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gerated. In fact, as one runs through the volumes of the ( statutes-at-large, one finds that only in connection with three great crises has Congress made delegations of legislative powers a prominent feature. These crises were the periods of the Napoleonic Wars, the War of Secession, and the War with Germany. In general, our laws have been based upon a conception of the relation between legislation and administration entirely different from that in vogue in Europe. There, general legislation passed with the knowledge that the Executive has the independent power to supplement statutory generalizations, is the normal method.* With us it is conceived to be the function of the legislative department to define with completeness and in concrete terms the right and duties which are to be created, and not simply to set forth a general policy to guide the Executive. The enactments of Congress have accordingly been characterized by concreteness, specificness, explicitness, detail, the limitation of generalities by provisos, and the anticipation (so far as possible) of all future contingencies. Sometimes, to be sure, abstractions appear in the laws; but until recently the interpretation of these was left in the last analysis to the courts in the decision of controversies, rather than to the Executive by the issuance of ordinances to meet concrete conditions."

Nevertheless, from the Presidency of Washington to that of Coolidge the Chief Magistrate has issued ordinances under both Congressionally delegated and constitutional authority, and affecting the interests of private persons as well as the duties of officials.) The Proclamations of the President and his Executive Orders embody various sorts of executive action, but among them are many ordinances in the technical sense as hereinafter defined. Certainly since Congress in 1917-1918 endowed President Wilson with multi

The present writer has made a fairly careful study of the volumes of the statutes-at-large covering the period from 1813 to 1887 with a view to checking up on the frequency of delegations of ordinance making powers to the President.

Lowell, The Governments of France, Italy, and Germany, 44-45, 139-140, 200.

Freund, "The Substitution of Rule for Discretion in Public Law," in American Political Science Review, November, 1915.

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tudinous extraordinary powers involving the exercise of exceptionally broad discretion, the general public as well as the closeted scholar has begun to realize that it is an unreal fiction that the President cannot legislate.

Then, too, although the Constitution vests the legislative power in the Congress, it delegates to the President powers which are, or involve, ordinance making as that function will be defined. The most striking example of this is found in his power by and with the advice and consent of the Senate to make treaties; for in our system treaties are the law of the land, and in them we have executive legislation without the consent of the House of Representatives. Again, while individual pardons are executive acts of clemency, amnesties or general pardons are law in substance though not in form. As commander-in-chief, also, the Chief Magistrate issues administrative Regulations to the army and navy, and governs enemy territory conquered in time of war. As the possessor of the executive power and of the duty to take care that the laws be faithfully executed, he may issue administrative directions to his subordinates to guide them in the exercise of the powers given them by law. Finally, the President derives from his power and duty to see to the execution of the laws, occasional powers of legislation in American dependencies in carrying out treaty obligations of the United States, or in regions like the Canal Zone, where in order to carry out the statutory mandate to build the canal, President Roosevelt had to govern the Zone when Congress failed to give him specific power to do so.

The following study of the ordinance making powers of the President will embrace an examination of the subject from the viewpoints successively of analytical jurisprudence, the historical method, constitutional law, political science, and administrative technique. First we shall consider the word ordinance as a technical term and establish its meaning as a distinct category of general jurisprudence. In this connection an effort is made to analyze the ordinance making

40 Stat. L., passim. Cf. Rogers, "Presidential Dictatorship in the United States," in Quarterly Review, January, 1919.

power in its relation to the other chief aspects of the governmental process. Then follows a section in which ordinances are distinguished from other products of governmental activity with which they might be confused, and a section in which ordinances are classified from four distinct points of view. These portions of the treatise comprise Part I.

After this Part on Analytical Jurisprudence comes, in Part II, an outline of the main periods into which the constitutional history of the practice of executive legislation falls.

Part III deals with problems in constitutional law which are raised first by the delegation to the President by Congress of ordinance making powers, and secondly by the exercise by the President of such powers under the functions which are by the Constitution directly vested in him. Especial consideration is given to such questions as: By what construction of the supreme law can delegations be reconciled with the separation of powers? What is the scope and what the limitations of this power of Congress to delegate to the Chief Magistrate subordinate powers of legislation? Can Congress make the violation of Presidential ordinances a penal offense? Can it vest in the Executive final discretionary determination of the contents of a rule having the force of law? What is the relation of the ordinances of heads of departments and commissions to the power of the President as the administrative head? What independent or constitutional powers of the President are or involve ordinance making?

Part IV is concerned with the political aspects of the power under review: What is the importance of the emergency ordinance making power, of the power to issue administrative ordinances, of the power of co-legislation? Why should the determination of rules of law which at one and the same time affect classes of private citizens and "give manifestation to some original idea" be left almost exclusively to the popular assembly? What are the potentialities of administrative co-legislation? What are its political im

plications for democracy and for the theory of the relation of the executive and legislative departments to each other? How can this function be regularized and systematized in such a fashion as to place it upon an effective footing and substitute something like government by science for government by opinion or political manipulation? What are the proper methods of popular control of the organs which elaborate complementary ordinances? What are the means by which the individual may be protected from illegal exercise or actual usurpation of ordinance making powers? Such are some of the questions to be considered.

The Appendix treats of matters of technique. The forms of ordinances, and the methods of preparation and of publication, are among the points discussed.

Some of the results which will follow from the examination of the Presidential ordinance making power may be summarized as follows:

1. It will reveal a unity in powers which have heretofore been studied separately. In this unity they will all be seen in a new light and from a novel angle.

2. It will for the first time show that there is no irreconcilable contradiction between the delegation of ordinance making powers to the President and the constitutional doctrine of the separation of powers.

3. It will dispel the myth that under the Constitution the Chief Executive has no independent legislative powers.

4. It will establish at least one precisely defined category of American jurisprudence, and emphasize the value, for the clearness of legal thinking, of working out, by scientific analysis of the material furnished by American public and private law in action, a complete system of accurate juristic terminology.

5. It will throw light upon the vital problem of the relation in a governmental system of the executive department to legislation.

6. It will emphasize the need for the regularization and

systematization of the preparation and publication of ordinances."

7. It will indicate that, while in modern constitutional governments it is a basic principle that legislation affecting private rights be enacted by or with the consent of the representative assembly, nevertheless more or less numerous exceptions have in all governments to be made by constitutional or statutory provisions or both.

It will suggest a method by which modern regulation of industrial and social problems can be mapped out by the legislature and then worked out in detail by executive agencies acting under the influences both of popular control and of scientific knowledge.

The best discussion of this problem is that in the article of Professor Fairlie, “Administrative Legislation," in Michigan Law Review, January, 1920.