial governors and their arbitrary and 
 high-handed exercise. Nor was it easy to exorcise the 
 bogie of that stubborn and meddling monarch George 
 III. It is no wonder that the men of that day should 
 
ISO RELATION OF EXECUTIVE 
 
 have had a profound distrust of executive power and 
 serious apprehensions as to the possibility of its abuse. 
 To their minds it was clear that a chief executive offi- 
 cer was needed, and that the discharge of purely ad- 
 ministrative functions by the legislative body was 
 neither suitable nor safe. Yet their conception of the 
 legislature as the supreme power in the state, and as 
 the possessor of such "sovereignty" as might be con- 
 ceded to exist among a free people, was equally fixed. 
 Hence it followed that the law-making department was 
 to be predominant. The governor was to be strictly 
 confined to the somewhat narrow prerogatives which 
 were somewhat grudgingly granted to him. He was 
 not to be the ruler, the leader, or the dictator of poli- 
 cies or of laws. It will not be forgotten that several 
 of the early state constitutions even provided for the 
 choosing of the governor by the legislature. 
 
 So much for theory. But the actual evolution of the 
 state governments has shown an endeavor on the part 
 of the executive office to extricate itself from some of 
 the restraints placed upon it, and a tendency on the 
 part of the people to retrieve from the field of legisla- 
 tive exercise some of the functions and duties which 
 are properly executive in their nature and to bestow 
 them where they rightfully belong. Perhaps this does 
 not indicate a changing belief as to the relative im- 
 portance of the executive and legislative departments, 
 nor any deliberate purpose to shift the leadership from 
 the one to the other. Rather it resulted from a grad- 
 ual but accelerating conviction in the minds of the 
 people that the functioning of their state legislatures 
 was becoming had indeed become grossly unsatis- 
 
POWER TO LEGISLATION 151 
 
 factory and disappointing. From the middle of the 
 nineteenth century there became apparent a remark- 
 ably wide-spread distrust of the legislatures. Their 
 powers had been abused; they had failed to register 
 the real desires of the people; often they had thwarted 
 the popular will; some of their enactments were im- 
 practicable, others downright foolish; they were not 
 free from the taint of corruption; legislators were 
 purchasable ; it was only too conspicuously evident that 
 at times they were unworthily dominated by unscrupu- 
 lous business interests. Hence there came an era 
 chiefly distinguished for the successive application of 
 curbs upon the powers of the legislatures. From time 
 to time, as the people had opportunity to amend or 
 revise their constitutions, they sought to delimit more 
 sharply the permissible activity of the legislative body. 
 But practically all these reforms were negative rather 
 than positive in character. That is, the effort was not 
 so much to improve legislative doings or promote the 
 making of good laws as to minimize the legislature's 
 power for harm. 
 
 Thus there began to appear in the constitutions pro- 
 visions relating to legislative procedure, as, that each 
 bill shall relate to but one single subject, which shall 
 be plainly expressed in the title, and that laws shall 
 not be amended nor their provisions extended by mere 
 reference, but that such modifications or extensions 
 must be effected by re-enactment at length. The gen- 
 eral prohibitions against local and special legislation 
 having proved ineffectual, the constitutions began to 
 be encumbered with a long list of subjects, generally 
 of .this character, as to which the legislature is forbid- 
 
152 RELATION OF EXECUTIVE 
 
 den to act at all. The sessions of the legislative body 
 were made shorter and less frequent. That is, bien- 
 nial sessions were generally substituted for annual as- 
 semblies, and the number of days during which the 
 session might continue was cut down to narrow limits. 
 This drew forth from one observer the remark that 
 
 "for a people claiming pre-eminence in the sphere of 
 popular government, it seems hardly creditable that in 
 their seeming despair of a cure for the chronic evils of 
 legislation, they should be able to mitigate them only by 
 making them intermittent." 
 
 I Again the practice began and has continued of in- 
 corporating into every new constitution a host of pro- 
 visions which are purely of a statutory nature and 
 therefore have no fitting place in the fundamental law. 
 This practice of overloading the constitutions has 
 worked infinite harm, since it has tended to confuse the 
 real distinction between true and essential principles 
 of government and merely ephemeral pieces of legisla- 
 tion, and has distinctly lowered the respect of the peo- 
 ple for their organic laws. But it seemed the only way 
 in which certain subjects of high importance could be 
 removed from the grasp of the legislature; and the 
 utter lack of public confidence in such bodies could not 
 be more strikingly manifested than in the adoption of 
 this otherwise indefensible method of securing a cer- 
 tain measure of continuity and immunity from med- 
 dling for laws considered to be of especial importance 
 in the policy of the state. ] Finally, the popular initia- 
 tive and the compulsory referendum in legislation are 
 advocated by their friends almost entirely on the 
 ground that they give the people an additional means 
 
POWER TO LEGISLATION 153 
 
 of control over an unresponsive, extravagant, faithless, 
 or corrupt legislature. 
 
 In the federal government we have seen the theory 
 of the supremacy of the legislative branch gradually I 
 give way to the leadership of the executive. Whatever 
 else may be said of this change, it cannot be denied that 
 it has resulted in the development of a strong, efficient, 
 and well co-ordinated government. But the process in / - 
 the states has been very different. The curtailment of 
 the powers of the legislatures and the withdrawal from 
 them of the respect and confidence of the people have 
 not been compensated by any corresponding enlarge- 
 ment of the powers and influence of the governors. 
 Rather, the period of which we are speaking has been 
 described as one of "decentralization and disintegration 
 of the executive." And the consequence is that the 
 state governments today constitute the weak link in 
 our chain of political institutions. 
 
 Since approximately the time of the Civil War, the 
 legislative output of the states has taken on a differ- , 
 ent complexion and their administrative business has 
 enormously increased. This has been due to the in- ] a Trriij/l , 
 troduction into daily life of the splendid acquisitions 
 of science, to the steadily increasing complexity of so- / \ 
 oaTan3 industrial conditions, and to the rise of that 
 new democracy which grounds its teachings upon hu- 
 man brotherhood and finds its best expression in the 
 voice of an awakened public conscience. In the inter- 
 ests of the public welfare and for the protection of the 
 individual, no less than for the encouragement of en- 
 terprise and the enrichment of the life of the com- 
 munity through an increase of the prosperity of the 
 
154 RELATION OF EXECUTIVE 
 
 whole, the states have had to turn their attention, in 
 both their legislative and administrative departments, 
 to the railroads, telegraphs, and telephone systems, and 
 the various other public utilities which have become in- 
 dispensable ministrants to the public convenience and 
 comfort; to the systematic enlargement and improve- 
 ment of the methods and means of public education; 
 to the regulation of banking and the business of in- 
 surance; to the conservation and beneficial use of nat- 
 ural resources and the encouragement of agriculture; 
 to modern theories and practices in the matter of pub- 
 lic sanitation; to new and vital ideas in the domain of 
 organized charities and of preventive and correctional 
 police; to the reform and reorganization of the muni- 
 cipal governments; and to the regulation of industry 
 and commerce, for the prevention of injustice and op- 
 pression and for ameliorating the lot of the vast army 
 of workers. 
 
 All this work required a substructure of legislation. 
 But after legislation comes administration. General 
 rules, principles, and policies having been laid down 
 in the laws, the working out of their details and their 
 application in actual practice to an infinite complexity 
 of cases is the task of the administrative department. 
 But (speaking necessarily in the most general terms) 
 the entry of the state into these new fields of regula- 
 tion and control has not tended either to strengthen 
 the influence of the governor or materially to increase 
 the sphere of his official activity. Almost universally 
 the disposition has been to commit the administration 
 of all these various new departments to new executive 
 officers, popularly elected, and therefore owing no de- 
 
POWER TO LEGISLATION 155 
 
 ference or allegiance to the governor of the state other 
 than such as may spring from considerations of party 
 interest, or else to boards and commissions specially 
 created for the purpose, and whose members, if in the 
 first instance they owe their appointment to the gover- 
 nor, are not invariably subject to his power of re- 
 moval, and are only in a slight degree responsible to 
 him or subject to his control. In several of the states, 
 there are now more than one hundred such separate 
 executive officers, boards, commissions, or other ad- 
 ministrative agencies. It has not inaptly been termed 
 an age of "government by commissions." The result 
 is that the governor of a state is not vested with the 
 power of control and the corresponding responsibility 
 which clearly belong to the head of the executive de- 
 partment. He is the chief magistrate only in name 
 and appearance. To a very limited extent he is an ex- 
 ecutive officer ; to an infinitely greater extent he is only 
 a political officer. 
 
 The contrast between the growth of executive power 
 in the federal government and its decline in the state 
 governments has been well stated in the following 
 passage : 
 
 "Originally occupying about the same relative position 
 [as the President] the governor has been stripped of his 
 administrative power and confined to the exercise of po- 
 litical powers, while the President has been gaining more 
 and more administrative power, until at the present time 
 he makes or unmakes the administration of the United 
 States. It has become impossible for the governor to 
 become the head of the commonwealth administration 
 because the people have decided that he shall be in the 
 main a political officer. They have lessened his power 
 of appointment. They have almost destroyed his power 
 
156 RELATION OF EXECUTIVE 
 
 of removal. He has been unable to develop any power 
 of direction. The governor's office has been deprived of 
 all means of administrative development." 1 
 
 Still it is an undeniable fact that the people of the 
 1 average state do look to the governor as their leader. 
 They feel that he is the one person who most truly 
 represents the embodied power and dignity of the state 
 and the collective will of its people. However un- 
 justly, he is the one who is held responsible for the 
 government of the state during his administration. It 
 may be that there survives some ancient veneration for 
 the office of the governor, some inarticulate memory 
 of great men who guided the destinies of the state in 
 past days. It may be because the governorship is the 
 chief political prize within the state. It is perhaps 
 more likely because such powers and prerogatives as 
 still remain to the governor are his exclusively, to be 
 shared with no one else, so that the light which plays 
 upon his official doings is f ocussed upon the individual, 
 instead of being refracted from the many facets of a 
 composite executive. But whatever the cause, the fact 
 remains that the governor is still the most conspicu- 
 ous figure in the state administration, and if his pow- 
 ers were sufficiently strengthened, and supposing him 
 to possess an adequate natural endowment and ex- 
 perience, the one best fitted both to represent and to 
 lead the people. To an appreciable extent, a state 
 governor is forced into that very position. It is his 
 constitutional duty to address the legislature (in per- 
 son or by message) upon the activities, the policies, 
 
 1 Goodnow, "Comparative Administrative Law," p. 81, as quoted 
 in Finley's "The American Executive," p. 46. 
 
POWER TO LEGISLATION 157 
 
 and the needs of the state, and to recommend the en- 
 actment of such laws as he deems salutary or expe- 
 dient. Thereby he assumes a distinct responsibility 
 towards the public, but it is a responsibility which is 
 unjustly laid upon his shoulders if he is unable to 
 carry his plans into effect. His may be a "voice crying 
 in the wilderness/' but he is blamed if the hosts do 
 not assemble in answer to his call. 
 
 Signs are not wanting, however, of a popular dis- 
 position to confide more to the governor, while exact- 
 ing more from him. A publicist of distinction, re- 
 cently the governor of his state, has said : 
 
 "The people look to the governor, and not to the in- 
 dividual members of the legislature, for leadership and 
 for the passage of such laws as the economic, political, 
 and social condition of the state may demand, and judge 
 his administration by his success or failure in securing 
 the enactment of necessary laws. There is profound dis- j 
 trust by the people of the United States of their legisla- 
 tures and serious suspicion as to the source of legisla- 
 tion, and this distrust and suspicion are intensified by the 
 dark-lantern methods which prevail, and the secret, in- 
 visible government by which these bodies are so often 
 dominated. The people of the United States want their 
 governors to be leaders in legislation, for they alone rep- 
 resent the entire state, and they favor such constitutional 
 revision as will make their leadership secure and ef- 
 fective." 2 
 
 It is true that some of the state governors, like 
 Theodore Roosevelt in New York, have assumed and 
 exercised the functions of leadership with notable en- 
 ergy and often with no less remarkable results. But 
 this has been due to the dynamic character of the man 
 
 2 Hon. Emmet O'Neal in Virginia Law Register, December, 
 1917, p. 166. 
 
158 RELATION OF EXECUTIVE 
 
 himself, rather than to any peculiarity in the constitu- 
 tions of those states. Such governors have simply laid 
 hold upon the possibilities of the situation. But their 
 conduct has been exceptional, not typical. As explain- 
 ing how an executive of such force of character may 
 make his personality felt, rather than as delineating any 
 common or general process of executive leadership in 
 government, attention may well be given to the fol- 
 lowing passage from an important study of the state 
 governments, quite recently published : 
 
 "Since the governor is armed with the appointing and 
 veto powers, his recommendations are bound to be con- 
 sidered regardless of his party affiliation. If he is dis- 
 posed to make a vigorous use of these powers in order 
 to promote a legislative program of his own, he becomes 
 a more influential legislator than any single member of 
 the legislature itself, not even excepting the speaker. 
 Public recognition of this fact has caused the governor to 
 accept a responsibility which the framers of the original 
 state constitutions would have regarded as unconstitu- 
 tional, for the action of the legislature upon the principal 
 public issues. Executive usurpation of legislative pre- 
 rogatives has been sanctioned by public opinion, because 
 the governor has tended to stand for the interests of the 
 state as a whole, being elected in the state at large, whilst 
 the members of the legislature have only too often stood 
 for local and private interests within their several dis- 
 tricts/' 3 
 
 There seems to be a general conviction that the time 
 has come to rescue the state governments from this un- 
 satisfactory condition and to make them as strong and 
 efficient in their proper sphere as the federal govern- 
 ment has become. But apparently the people despair 
 of reforming their legislatures. Proposals in that be- 
 
 3 Arthur N. Holcombe, "State Government in the United 
 States," p. 268. 
 
POWER TO LEGISLATION 159 
 
 half are almost invariably confined to the idea that 
 the output of laws might be improved if the number 
 of members of the legislature were greatly reduced, 
 and perhaps that the legislative body should be reor- 
 ganized as a single small chamber. On the other hand, 
 public opinion has strongly turned to the executive de- 
 partment as the field in which beneficial change may 
 most readily be brought about, with a helpful reaction 
 upon the entire system of state administration. To 
 enlarge the powers of the governor, to strengthen his 
 influence, to invest him with the right to initiate, direct, 
 and control legislation and with authority over prac- 
 tically all the other state officers, and so to place him 
 frankly in a position where he may assume the leader- 
 ship of the state, charging him with a corresponding 
 responsibility this is the plan of reform most widely 
 and vigorously advocated. The discussion of the sub- 
 ject must first of all recognize the fact that the prob- 
 lem of the relation between the executive and legisla- 
 tive departments is not at all the same in the states as it 
 is in the United States. It grows out of a different set 
 of conditions, and it is by no means certain that it 
 could or should be solved in the same way. The gov- 
 ernmental machinery of a state is different from that 
 of the national government. Besides, presidential as-\ ? 
 pirations to leadership and control have not been 
 avowedly based on any charge that Congress had be- 
 come incompetent or corrupt, while, in the states, it is 
 the decadence of the legislatures which is chiefly re- / 
 sponsible for the hope that in the ascendancy of the 
 governor may be found the way of salvation. 
 
 First, the proposal to give the governor a direct 
 
160 RELATION OF EXECUTIVE 
 
 right of initiative in legislation grows naturally out of 
 his constitutional authority and duty to recommend 
 the enactment of laws upon such subjects as he deems 
 important. The annual and other messages of the 
 state governors do, it is true, receive considerable at- 
 tention, and it may be supposed that they exercise a 
 limited influence upon the course of legislation. But 
 it is not invariably the case that bills are introduced in 
 accordance with their suggestions or debate excited, 
 and at the best the message can only outline a general 
 policy without attempting to mould details. The gov- 
 ernor's duty to recommend legislation may plausibly 
 be said to imply a further duty to use every proper 
 means to see that his recommendations bear fruit. But 
 no such means are constitutionally at his command. 
 He can only resort to personal urgency or political 
 pressure. It is no matter of surprise, then, that meas- 
 ures which the governor himself considers of the ut- 
 most importance, or which he is most strongly pledged 
 to advocate, sometimes receive but lukewarm consid- 
 eration at the hands of the legislature, and if they are 
 not secretly done to death by sinister influences, are 
 committed to unbroken repose in the files of the com- 
 mittee room. 
 
 The remedy proposed is to give the governor power 
 to suggest amendments to any bills which are presented 
 to him for his signature, and also the right to introduce 
 his own drafts of bills directly into either house of the 
 legislature, and there to explain them and argue for 
 their passage either in person or through the heads of 
 executive departments. What might be expected from 
 such a change of methods has been thus expounded by 
 
POWER TO LEGISLATION 161 
 
 a writer whose own experience as the governor of his 
 state entitles him to speak with authority: 
 
 "With the power of amendment, which should not be 
 overcome except by a two-thirds vote, with authority to 
 submit his recommendations either in person or by writ- 
 ten message, and to present these recommendations in the 
 form of bills, and to defend them on the floor of the 
 legislature in open debate, such bills to enjoy precedence 
 on the calendar of both houses over all other bills except 
 appropriations, the governor would assume that position 
 of leadership which would guarantee efficient and vigor- 
 ous administration. If bad laws are passed, the gover- 
 nor is generally held responsible at the bar of public 
 opinion, and hence he should be armed with power to 
 make his leadership effective, as the responsible chief of 
 state. This increase of the power of the executive would 
 tend to better and more responsible legislation and make 
 the governor directly responsible for the laws enacted 
 during his administration." 4 
 
 It has even been suggested that the best results might 
 be obtained by giving to the executive department a 
 constitutional monopoly of the initiative in legislation. 
 Certainly this goes too far. At the same time it is an 
 incontrovertible fact that the business of a legislative 
 session is directed and controlled either by a leader or 
 band of leaders within the house, by a political boss 
 or bosses, by organized outside influences, or by a 
 combination among some or all of these sources of 
 power. Nothing is accomplished except by personal 
 initiative and personal influence. The mass of legisla- 
 tors must either be pushed or led. 
 
 "It is a cardinal fact, to be recognized in the construc- 
 tion of legislative bodies, that the ultimate and all-im- 
 portant duty and function of the people, and even of 
 
 4 Hon. Emmet O'Neal, in the Virginia Law Register, Decem- 
 ber, 1917, p. 166. 
 
i62 RELATION OF EXECUTIVE 
 
 their representative bodies, must 'be simply to assent and 
 dissent. To a single leader or group of leaders must fall 
 the responsibility of initiative, of interpreting, crystalliz- 
 ng, and formulating the vague and dormant thoughts of 
 the people, and submitting their formulations to them for 
 correction and adjustment. We must set up in our legis- 
 lative bodies the definite machinery of initiative and as- 
 sent. If we fail to do so, the actual management of legis- 
 lation will continue to lie outside the control of the peo- 
 ple, in the hands of unofficial and irresponsible leaders. 
 For leaders there must be." 5 
 
 Even without giving the executive a monopoly of 
 the initiative, there is ground to believe that the qual- 
 ity of the legislative output would be greatly improved 
 if the governor and his chief aides could frame and in- 
 troduce their own bills. Such measures could not fail 
 to carry a special prestige, and it is altogether probable 
 that they would be subjected to more careful scrutiny 
 and more earnest debate, and, what is most important, 
 both their advocates and their opponents would be 
 forced to come out into the light of day. It is beyond 
 question that one of the results would be a much 
 greater measure of precision, definiteness, and accur- 
 acy both in the processes of legislation and in the lan- 
 guage of the statutes. If anyone is insensible to the 
 need of improvement in these respects, let him ponder 
 the following pieces of evidence. Governor Hodges 
 of Kansas is reported to have stated that, during his 
 incumbency of that office, although his executive clerk 
 and the attorney general did their best to scrutinize 
 all the bills before the legislature, two instances were 
 found in which identically the same law had been en- 
 
 5 H. S. Gilbertson, in the National Municipal Review, Novem- 
 ber, 1917, p. 669. 
 
POWER TO LEGISLATION 163 
 
 acted twice in the same session, a case in which an act 
 had been repealed three times, a statute which was 
 amended by a new statute within a very few days after 
 its enactment, and a law, passed in 1911, which was 
 repealed in 1913, and then, after being so repealed, 
 was at the same session amended and again repealed. 
 And in the same line a recent writer observes that 
 while, with respect to other classes of legislative work, 
 
 "the failure of the legislatures is to a certain extent a 
 matter of opinion, with respect to the drafting of legis- 
 lation their incompetence is plainly recorded in the statute 
 books. Crude, almost illiterate, legislation is constantly 
 coming to light through the proceedings of the state 
 courts ; laws which cannot be intended to mean what they 
 say, and laws which mean nothing, are not uncommon. 
 A regulation found in the road law of one state that no 
 one shall operate a political steam roller or band wagon 
 en the highway doubtless was put there in jest, but there 
 is nothing funny about a provision, found in the same 
 state, that proprietors of hotels shall keep the walls and 
 floors of their rooms covered with plaster. In Massa- 
 chusetts, where things are supposed to be done better, 
 one legislature, in trying to prevent the display of the red 
 flag of anarchy upon the highway, succeeded in forbid- 
 ding Harvard students from carrying their college ban- 
 ner to the football field/' 6 
 
 These general ideas as to strengthening the executive 
 branch of the state governments have not failed to find 
 expression in more or less definitely formulated pro- 
 grams, some of which are sufficiently novel, or suffi- 
 ciently radical, to require mention. For example, ac- 
 cording to a plan proposed by Mr. Richard S. Childs, 7 
 
 "the governor and council would prepare and introduce 
 budget and other legislation and get the consent of the 
 
 6 Holcombe, "State Government in the United States," p. 270. 
 
 7 In the National Municipal Review, November, 1917, p. 661. 
 
164 RELATION OF EXECUTIVE 
 
 lower -house if they can. The lower house has the power 
 of reducing items in the budget, and may repeal laws or 
 enact them by passing them two years in succession in 
 spite of the dissent of the governor and council. The 
 governor and council having ample administrative service 
 would originate the big legislative projects and argue for 
 them in the lower house as administration measures. 
 Such bills would be properly related to old law and old de- 
 partments, as distinguished from individual freak bills 
 originating with the more amateur representatives. The 
 lower house would become a consenting body, reviewing 
 and accepting or rejecting the projects of the more ex- 
 pert governor and council/' Again, we are told that 
 "a very noteworthy scheme was presented in 1918 to the 
 legislature oif Illinois, but failed to become a law. The 
 bill provided for a joint legislative commission, com- 
 posed of the governor, lieutenant governor, speaker of 
 the house, chairmen of the committees on appropriations 
 of the senate and the house, chairmen of the committees 
 on judiciary of the senate and the house, together with 
 five other senators and five other members of the house. 
 The purpose of this commission would have been to pre- 
 pare in advance of a legislative session a program of 
 legislation, with drafts of bills on subjects investigated 
 by the commission, and the commission was given power 
 to that end to appoint special committees of its own 
 members or others to study particular problems and draft 
 bills. Nothing short of actual experience could determine 
 the value of such a plan or the alterations that might be 
 required in it, but it will be noted that it forces nothing 
 on the legislature and creates no new constitutional prob- 
 lems." 8 
 
 Altogether the most comprehensive, consistent, and 
 advanced plan for the reorganization of a state's ex- 
 ecutive department was that presented to the Massa- 
 chusetts Constitutional Convention, in session in the 
 summer of 1917. This plan was drawn by Mr. Josiah 
 Quincy of Boston, formerly the mayor of that city, 
 8 Freund, "Standards of American Legislation," p. 299. 
 
POWER TO LEGISLATION 165 
 
 and was recommended to the favorable consideration 
 of the convention by the unanimous vote of the com- 
 mittee on the executive, to which it had been referred. 
 The program is of such importance and general inter- 
 est that the resolutions in which it was embodied are 
 here set forth in full. 
 
 "Resolved, that it is expedient to amend the Constitu- 
 tion by the adoption of the subjoined articles of amend- 
 ment: 
 
 "i. The executive department of the government of 
 the Commonwealth shall include all executive and ad- 
 ministrative functions and offices and all offices not com- 
 ing under the judicial or the legislative department. All 
 state officers whose election by the people is provided 
 for by the Constitution, shall be under the authority and 
 control of the governor, and all such officers and em- 
 ployees without exception shall furnish him with any 
 official report, information, or opinion which he may 
 require. 9 
 
 "2. The governor may remove any officer subject to 
 appointment by him and coming under the executive de- 
 partment for such specific cause as he may assign in 
 writing, provided that he shall first give such officer an 
 opportunity, with three days' notice, to be heard by him 
 upon the question of such removal and to file any reasons 
 against the same; the order of removal and any such 
 reasons against the same shall be filed with the secretary 
 of the Commonwealth and shall be a public record. 10 
 
 9 The accompanying report of the committee on the executive 
 explains this provision as follows : "The first amendment de- 
 fines in two sentences the scope of the governor's executive 
 authority. It subordinates to him, as supreme executive magis- 
 trate, the administrative and executive organization of the state, 
 so far as this is, or may be, created by statute." 
 
 10 The committee's report says that "the second amendment 
 gives to the governor independent power of removal; this seems 
 to the committee essential if any real responsibility is to be in- 
 troduced into our administrative system." 
 
166 RELATION OF EXECUTIVE 
 
 "3. The term of office of the governor and of the lieu- 
 tenant governor elected at the regular state election in 
 the year 1918, and in every alternate year thereafter, 
 shall be for two years from the first day of January next 
 ensuing. 11 
 
 "4. At the beginning of each regular session, and at 
 such other times as he may deem proper, the governor 
 shall give to the General Court 12 information as to the 
 state of the Commonwealth and recommend to its con- 
 sideration such measures as he shall judge necessary or 
 expedient. He may make such recommendations either 
 orally or by written message, to either branch of the 
 General Court or to both branches convened in joint ses- 
 sion ; so far as practicable, he shall accompany any spe- 
 cific recommendations so made with drafts of bills pro- 
 posed by him. Every such bill shall be designated as an 
 executive bill and shall be before the General Court for 
 its action, subject to any amendment thereof which the 
 governor may make by message while the same is pend- 
 ing. If any such bill is referred to a committee of the 
 General Court or of either branch thereof, a report shall 
 be made thereon within thirty days of the date upon 
 which the same was recommended by the governor ; and 
 after the expiration of five days from the time when it 
 is made, such report shall be given precedence in con- 
 sideration in both branches over all other reports or 
 bills. No such executive bill shall be rejected in either 
 branch of the General Court except by a vote taken by 
 yeas and nays. 13 
 
 11 "The third amendment," says the committee, "provides for 
 the election of the governor and lieutenant governor for a two- 
 year term. Independent of any action which may be taken upon 
 the general question of biennial elections, this committee be- 
 lieves that the chief executive at least should be given a two- 
 year term. It seems unnecessary and undesirable to continue 
 the practice of electing the governor annually in this Common- 
 wealth, and it certainly hampers him seriously in the develop- 
 ment of his policies and in giving the thought and energy which 
 should be called for in performing the duties of his office." 
 
 12 This is the designation given to the legislature by the Con- 
 stitution oif Massachusetts. 
 
 13 The fourth amendment, the committee explains, "gives for- 
 
POWER TO LEGISLATION 167 
 
 "5. In case an executive bill which the governor has 
 by message recommended to the General Court is not 
 enacted, in a form approved and signed by him, during 
 the session at which it was so recommended, the gover- 
 nor may refer such bill to the people by filing with the 
 secretary of the Commonwealth not later than the first 
 day of August next following a notice of such reference 
 accompanied by a copy of the bill so recommended. The 
 question of approving or rejecting such bill shall be placed 
 upon the official ballot, in a form approved by the gov- 
 ernor, and voted on at the state election, whether regular 
 or special, next ensuing; and if such bill is approved by 
 a majority of the voters voting thereon the same shall 
 become law and shall take effect at the expiration of 
 thirty days after the election at which it was approved, 
 or at such time after the expiration of the said thirty 
 days as may be fixed in such bill. In case any bill dis- 
 approved by the governor shall be passed by the General 
 Court notwithstanding his objections, the same shall not 
 take effect until thirty days from the date of such pas- 
 sage, and the governor shall have the right at any time 
 within such period to suspend the operation of such bill 
 until the same has been referred to the people by filing 
 with the secretary of the Commonwealth a written notice 
 of such suspension and reference. The question of ap- 
 proving or rejecting such bill shall be placed upon the 
 official ballot, in a form approved by the governor, and 
 voted on at the state election next ensuing; and if such 
 bill is approved by a majority of the voters voting thereon 
 the same shall become law and shall take effect at the ex- 
 piration of thirty days after the election at which it was 
 approved, or at such time after the expiration of the said 
 thirty days as may be fixed in such bill. If any bill dis- 
 approved by the governor fails of passage by the Gen- 
 eral Court in the manner provided in the Constitution, 
 the General Court may, by resolve which shall take ef- 
 fect without being laid before the governor for his ap- 
 
 mal recognition and authority, now lacking in our Constitution, 
 to the practice established in this state no less than in others, 
 where it has formal sanction, of executive recommendations to 
 the legislature." 
 
i68 RELATION OF EXECUTIVE 
 
 proval, refer such bill to the people in the manner and 
 with the effect prescribed and set forth in the forty-sec- 
 ond article of amendment of the Constitution. 14 
 
 "6. The governor may at any time attend a session of 
 either branch of the General Court and speak upon any 
 pending bill. Upon the written request of the governor, 
 any executive or administrative officer shall be admitted 
 temporarily to a seat in either brandi of the General 
 Court with the right to speak upon any matter coming 
 within or under his official authority, but without a right 
 to vote; and upon the request of either branch, made 
 through the governor, any such officer shall appear in 
 person before it. Either branch of the General Court 
 shall have the right to call upon the governor, or through 
 the governor to call upon any executive or administra- 
 tive officer, to furnish in writing information as to any 
 matter coming within or under his official authority, pro- 
 vided that such information need not be furnished if the 
 governor deems it incompatible with the public interest 
 to communicate the same. 15 
 
 14 This highly important provision, it will be observed, gives to 
 the governor a right to call a popular referendum on (that 
 is, submit directly to the vote of the electorate) any bill which 
 the legislature refuses to pass on his recommendation, and also 
 any bill which the legislature persists in passing over his veto. 
 The explanatory report of the committee states that: "The 
 fifth amendment gives the governor the right to submit directly 
 to the people, for adoption or rejection by them any executive 
 bill which the legislature refuses to pass. It is believed by the 
 committee that such a provision is a safe one, as the official 
 responsibility of the governor will cause him to use such power 
 with discretion and only when he believes that the public inter- 
 est requires direct action by the people." 
 
 15 According to the report of the committee, "the amendment 
 numbered six is intended to bring about closer contact between 
 the executive and legislative departments, and to bring them 
 into better working relations with each other. As every bill 
 passed by the legislature has to come before the governor for 
 his action, there seems no reason why he should not take part 
 in the discussion of any pending measure if he sees fit to do so/ 1 
 
POWER TO LEGISLATION 169 
 
 "7. The governor shall have the right to return any 
 bill within five days after it shall have been laid before 
 him to the branch of the General Court in which it origi- 
 nated, with a recommendation that any amendment or 
 amendments specified by him be made therein; such bill 
 shall thereupon be before the General Court and subject 
 to amendment and re-enactment, but no amendment so 
 recommended by the governor shall be rejected in either 
 branch except by vote taken by yeas and nays. If such 
 bill is re-enacted in any form, it shall again be laid be- 
 fore the governor for his action, but he shall have no 
 right to return the same a second time with a recommen- 
 dation to amend. The governor shall have the right, be- 
 fore acting on any such re-enacted bill, to disapprove and 
 strike out in the same any portion thereof which he may 
 deem properly separable from the remainder, provided 
 that within five days of the time when such bill was laid 
 before him he shall return to the branch of the General 
 Court in which it originated a true copy of the portion 
 so disapproved, together with his objections thereto in 
 writing; such portion shall thereupon be subject to recon- 
 sideration and re-passage in the same manner and sub- 
 ject to the same requirements as a bill disapproved by the 
 governor, and if so repassed, such portion shall be deemed 
 to be reinstated in such bill and shall have the force of 
 law as a part thereof/' 16 
 
 16 It was stated by the committee in its explanatory report 
 that "the amendment numbered seven gives the governor a very 
 desirable power, which is provided for by the constitutions of a 
 number of states. Instead oi being confined to the two courses 
 of signing a bill or returning it with his disapproval, this pro- 
 posal would allow the governor a third alternative, he would 
 be permitted to return a bill with recommendations for its 
 amendment." This provision, it will be noticed, combines the 
 principle of the selective or partial veto with the principle of the 
 submission of specific amendments, found in somewhat the same 
 form in the constitutions of Alabama, Virginia', and Australia. 
 The states whose constitutions give the governor a right of 
 partial veto now number thirty-seven, besides Porto Rico and the 
 Philippines. 
 
170 RELATION OF EXECUTIVE 
 
 Mr. Quincy's plan concluded with an eighth article 
 of amendment, which would regulate the succession to 
 the governorship in case the offices of both the gov- 
 ernor and lieutenant governor should become vacant. 
 
 But the Massachusetts Convention dealt with this 
 well planned and consistent program in a manner 
 which shows decisively that the people of that state are 
 not yet willing to trust their governor with more power 
 than he already possesses, either in respect to his con- 
 trol over subordinate officials or in respect to his in- 
 fluence upon the framing and enactment of the laws. 
 The seventh item of the program, giving him author- 
 ity to return bills with recommendations for their 
 amendment (substantially as quoted above) was in- 
 deed adopted without much opposition ; and the eighth, 
 relating to the succession to the office of governor, re- 
 ceived the approval of the Convention; and these two 
 were submitted to the people as proposed amendments 
 to the constitution and adopted at the election in No- 
 vember, 1918. But notwithstanding the fact that the 
 entire plan had the unanimous support of the com- 
 mittee, all the other items or proposals were rejected 
 by the Convention, in all instances by decisive majori- 
 ties and in some by a vote of nearly four to one. The 
 general ground of opposition seems to have been an 
 ineradicable fear that the chief executive, if armed 
 with a greater measure of power, might turn into a 
 tyrant. The leaders of the opposition exhibited a state 
 of mind which was very prevalent and very natural in 
 1780, but which is a little surprising in 1918. In the 
 course of the debates one of the delegates said that 
 governors already used the legislature for personal and 
 
POWER TO LEGISLATION 171 
 
 party ends, and that the pending proposition would 
 make the evil worse. Another declared that it would 
 "make the governor more than ever the party boss." 
 Another "thought the policy of the government should 
 originate with the people. The legislature was more 
 truly representative of the sentiment of the state than 
 the governor." Still another declared his belief that 
 "the proposed system would enable a governor to foist 
 his views upon the people and reduce the legislature to 
 a rubber stamp." Another expressed the view that 
 these proposals "would make the governors either auto- 
 crats or nonentities," and urged the Convention "not 
 to expose the state to the destruction of political liberty 
 by a despot." This evoked applause. And the gen- 
 eral attitude of distrust and fear was summed up in a 
 declaration by one of the delegates that to give the 
 governor power to appeal to the people for their ap- 
 proval of administrative measures which the legislature 
 refused to pass "would give a demagogic governor op- 
 portunity to work irreparable harm to the interests of 
 both capital and labor." 
 
 Similar considerations, it is probable, brought about 
 the rejection of another very interesting proposal made 
 to the Massachusetts Convention, to the effect that 
 power should be granted to the Executive Council to 
 issue orders relating to local, special, or private mat- 
 ters, which, unless annulled by the General Court, 
 should have the force of law. An influential Boston 
 newspaper commented favorably upon this proposition, 
 in the following terms : 
 
 "The first great gain accruing from such an arrange- 
 ment is obvious. It would relieve the General Court 
 
172 RELATION OF EXECUTIVE 
 
 from a heavy burden of legislative detail. During re- 
 cent years the annual ruck of bills affecting only a par- 
 ticular city or town, a single citizen, or some matter of 
 minor import within any one of our hundred state boards 
 and commissions, has outrun all patience. It crowds the 
 legislative docket, it unduly prolongs the session, and, 
 what is worst of all, it destroys the legislature's sense of 
 proportion. The senate and house are neither left time 
 to deal as they should with matters of large importance 
 nor given a chance to see through the maze of their cal- 
 endar to an estimate of what things truly deserve their 
 attention. The acts and resolves of our General Court 
 for the State of Massachusetts exceed in number each 
 year the acts of the London Parliament for the whole 
 British Empire. The explanation of this anomaly is that 
 the Parliament has discovered the secret of reducing the 
 bulk and the multiplicity of its legislation. It has con- 
 ferred upon at least five of the cabinet ministers power 
 to pass 'provisional orders' in many classes of matters, 
 and to give these orders the effect of law unless and 
 until, at the time when they come into Parliament in the 
 form of one general act, any one of them may be stricken 
 out or amended. The wisdom of such disposition seems 
 almost self-evident. The only points for Massachusetts 
 to solve are the questions, what exact application of the 
 system should be made in this commonwealth, and to 
 whom should the power of passing statutory orders be 
 trusted? To this latter question the committee report- 
 ing on the subject to the Constitutional Convention finds 
 the answer in the Executive Council. More and more 
 frequently during recent years, the General Court, in a 
 strenuous effort to relieve itself of some share of its 
 manifold duties, has been delegating functions of a legis- 
 lative character to the governor's council. Indeed, upon 
 a complete study of the many matters so committed, all 
 talk of abolishing the Council begins to appear very poorly 
 advised. Far more natural would it be to certify and 
 confirm the Council's new role by giving it the right to 
 pass the proposed provisional orders. This is what the 
 reporting committee suggests. As to the regulations 
 which shall govern the grant, they are many and several. 
 
POWER TO LEGISLATION 173 
 
 They do not permit the Council to pass any order in- 
 volving an expenditure of the commonwealth's funds un- 
 less from an appropriation already made. They provide 
 that whenever an order fails to receive a unanimous vote 
 of the Council's membership, together with the approval 
 of the governor, it shall be left open to amendment or 
 outright annullment by the General Court. The legisla- 
 ture's authority is thus preserved intact within all reason- 
 able limits, and at the same time the legislature's promise 
 of usefulness, with respect to all matters of major im- 
 portance, is greatly increased, to say nothing of the new 
 despatch and simplicity which the Council system would 
 bring to pass in the conduct of local and state adminis- 
 tration. The proposal here outlined is not of that com- 
 manding value which would inhere in some truly great 
 constitutional move to enhance the powers of the ex- 
 ecutive branch in all matters of legislation, and thus to 
 increase and determine the executive's responsibility to 
 the people at large. But it is a soundly considered re- 
 form which may well be taken on its own merits." 17 
 
 Whatever may be thought of the rest of the pro- 
 gram, it is to be regretted that Massachusetts has not 
 been willing to set an example in reforming the ex- 
 ecutive branch of the government by reducing the num- 
 ber of elective officers, or, rather, by making most of 
 them subject to appointment by the governor, and by 
 giving the governor a much greater power of direc- 
 tion, control, and removal over the whole system of 
 administrative officials. It is the dissipation of ex- 
 ecutive power, the lack of co-ordination among the 
 departments, and the lack of responsibility to a cen- 
 tral authority which have reduced our state govern- 
 ments to a condition of inefficiency and mismanage- 
 ment. Nominally the governor of a state is its chief 
 executive. Actually he is nothing of the kind. Al- 
 
 17 Boston Evening Transcript, August 5, 1918. 
 
174 RELATION OF EXECUTIVE 
 
 most exclusively he is a political officer, and the ex- 
 ecutive power is parceled out in fragments among a 
 large number of elected administrative officers, heads 
 of departments, chiefs of bureaus, boards, commis- 
 sions, and superintendents of this, that, and the other, 
 whose independence of the governor and of each other 
 has resulted in an almost complete disintegration of 
 the executive branch. 
 
 "American administrative law," says a recent writer on 
 that subject, "has added to the famous trinity of Montes- 
 quieu a fourth department, viz., the administrative de- 
 partment, which is almost entirely independent of the 
 chief executive, and which, so far as the central admin- 
 istration is concerned, is assigned to a number of officers 
 not only independent of the governor but independent 
 of each other." 
 
 In the first place, the movement by which, dur- 
 ing the first half of the nineteenth century, the greater 
 part of the chief administrative offices, as well as those 
 of the counties and cities, were made elective by popu- 
 lar vote was a movement in the direction of democrat- 
 izing the government, but it brought the inevitable pen- 
 alty of decentralization. On this subject Professor 
 Holcombe has well said : 
 
 "The direct popular election of the principal executive 
 officers, at the same time that it rendered them more in- 
 dependent of the legislatures, also rendered them more 
 independent of one another. The governor, secretary of 
 state, treasurer, attorney general, and other central offi- 
 cers became supreme, each in his own department. They 
 became severally and equally responsible to the people. 
 In a word, the executive branch of the state govern- 
 ments became what is technically known as a plural ex- 
 ecutive. The direct popular election of subordinate and 
 local administrative officers produced a similar effect. 
 The sheriff, county clerk, county treasurer, prosecuting 
 
POWER TO LEGISLATION 175 
 
 attorney, and other similar officials became supreme, 
 each in his own department. They became severally and 
 equally responsible to the people. Thus the state execu- 
 tives were decentralized as well as disintegrated. . . . 
 Candidates for state and local administrative offices on 
 the same party ticket were bound to make common cause 
 with one another during the campaign. After election, 
 however, their community of interest centered around 
 the problem ojf re-election rather than around the work 
 of public administration. Party ties had their place in 
 purely political affairs, but except for the governor the 
 administrative officers had no legitimate connection with 
 affairs of that nature. State or county administrative 
 officers might form rings for their mutual political bene- 
 fit, but they rarely formed rings for the benefit of the 
 public. Between state and local officials, party ties as 
 such were of even less use in promoting systematic and 
 efficient administrative action. . . . The disorganization 
 of state administration was in striking contrast to the 
 centralization and integration of party management." 18 
 
 To undo all this and restore efficiency to the gov- 
 ernment, it would be necessary to give the governor not 
 only the power to appoint the members of his admin- 
 istrative staff and the heads of the various depart- 
 ments, but also to remove them from office, on a more 
 or less summary process, when such a step was deemed 
 necessary in the public interests. These powers are 
 vested in the President of the United States, who is 
 the real and not merely the nominal head of the whole 
 federal hierarchy. Such powers are considered abso- 
 lutely indispensable in the case of the responsible head 
 of any important private or semi-public business. Is 
 the example of the United States unworthy of consid- 
 eration? Is the result of the federal experiment dis- 
 
 18 Arthur N. Holcombe, "State Government in the United 
 States," pp. 280, 282. 
 
j;6 RELATION OF EXECUTIVE 
 
 couraging? Is the conduct of the business of a com- 
 monwealth of less importance than that of a manufac- 
 turing enterprise ? 
 
 'The framers of our Constitution/' observes a former 
 President, "had one essential feature of efficient govern- 
 ment clearly in mind. They gave to the executive officer 
 charged in law with the responsibility, and actually 
 charged by the people with the responsibility, of carrying 
 on the executive department of the government the power 
 and means of meeting that responsibility. They vested 
 in him complete power to appoint all the officers of the 
 government who were subordinate to him, and upon 
 whose -political capacity and governmental discretion 
 would depend the wise carrying out of his policies. They 
 gave him the power of absolute removal, and they placed 
 in his hands the control of the action of all those who 
 took part in the discharge of the political duties of the 
 executive department. They acted on a sound political 
 principle, and it ought to be introduced into every field 
 of governmental activity, into the states and into the 
 cities. The plan under which a dozen state officers en- 
 gaged in executing the laws are elected on one ticket and 
 have no relation of subordination to the normal executive 
 head, the governor, is as absurd as it can be. It is one 
 of those anomalies in our political history, of which there 
 are a number, which seem to refute the idea that we are 
 an intelligent and clear-sighted people, because the sys- 
 tem adopted is so utterly at variance with the teachings 
 of experience. But we have had such governments in- 
 deed most of our state governments are of this kind. 
 They have not been as good governments as they might 
 have been or as they ought to have been, and yet they 
 have worked. The fact that they have worked may prop- 
 erly be taken as the most conclusive evidence of the po- 
 litical capacity of the American people through public 
 opinion to maintain a fairly good government, and to get 
 along somehow with what seems a priori to be an im- 
 possible system." 19 
 
 19 William H. Taft, "Our Chief Magistrate," p. 76. 
 
POWER TO LEGISLATION 177 
 
 But it is not only the heads of departments who 
 should be subject to discipline and removal by the gov- 
 ernor. To secure a really efficient and well articulated 
 executive department, it would be necessary that this 
 power should reach down to all of the officers, includ- 
 ing those of the counties if not of the cities, who have 
 to do with carrying the laws into effect. As experience 
 is the best teacher, and a lessen from history is more 
 impressive than any amount of abstract reasoning, we 
 may be content to leave this part of the subject with 
 the recital of the following anecdote, vouched for by 
 a very high authority on constitutional government: 
 
 "Not very long ago a mob of unmasked men rescued a 
 prisoner with whom they sympathized from the sheriff 
 of a county in one of our states. The circumstances of 
 the rescue made it very evident that the sheriff had made 
 no serious attempt to prevent the rescue. He had had 
 reason to expect it, and had provided no sufficient armed 
 guard for his prisoner. The case was so flagrant that the 
 governor of the state wrote the sheriff a sharp letter of 
 reprimand, censuring him very justly for his neglect of 
 duty. The sheriff replied in an open letter, in which he 
 curtly bade the governor mind his own business. The 
 sheriff was, he said, a servant of his county, responsible 
 to its voters and not to the governor. And his imperti- 
 nence was the law itself. The governor had no more 
 authority over him than the youngest citizen. He was 
 responsible only to the people of his own county, from 
 whose ranks the mob had come which had taken his 
 prisoner away from him. He could have been brought 
 to book only by indictment and trial indictment at the 
 instance of a district attorney elected on the same ticket 
 with himself, by a grand jury of men who. had voted for 
 him, and trial by a petit jury of his neighbors, whose 
 sympathy with the rescue might be presumed from the 
 circumstances." 20 
 
 20 Woodrow Wilson, "Constitutional Government in the United 
 States" (1908), p. 204. 
 
178 RELATION OF EXECUTIVE 
 
 But further, if the regime of government by boards 
 and commissions is to continue, it will be absolutely 
 necessary for the proper integration of the state gov- 
 ernment, the harmonious working of its various or- 
 gans, and the efficient conduct of its business, that 
 these shall be brought more directly under the guid- 
 ance and control of the governor. The boards and 
 commissions alluded to are those which are vested 
 with the state's authority and power of regulation over 
 such matters as public education, the banks, the rail- 
 roads, corporations in general, public utility companies 
 in particular, insurance, charities, agriculture, the con- 
 servation and development of natural resources, game 
 and fisheries, the public health, workmen's compensa- 
 tion or insurance, employment, labor statistics, and so 
 on. It is rather amazing to read that, in Massachus- 
 etts, 
 
 "at present there are more than one hundred separate 
 administrative agencies of the central government charged 
 with the direct enforcement of law or with the supervi- 
 sion of the activities of local administrative authorities. 21 
 In Illinois, also, there are more than one hundred sepa- 
 rate state offices, boards, and commissions, created by 
 statute, in addition to those created by the constitution. 
 Less than a fourth of those now in existence were cre- 
 ated before 1870, and more than a third have been cre- 
 
 21 But an amendment to the constitution of Massachusetts 
 adopted in 1918 provides that, on or before January i, 1921, "the 
 executive and administrative work of the commonwealth shall be 
 organized in not more than twenty departments, in one of which 
 every executive and administrative office, board and commission, 
 except those officers serving directly under the governor or the 
 council, shall be placed. Such departments shall be under such 
 supervision and regulation as the general court may from time 
 to time prescribe by law." 
 
POWER TO LEGISLATION 179 
 
 ated since 1900. In New York there were in 1915 no 
 less than 152 separate state administrative agencies. 
 There are no other states in which the growth in the ac- 
 tivities of the central government has produced so many 
 separate administrative agencies as in New York, but 
 there is no state where the organization of the admin- 
 istrative branch of the government retains its early nine- 
 teenth-century simplicity." 22 
 
 In the government of the United States also we have 
 witnessed the rise of commissions of vast importance 
 and of even vaster powers. Speaking only of those 
 which belong to normal times of peace and which were 
 in existence before the war, take, for example, the In- 
 terstate Commerce Commission, the Federal Trade 
 Commission, the Federal Reserve Board, the Federal 
 Farm Loan Board, and the Federal Board for Voca- 
 tional Education, and think of the almost immeasur- 
 able influence (not to say control) which is exercised 
 over the industries, the agriculture, the transportation, 
 and the financial resources of the country by the small 
 number of men who constitute a majority of the mem- 
 bers of the several boards named. But in the federal 
 government the process has been one of centralization, I / 
 not of disintegration; and however much the admin- 
 istrative authority of the government may appear to 
 have been divided and apportioned, it must be remem- 
 bered that all of these agencies are responsible to the 
 one supreme executive authority, the President of the 
 United States, at least to the extent implied in the fact 
 that he exercises both the power of appointment and 
 that of removal over their personnel. 
 
 22 Arthur N. Holcombe, "State Government in the Unit 
 States," pp. 286, 287. 
 
180 RELATION OF EXECUTIVE 
 
 But it is far otherwise in the state governments. So 
 far as control is retained over the administrative agen- 
 cies, it is vested in the legislative department, not the 
 executive. On this point it has been correctly ob- 
 served : 
 
 "The legislature often endows these boards or com- 
 missions with large powers, and while these powers may 
 be modified or withdrawn by legislative action, so long 
 as they are resident in the board it is practically free of 
 executive control, as the power of removal is either de- 
 nied the governor or so conditioned as to make its ex- 
 ercise most difficult if not impossible. Thus the legisla- 
 tive power is enlarged by the creation of certain ad- 
 ministrative offices, still kept, so far as they are depend- 
 ent, within legislative control. In the federal realm these 
 boards have given added influence and administrative 
 power to the executive, since they are usually placed un- 
 der his direction and he has full power of removal as 
 well as of appointment. The governor of the state is pre- 
 vented from being in the same sense the administrative 
 head of the state, partly by the fact that his power of 
 appointment is more limited, all or nearly all the im- 
 portant executive and judicial officers being now elective, 
 and partly by the other fact that the executive boards of 
 his appointment are generally beyond his control." 23 
 
 23 Finley, "The American Executive," p. 180. 
 
VIII 
 
 SUMMARY AND CONCLUSION 
 
 If we still retain the belief, so long an axiom of our 
 political faith, that the preservation of liberty requires 
 the separation of the powers of government; if we 
 sincerely mean what we say when we speak of democ- 
 racy as the ultimate achievement of the ages and as the 
 universal order of a re-born world; and if, at the same 
 time, we expect our governments to be vigorous and 
 efficient then we must profit by the lesson which re- 
 cent experience very plainly points out, namely, that 
 the successful working of government to the end of 
 preserving liberty, realizing democracy, and function- 
 ing with sureness and strength, under our constitu- 
 tional systems as we have them now, depends upon the 
 due balancing of power as between the executive and 
 legislative branches. If the former becomes the mas- 
 ter of the latter, there is a gain in the energy and ef- 
 fectiveness of government. But it is at the expense of 
 liberty, because the will and purpose of one man are, 
 to the extent of that predominance, put in place of the 
 collective will of the people as voiced through their 
 representatives. Hthe legislative power absorbs more 
 than its just share of control over the operations and 
 fHe~3estinies of the state, we make a nearer~approach 
 icTpure democracy. But,itJs..ajiemQ.cracy wKicti dissi- 
 *"paFes its energylmd fumbles its tasks. We have seetf 
 
i8a RELATION OF EXECUTIVE 
 
 the one event emerge into view as the result of forces 
 and tendencies in our national government. We have 
 seen that the other event may fairly be predicated of 
 our state governments as they exist today. In both 
 cases there has been a wide departure from the spirit 
 and the plan upon which our institutions were con- 
 ceived and set in motion. In neither case is the final 
 result to be accepted as satisfactory or even tolerable. 
 But to both aspects of the problem the best answer and 
 the solution most to be desired are the same to ar- 
 rest the swing of the pendulum, to restore the lost 
 equipoise. 
 
 In the states, it is true, the process of readjustment 
 need not involve any further restraints upon the legis- 
 latures. Rather, the balance is to be re-established by 
 raising the influence and authority of the governor, 
 now sunk too low. The various plans for making him 
 a real factor in legislation, and the leader of the state 
 in its policies and in its work for the public welfare 
 in short, for re-investing him with powers actually 
 commensurate with the responsibility which he as- 
 sumes on taking office have been sufficiently discussed 
 in the preceding pages. Above all, however, the pro- 
 cess of decentralization must be reversed. ' There must 
 be a gathering up, a reconcentration, of those powers 
 and functions which have been recklessly divided and 
 subdivided and spread broadcast among a host of 
 boards, commissions, and minor administrative offi- 
 cers ; or, at the very least, there must be a co-ordination 
 of the executive agencies of the state and a fair and 
 reasonable subordination of the whole to the control of 
 the chief magistrate. Only thus can efficiency, order, 
 co-operation, and progress be assured. 
 
POWER TO LEGISLATION 183 
 
 In the nation's affairs, on the other hand, we have 
 witnessed the decay of representative government, and 
 the substitution for it of a presidential autocracy. The 
 Constitution declares that "all legislative powers here- 
 in granted shall be vested in a Congress of the United 
 States/' But where is the legislative power now 
 vested ? The enacting clause of every act of Congress 
 represents it as vested in "the Senate and House of 
 Representatives in Congress assembled/' Formally 
 this is true, but formal enactment is one thing, inspira- 
 tion and control are other things. The Constitution 
 directs that the President "shall from time to time 
 give to the Congress information of the state of the ^^ 
 Union, and recommend to their consideration such 
 measures as he shall judge necessary and expedient." 
 But recommending that a measure should be consid- 
 ered and demanding thatjt shall be enacted are by no \ j 
 means identical steps. /Yet it has come to pass that 
 practically all measures of first-rate importance are 
 now, wholly or in part, written in the White House or 
 under its specific direction, or in the executive depart- 
 ments. They are then transmitted unofficially to some 
 member of the Congress for introduction, and forced 
 through the legislative mill by the strong pressure of 
 the executive arm. The President has obtained virtu- 
 ally complete control of our foreign relations and of 
 our domestic policies as well. From being the leader 
 of his party he has become the leader of the nation. 
 Instead of being the adviser of Congress, he is its 
 governor. The executive, and not the legislature, has 
 come to be regarded as the trustee of the public wel- 
 fare. \ 
 
184 RELATION OF EXECUTIVE 
 
 The balance of power is dislocated. Its restoration 
 should not be a matter of making a law or a legislative 
 rule, still less of constitutional change. If presidents 
 were content to play the part for which the Constitu- 
 tion has cast them, if legislators had a truer concep- 
 tion of their office and a larger measure of devotion to 
 their trust, no ordinance would be necessary. With 
 more self-restraint and greater respect for the funda- 
 mental principles of constitutional government on the 
 one side, and with more courage and independence and 
 a profounder sense of responsibility on the other side, 
 the equilibrium of the Constitution would be regained, 
 ship of state would right itself. 
 
 But perhaps it is impossible to return to the order 
 of an earlier day. Perhaps the processes of institu- 
 tional evolution have swept us too far along the cur- 
 rent of an irresistible stream. It may be that presi- 
 dents, not necessarily or personally avid of power, 
 have found themselves borne on the tide of forces 
 which they did not originate and are powerless to con- 
 trol. It may be that it is politically impossible for a 
 body comprising more than 500 members to contend 
 successfully for mastery against the concentrated 
 power of a single magistrate, their leader by force of 
 circumstances, and whom, for a fixed term of years, 
 they cannot overturn nor confine within any definition 
 of his office other than that which he conceives for 
 himself. Or it may be that the greater portion of our 
 people are careless of constitutional theories and prac- 
 tices, that they are satisfied with the conduct of the 
 nation's business as it is, and that they prefer presi- 
 dential government to representative government be- 
 
POWER TO LEGISLATION 185 
 
 cause it "gets results." Or if they have no positive 
 preference, at least they acquiesce. If this be so, what 
 are we going to do about it? It is unlike Americans 
 to let affairs drift aimlessly that is, beyond a certain 
 point. When a growth has become too heavy or too 
 unsightly, we seek the surgeon. When a political situ- 
 ation shocks our sense of order and good government, 
 we turn back our cuffs and set it right. 
 
 So then, first of all, let us have done with secret and 
 subterranean and underhand and unacknowledged 
 methods. Let us cast away hypocrisy and pretense, \ j / 
 and renounce makeshifts and evasions. Let us take 
 this whole matter out of the realm of hap-hazard and 
 apparel it with the respectable vestments of due pro- 
 cess of law. Let us proceed like sober men, who think 
 the serious business of government demands frank- 
 ness and truth and honor, and not like children play- 
 ing hide-and-seek. If we have outgrown the rules of 
 the game, let us make new rules. But let us play the 
 game openly, and not put up with shams. 
 
 For the whole matter and process of presidential 
 interference with the making of laws is a tissue of 
 pretense and camouflage. Dictation lurks under the 
 guise of "recommendation" and advice. We still sol- 
 emnly pretend that "all legislative powers are vested 
 in a Congress of the United States." The presidential 
 steamroller is masked with flowers of rhetoric, of com- 
 mon counsel, of deference mingled with desire. And 
 it ill becomes a truth-loving people to endure such a 
 system. If it cannot be brought to an end, or if we 
 really wish it to continue, we can make its paths 
 straight, we can free it from all necessity for dissimu- 
 
i86 RELATION OF EXECUTIVE 
 
 lation, we can let in the light of the sun upon it, we can, 
 in short, candidly acknowledge it, establish it upon a 
 basis of legality, give it frankness instead of stealth, 
 honor in place of opprobrium. 
 
 No constitutional change will be necessary. It will 
 not be a question of bringing within the Constitution 
 something which it does not now permit. It is merely 
 acknowledging the existence of something which it 
 does not forbid. It only recognizes the fact that our 
 conception of the purposes of the Constitution, in cer- 
 tain details, has changed, or that there has grown up a 
 "usage of the Constitution" which lies partially out- 
 side its letter but is in no way contrary to its explicit 
 prescriptions. 
 
 First let it be admitted that the President's consti- 
 tutional power to recommend to Congress such meas- 
 ures of legislation as he may deem necessary and ex- 
 pedient fully empowers him to recommend the enact- 
 ment of a bill, completely drafted, which he may 
 transmit with his message. But let us, in the next 
 place, be very clear that there is no one else in the 
 official hierarchy who has this authority. As this is 
 written there lies before my eyes a press clipping 
 which recites that 
 
 "on the eve of his surrender of his portfolio as Secre- 
 tary of the Treasury, Mr. McAdoo transmitted to one of 
 the Democratic leaders in the Senate a recommendation 
 that there be enacted a law authorizing the Secretary of 
 the Treasury, under restrictions similar to those now 
 prevailing, to continue to extend additional credits to 
 foreign governments. This recommendation was ac- 
 companied by the draft of a proposed bill carrying the 
 suggested authority." 
 
POWER TO LEGISLATION 187 
 
 Surely this needs no comment. Or rather, it is a 
 sufficient comment in itself on the length to which ex- 
 ecutive interference with legislation has been carried. 
 But nowhere in the Constitution are the heads of de- 
 partments invested with authority to "recommend to 
 the Congress such measures'' as they "shall deem nec- 
 essary and expedient." In law, that has been reserved 
 for the President. Let it be so reserved in fact. Of 
 course there is no reason why a cabinet minister should 
 not be eminently qualified to draft a model law on a 
 subject relating to his department. As between such 
 a draftsman and the average member of Congress, the 
 presumptions are all in favor of the former. But his 
 function in legislation ends with the drafting of the 
 bill. The function of recommendation belongs to the 
 President alone. In other words, department bills or 
 administration bills, by whomsoever drawn, should be 
 sent to Congress only by the President and only with 
 his explicit approval. 
 
 How and by whom shall they be received ? It would 
 be a simple matter for each house to provide by its 
 rules for a "Committee on Presidential Bills." 1 All 
 
 1 There is a precedent for the appointment of such a commit- 
 tee. At the opening of each session, each house appoints and 
 sends a committee "to wait upon the President and to inform 
 him that Congress is now in session and ready to receive any 
 communications he may desire to make." And so also, just 
 before the adjournment of Congress at the close of each ses- 
 sion, it is the custom of the Senate and the House to appoint 
 a committee "to wait upon the President and jnquire whether 
 he has any further communications to make to Congress." 
 Therefore it would only be enlarging upon an established usage 
 if a permanent committee in each house were appointed to re- 
 
i88 RELATION OF EXECUTIVE 
 
 such projects of laws should be sent from the executive 
 offices to the chairman of that committee in either the 
 Senate or the House (or perhaps to both simultaneous- 
 ly) and sent openly and as a matter of usual and for- 
 mal routine, and not by the devious hands of some 
 unacknowledged agent. And they should be sent to 
 no other person whomsoever. If an "administration 
 bill" or one "known to have the approval of the Presi- 
 dent" were offered in either house, that house should 
 refuse to receive it save at the hands of its proper com- 
 mittee. Or if that were too severe a measure to com- 
 port with senatorial courtesy, it should forthwith be 
 referred to the Committee on Presidential Bills and 
 not without some deprecation of the irregularity in 
 the manner of its introduction. 
 
 In the regular course it should be the duty of the 
 chairman of that committee to present to the house 
 every bill emanating from the President's office, and, 
 with the consent of at least a majority of his colleagues 
 on the committee, to move its reference to that one of 
 the standing committees to which it appropriately be- 
 longs. This determination of jurisdiction over a bill 
 is sometimes the subject of sharp wrangling in Con- 
 gress. It is to minimize this possibility that the pro- 
 posal is made that the motion for reference should be 
 made by the committee, supporting its chairman as its 
 spokesman. Indeed this is one of the reasons for hav- 
 
 ceive from the President all such communications as he might 
 choose* to make in the form of bills drafted in shape for enact- 
 ment. 
 
POWER TO LEGISLATION 189 
 
 ing a committee of several members instead of a soli- 
 tary though official mouthpiece for the executive. For 
 the collective force of a respectable committee might 
 very well prevail where the voice of an individual mem- 
 ber (perhaps not the most influential in the house) 
 would not rise above the din of contending claimants 
 for control of the bill. And for the same reason pro- 
 vision should be made that something more than a 
 mere majority should be required to change the desti- 
 nation of the bill as demanded by the committee. 
 
 But the work of the committee would not stop with 
 the proper reference of the bill. It might be ordered 
 in the rules of the houses that presidential bills should 
 be reported out within a certain limited time and that 
 they should have a privileged place upon the calendar. 
 It would be the duty of the committee to see that this 
 course was followed. It should be the guardian of the 
 bill (save for its discussion in the standing commit- 
 tee) until its final passage or defeat. Of course free- 
 dom of amendment need be in no way restricted. And 
 who would champion the bill on the floor? Perhaps 
 the chairman of the Committee on Presidential Bills. 
 But he might be hostile to it. Then it would easily 
 find some other defender. Have we not seen a bill, 
 favored by the administration, for a conscriptive mili- 
 tary service law discountenanced by the chairman of the 
 committee having it in charge, and taken up and de- 
 fended and put through by another member, himself 
 ranking with the opposing political party? The in- 
 quiry is pertinent whether the cabinet minister to 
 whose department the bill relates (who perhaps wrote 
 
190 RELATION OF EXECUTIVE 
 
 it himself) should be admitted to the floor to speak 
 upon it. But if the conclusions we reached in an earlier 
 chapter, where the whole subject of the participation 
 of the cabinet in the proceedings of Congress was con- 
 sidered in detail, possess any validity, they show that 
 the course here suggested would be unnecessary and 
 far too dangerous an experiment to be entered upon 
 without grave searching into its probable and ultimate 
 consequences. 
 
 It will be said that such a system of dealing with 
 administration bills as is here outlined would tend in- 
 evitably to vest in the executive a virtual monopoly of 
 the initiative in legislation, and thus to superimpose 
 the distinctive features of parliamentary government 
 upon a system which is in no way adapted to it, because 
 of the fixed tenure of the executive. Undoubtedly 
 there is that danger. But it is not so formidable as it 
 looks. For no immemorial usage has yet entirely 
 quenched the independent spirit of the American legis- 
 lator, however much circumstances may have bound 
 his hands. Say what one will, there are still, and there 
 always will be, senators and representatives who are 
 not content to be mere rubber stamps, nor merely to 
 register another's will. Somehow, and within what- 
 ever limits you set them, they will speak their minds 
 and cast their ideas in the form of bills, and struggle 
 courageously for their enactment. It is clear that the 
 congressman's individual power, and even his collec- 
 tive power, is waning. It will not be extinguished, but 
 it cannot be denied that it may decline to a still more 
 feeble glimmer, But if that is the price that must be 
 
POWER TO LEGISLATION 191 
 
 paid to set right the shams which we have too long 
 endured, let us not haggle about it. 
 
 Via antiqua tutissima. These proposals are not put 
 forward as an ideal solution of the problem of the re- 
 lation of the executive authority to the legislative 
 power, but only as a remedy for an admitted evil, if 
 indeed no other measures of correction will avail. At 
 least the solution would put us back upon a basis of 
 honesty. It would enable us to play the game openly 
 and aboveboard, with candor and self-respect, with- 
 out disguise or circumlocution, like men who love the 
 splendor of noon and shun the miasmatic mists of 
 twilight. 
 
 
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