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information, and the procurement and transmission of the products of the arts, sciences, manufacture, agriculture, and commerce, from time to time, as he may think conducive to the public interest. It shall be the duty of all such officers to conform to such regulations, orders, and instructions.117

The President may by regulations, which he may modify from time to time, prescribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions and other military tribunals: Provided, That nothing contrary to or inconsistent with these articles shall be so prescribed: Provided, further, That all rules made in pursuance of this article shall be laid before the Congress annually.i

118

Under such regulations as the President may prescribe, and which he may from time to time revoke, alter, or add to, the commanding officer of any detachment, company, or higher command may, for minor offenses not denied by the accused, impose disciplinary punishments upon persons of his command without the intervention of a court-martial, unless the accused demands trial by court-martial.

The disciplinary punishments authorized by this article may include admonition, reprimand, withholding of privileges, extra fatigue and restrictions to certain specified limits, but shall not include forfeiture of pay or confinement under guard. . . .119

The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge and ability for the branch of service into which he seeks to enter; and for this purpose he may employ suitable persons to conduct such inquiries, and may prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the civil service.1

117 Ibid., 1752.

120

11 Ibid., 1342, amended, 39 Stat. L. 656.

11 Ibid., 1342; amended, 39 Stat. L. 667.

120 Ibid., 1753. See also ibid., 1547, 2058, 2132, 4228, 2071, 2114, 463, 465 2110, etc.

PART III

CONSTITUTIONAL CONSTRUCTION

CHAPTER V

THE CONSTITUTION AND THE ORDINANCE MAKING POWER: GENERAL VIEW

The law of England is divided into three parts, common law, statute law, and custom; but the king's proclamation is none of them.

The king by his proclamation cannot create any offence which was not one before.

-COKE.1 The statesmen of the Convention . . . made an enlarged copy of the State Governor, or to put the same thing differently, a reduced and improved copy of the English king.

-VISCOUNT BRYCE."

The founding fathers struck off the Constitution in 1787, but in so doing they merely made application to the peculiar problem with which they were faced of their experience as modified or enforced by their reading. In creating the

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1 12 Co. Rep. 74, 76.

The American Commonwealth (1912 edition), vol. i, p. 39.

That problem is most brilliantly discussed in Fiske, The Critical Period of American History. For an entirely different approach see Beard, Economic Interpretation of the Constitution of the United States. The truth lies in a synthesis of these two views. The men who organized the movement for the 'revision of the Articles of Confederation saw clearly that the growing anarchy and interstate friction made the thirteen struggling States a prey which, with continued disunion, some foreign aggressor would seek to devour. They were a group of conservatives who wisely desired to secure stability, protect private property, and organize national preparedness. To these ends a stronger central government was an essential means; and this meant among other things the creation of a real national Executive. Such an Executive must have adequate power without the opportunity of becoming a tyrant; must, in the apt phrase of the Federalist, be at once vigorous and safe (No. 70). The statesmen of 1787 were faced by a condition rather than a theory, and sought the middle course between autocracy and mobocracy.

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Every reader of the Federalist papers has direct evidence that at least some of the statesmen of the time knew Blackstone and

Presidency they drew upon their experience with executive power as wielded by king, colonial governor and state governor, and their experience without executive power in the prior steps toward union. Likewise they drew upon their reading about political theories, about ancient or foreign executives, and about English law and history. This was no less so with reference to the President's ordinance making powers than with reference to his other powers; though of course they did not think of his ordinance making powers as such. Throughout the range of executive powers the mental image which formed the ideal of the framers was primarily a composite picture of the Crown shorn of its mediaeval prerogatives and of the state governor freed from legislative domination. The product was an Executive at

Montesquieu. The debt of Jefferson to Locke is obvious, and is illustrated by the fact that the phrase of the Declaration of Independence "when a long train of abuses," is taken bodily from the Second Treatise. That they kept their eyes closely upon the new state constitutions is manifest from a comparison of the federal constitution with those documents. In a reply to Mason's objections to the Constitution Iredell said: "It seems to have been wisely the aim of the late Convention, in forming a general government for America, to combine the acknowledged advantages of the British Constitution with proper republican checks to guard as much as possible against abuses" (Ford, Pamphlets on the Constitution Published During Its Discussion by the People, 1787-1788, p. 351). In considerable measure, however, this English influence came indirectly through the then very recent state constitutions (Bryce, The American Commonwealth, vol. i, p. 30). On this whole question of the origin of the Constitution see ibid., chap. iii. There was little of Rousseau, much of Locke, in the American political theory of the time (Merriam, American Political Theories, pp. 9192). It is interesting to note that they read something of English constitutional development in Blackstone, Cooley's edition, p. 406 ff. Lord Bryce remarks that they thought of the English constitution in terms of the legal theory of it as set forth in Blackstone. They did not understand fully the beginnings of the modern cabinet system which in their own day was not thoroughly developed. Like language, law and political systems were, by being cut off from the main current of British life, turned into a new course; and the Americans either developed peculiar modes of expression and peculiar institutions of their own or retained the older English ways of language and politics after they had been outgrown in the mother country.

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Bryce, The American Commonwealth, 1912 edition, vol. i, p. 39. See on this whole problem C. C. Thach, "The Creation of the Presidency, 1775-1789," in Johns Hopkins University Studies in Historical and Political Science, Series xl, No. 4, passim.

once vigorous and safe. Colonial experience and the ideas of the Revolution produced a President with powers distinctly narrower than those of the English king;' while the danger to vested rights and order which resulted from mobocracy acting through too powerful legislatures produced a President with position and power distinctly broader than those of any single state governor. The lesson taught by this latter danger was emphasized by the situation which had existed in the earlier central organization of the Confederation. In this respect as in others the government under the Articles showed the men of the Philadelphia Convention what not to do."

The legal significance and practical advisability of turning to extrinsic evidence for the contemporaneous construction of the Constitution will be discussed in a later chapter.10 Such evidence will itself be introduced in connection with different constitutional problems as they arise. It will be convenient, however, to sum up at this point certain basic principles embodied in the Constitution, principles which hold true whether we seek in that instrument the intent of the framers or the meaning which practice and judicial interpretation have read into it. In a word, for the purpose of getting a bird's eye view we may give emphasis to certain undisputed aspects of the product of the Federal Convention of 1787.

A fundamental principle is that the President has no inherent powers, but is a mere agent to whom is delegated in the Constitution all the authority which he possesses.11

"The Federalist, No. 70.

In the convention debates Mr. Wilson, while supporting the monarchical idea of a single instead of a plural executive, "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace, &c." (Farrand, Records of the Federal Convention, vol. i, pp. 65-66). Thach, chap. i. Cf. Wilson, Division and Reunion, p. 12; cf. also the Federalist, Nos. 2-8.

9 Cf. The Federalist, Nos. 14, 21, 22.

10 Chap. vi.

11 Thus, as Professor Willoughby has said: "In republics the principle is fundamental that all powers of the government are

In this respect his position is exactly opposite to that of the Prussian monarchy in the period before 1918.12 Prussia had a constitution and the rule of law; but the theory was that the king was sovereign, and that the constitution was only an emanation of the will of the king,13 a self-imposed limitation by which out of the plenitude of his legal omnipotence he granted participation in certain governmental functions to legislative or other organs, which were thus created by his volition. By this theory, while the executive granted to the legislature the practically important function of determining the contents of bills, it was still the volitional act of the sovereign himself in promulgating such bills which gave such legislatively determined content the force of law.14 Also, the monarch had the legal right, even when he lacked the actual power, to repeal or retract the constitution; between which and ordinary statutory law there was not, in the absence of special provision to that effect in the instrument itself, any legally important distinction.15

Such a theory is untenable with reference to the Presidency, whatever view we take of che controversy which developed over the nature and source of the Constitution. Whether we consider that document as the creation of the peoples

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derived by grant from the people. This principle. is not inconsistent with the maintenance of monarchical rule. It is inconsistent only with the doctrine that the King rules by reason of an original personal right, and that he possesses other than delegated powers (Prussian Political Philosophy, p. 94; see all of chap. v). He proceeds to cite the Belgian government as one having at its head a monarch while at the same time having it specifically stated in its constitution that "All powers emanate from the people," and that "They shall be exercised in the manner established by the constitution."

12 Borgeaud, Adoption and Amendment of Constitutions, p. 43; Garner, Introduction to Political Science, p. 547.

13 Cf. the wording of the preambles of the old Prussian and the Japanese constitutions with the Bills of Rights of our state constitutions and the preamble of the Constitution of the United States. Both the first two have governments of law, but the régime of law is by edict of the sovereign (Willoughby, Prussian Political Philosophy, chap. v).

14 Von Rönne, quoted by Willoughby, ibid., chap. v.

15 Laband, Staatsrecht des deutschen Reiches, quoted by Borgeaud, p. 68.

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