times it falls out for one reason or another that the legislature expresses its rules in terms of abstractions which the Executive is to complete, or perhaps leaves it to the discretion of the Executive to determine the circumstances under which the rules are to become operative. In the one case the administration may be given the function of rendering concrete the legislative abstractions by concrete 'rules'; in the other case its part may be not to prescribe a completing rule but to proclaim formally that a legislative rule is to come into operation. To make the matter clear we may set forth the main elements involved in full discretion in the premises. These are: (1) the decision as to whether any regulation of the given phenomena is expedient; (2) the determination of what substantive legal rights and duties shall be created; (3) the setting forth of the time when or the circumstances under which the rights and duties are to become operative; (4) the designation of the class or classes of persons to whom the rights and duties shall be applied; (5) the definition of what penalty (if any) shall be inflicted for the violation of the rights and duties; and (6) the prescription of the administrative and judicial means which shall be employed in enforcing the rights and duties. Discretion as to any phase of an enactment save the first may be left to the Executive; and in such case we have co-legislation, provided the product of such discretionary determination applies to persons generally or to persons of a class or to a single official in connection with general duties.

Formerly the American legislatures left their legislative abstractions to be interpreted by Mr. Dicey's twelve shopkeepers. Nowadays they are more apt to authorize the appropriate administrative officer or commission to render such abstractions concrete by the issuance of uniform and concrete rules and regulations. The body of rights and duties does not come from the legislature complete, but is supplemented by complementary ordinances translating the legislative abstractions into concrete terms.54 As yet

53 The Law of the Constitution, 8th edition, p. 242.

" An example of concretizing ordinances was involved in the case

55

the potentialities of this practice have scarcely begun to be realized, and the discretionary functions of administrative tribunals often have more of an executive than a legislative complexion. Yet the principle of administrative cooperation in the process of legislation has latent possibilities which are bound to be developed; and for this reason emphasis should be given to its existence even now. It must be added that in the field of administrative organization and regulation the same principle applies. In fact it is probably both constitutional and wise to carry the principle much further here than in the sphere of legislation in the material sense of the word. This raises the whole question 'Who should organize the administration?' 56

It must not be thought, however, that all creations of rights and duties can, or at any rate do, take the form of the enactment of uniform rules. Because, as Jellinek points out,57 uniformity is possible only where there are uniformities in the phenomena to be regulated, therefore there are in all governments cases where it is manifestly out of the question to attempt to realize justice by the application of uniform rules to situations no two of which are even approximately alike. Then, too, the principle of uniformity is not always applied where it might be. Where the discretionary creation of rights and duties of particular persons crystallizes into recognized types of action that are independent of legislation, we may term the acts involved executive.' An example is a pardon or a private act of a legislative assembly. Where such particularized discretion is rather incidental to

6

of Buttfield v. Stranahan (192 U. S. 470). An example of an ordinance issued under an abstract statement of the third element of full discretion in the premises was involved in Field v. Clark (143 U. S. 649).

"See for example, the power given the Interstate Commerce Commission in 24 Stat. L. 384, as amended by 34 Stat. L. 589, 36 Stat. L. 551, and 40 Stat. L. 272. See Compiled Statutes, sec. 8583.

56

5 Cf. Blachly, "Who Should Organize State Administration?" in Southwestern Political Science Quarterly, September, 1923; Mathews, State Administrative Reorganization," in American Political Science Review, August, 1922.

57 Gesetz und Verordnung, p. 238.

the administration of a given statutory rule, we may denominate it sub-legislative.' Likewise, we may have particular discretion with reference to a governmental official instead of a private person. This we may call, for the want of a better name, an official order.' Such is the provision that a named official give bond, as also are appointments and removals where the appointing and removing officer is not rigidly bound by the merit system.58 The ideal is everywhere uniformity, but only rarely can the pardon be discarded for the amnesty, and only gradually in the United States is a uniform merit method being substituted for the arbitrary, particular action of the spoils system. There will always be need for what Dean Pound has aptly called individualization in the law.60

Here, then, are the main phases of the functioning of government in the modern constitutional state. We distinguish certain processes,' which culminate in types of governmental acts.' Most of such acts result in corresponding governmental products.' Thus we find that the legislative process includes such preliminary matters as committee hearings, the adoption of rules of procedure, and parliamentary debates thereunder. The legislative act is the final authoritative act of government which makes law what is not-law.

58 As an example of an 'official order' we may cite the following letter: "Executive Mansion, "Washington, D. C., May 3, 1899. "Sir: You are hereby removed from the office of general appraiser of merchandise, to take effect upon the appointment and qualification of your successor.

WILLIAM MCKINLEY."

59 Of course, no two cases are ever exactly alike. The 'event' never repeats itself. But the law can and does select certain important characteristics which are, roughly speaking, recurrent, the uniform rules to be applied whenever those characteristics are found to be present.

60 An Introduction to the Philosophy of Law, chap. iii. Mr. Pound is referring primarily to individualization through the judiciary, but he refers to administrative tribunals as one agency "for individualizing the application of law" (pp. 129-130). It would seem, moreover, that the judgments of courts are executive' or 'sub-legislative' rather than 'judicial' acts in those cases on which stress is laid in Cardozo, The Nature of the Judicial Process, Lecture III.

The result or product of such an act is, of course, a law.61 In like manner we have administrative acts, which may be ministerial acts (physical) or administrative determinations. A judicial act is the rendering of a judgment in a question of jurisdiction. Similarly we have the ordinance,62 prescribing rules of governmental as distinguished from social conduct, and co-laws and co-ordinances to supplement and concretize legislative and ordinance making abstractions. Outside the reign of law and standing as exceptions thereto are executive orders and official orders; while sub-legislative orders and sub-ordinance making orders issue in the one phase of administration proper which is discretionary. These are not distinctions of American constitutional law, to be sure. Law as defined above is defined in the material sense of the term. The same is true of ordinance and the rest. Now definition in the material sense looks to the nature of the process and of the result and not to the character of the performer of the act. That is said to be a formal definition which is based upon the latter criterion.63 Thus we are taught in the text books that the separation of powers is a fundamental principle of American government and con

61 "La loi est une règle impérative ou prohibitive qui statue non dans un intérêt particulier, mais dans l'intérêt commun, non à l'égard d'un individu isolé mais à l'égard de tous, pour l'avenir et à toujours (Esmein, Eléments de droit constitutionnel, 2e édition, p. 10).

6 The difference between law and ordinance in the material sense is the difference between Rechtsvorschrift and Verwaltungsvorschrift (Laband, Deutsches Reichsstaatsrecht, sec. 16).

According to Jellinek, it was Laband who first raised to a sharp juristic formulation the contrast between law in the material and in the formal sense (Gesetz und Verordnung, p. 252). See Laband, Staatsrecht des deutschen Reiches, vol. ii, p. 59 ff., and his Deutsches Reichsstaatsrecht, secs. 15-16, for his distinctions between formal and material law, and between formal and material ordinance. The writer has found helpful summaries of the German theories on these matters in Boelling, Das Recht der Prüfung von Verordnungen nach dem Staatsrechte des Reiches und Preussens, 1912, sec. 2, and Schmidt, Das Verordnungsrecht des Bundesrates des deutschen Reiches, 1913, sec. 11. Cf. with the theory of the text the brilliant analyses of the problem of classification of governmental functions in Green, "The Separation of Governmental Powers," in Yale Law Journal, February, 1920; and Brown, "The Separation of Powers in British Jurisdictions" in Yale Law Journal, November, 1921. The writer is in debt to both these authors.

stitutional law. We are further taught that, according to that principle, the three phases of the governmental process (namely, the making, executing, and construing of the law) should be and in our system are placed in separate and coordinate departments (namely, the legislature, the executive, and the judiciary). Hence, in the formal sense of the Constitution, the three kinds of governmental acts are legislative, executive, and judicial. Any act of Congress is formally a law, whether such act embody law in the material sense,** ordinances in the material sense,65 or private acts which are executive decrees in the material sense." 66 By the same token we describe as executive in the formal sense Presidential legislation levying under constitutional authority tariff duties in conquered enemy territory in time of war,67 wartime Presidential Proclamations prohibiting under authority from Congress the exportation of certain articles to certain countries,68 and Executive Orders prescribing under Congressional delegation the duties of United States consuls.69 The term ordinance is unknown to our constitutional law in its formal as well as in its material meaning.

Yet what are the facts? Government in action and constitutional law in the concrete are more varied than the opening sentences of the first three Articles of the Constitution would indicate. The traditional dogma of the separation of powers is an over-simplification of the governmental process as it actually takes place and as it is recognized by the courts. The variety and complexity of that process is hidden by the confusing use of a term like law without reference to content. The word as used in the United States covers at once too much and too little.70 This is so even if

• Such as the Sherman Anti-Trust Act.

65 Such as the act creating and organizing any of the Executive Departments and prescribing its functions.

Such as the grant of a pension to a named individual.

67 See Dooley v. United States, 182 U. S. 222.

68 40 Stat. L., part 2, 1746-1747.

❝ Embodied in the Consular Regulations' issued under Rev. Stat., sec. 1752.

70 It covers too much because it includes statutes which organize the administrative services and grant money to individuals; too