In actuality these two kinds of ordinances are inextricably inter-related. The creation of private rights and duties inevitably gives specific content to the general duties which are assigned to administrative officials; while the regulation of official conduct necessarily affects at least indirectly the private interests which are made subject to that conduct. In fact, one finds the same statute prescribing rules of social conduct, and the duties of one or more officials in connection with the administration thereof, or else laying down powers of officers and making it the duty of all private persons concerned to obey the orders of such officers issued in pursuance of such powers. The two things are but opposite sides of

the same shield.40

Here again we may pause to give at random illustrations from the ordinances of the President. In 1794 Congress delegated to President Washington both the power to lay an embargo during the impending recess of that body and the authority to issue the orders necessary for the administrative enforcement, presumably by the navy, of such embargo."1 The President did not find it necessary to exercise the power thus delegated; but if he had, the proclamation ordering the embargo and setting forth the classes of vessels to which it applied would have been material law, while the executive orders for the prevention of violation would have been material ordinances. The amnesty proclamation of President Lincoln, which was authorized by Congress, but which he might have issued under his pardoning power alone, was material law; 42 while the following Executive Order of President Roosevelt was a material ordinance:

EXECUTIVE ORDER.

No officer or employee of the Government shall, directly or indirectly, instruct or be concerned in any manner in the instruction of any person or classes of persons with a view to their special

the state. The official in the first case, and the superior official in the second, act merely as the agents through whom the will of the state arrives at concrete formulation.

40

4o A like mutuality subsists between the rules prescribing the powers of superior officers and those setting forth the correlative duties of their subordinates.

411 State. L. 372.

4 See 13 Stat. L. 737.

preparation for the examinations of the United States Civil Service Commission.

The fact that any officer or employee is found so engaged shall be considered sufficient cause for his removal from the service.

The White House,

October 13, 1905.

THEODORE ROOSEVELT.

This order, which is the third in the first volume of the United States Executive Orders, is an illustration of a material ordinance which concerns the general conduct of officials rather than their functions in immediate connection with the enforcement of law. It applies to all officers and employees of the Government, and is thus a uniform rule of governmental conduct; while the sanction lies in the President's power of removal.

Our third point of departure is the question: does the ordinance under consideration consist of an independent regulation or does it merely complete or supplement the terms of some statute? If the former, the process by which it is evolved is an exercise of full or almost full discretion in the premises; if the latter, the process involves discretion as to subordinate premises only. By almost full discretion in the premises is meant discretion which is limited only by general constitutional provisions, such as the prohibition of the taking of life, liberty or property without due process of law," or the clause of the Constitution which states that "all duties, imposts, and excises shall be uniform throughout the United States." 45 In England, to be sure, there is no written constitution, and a legally omnipotent parliament has with reference to all matters a theoretically full discretion in the premises. In the United States, on the other hand, there is no body or person with unlimited discretion with reference to any matter whatsoever. Perhaps the broadest discretion under our system is seen when Congress is legislating for unincorporated territories and when

43 See Appendix.

"Constitution of the United States, Amendments v and xiv. 45 Ibid., art. i, sec. viii.

** Dicey, Law of the Constitution, chap. i.

the President is legislating for enemy territory conquered in time of war. In the former case only the 'fundamental guarantees of private rights apply, while in the latter case the constitutional limitations mainly embody those established by the law of nations.48

49

We have already described the two classes of ordinances which are under discussion as legislative and ordinance making (in the material sense) on the one side, and co-legislative and co-ordinance making on the other. Laws and ordinances, in the acute words of Count Ito, give manifestation to some original idea; while co-laws and co-ordinances are best described in the apt phrase of the French as une législation sécondaire et dérivée.50 The distinction is important both legally and politically; legally because Congress may delegate to the Executive co-legislative power but not legislative power without violating the principle delegatus non potest delegare; 51 politically because one may justify the constitutional or statutory delegation of a power of issuing completing ordinances while condemning at the same time the practice of giving to the Executive the authority to issue self-contained legislative measures. The latter power may wisely be allowed to the President only in emergencies, in connection with the organization and regulation of the administration, and in special cases. Yet it is ordinarily better to have the Executive supplement legislative abstractions by complementary regulations or by individual discretionary determinations than to have the legislature either attempt the detailed regulation of complex social and industrial problems or leave it to juries to give varying interpretations to statutory abstractions.

An example of an ordinance which embodies a law in the material sense is the President's order establishing a

47 Downes v. Bidwell, 182 U. S. 244.

48 N. Orleans v. N. Y. Mail S. S. Co., 20 Wall. 387. But see also Dooley v. United States, 182 U. S. 222.

49 Commentaries on the Constitution of the Empire of Japan, pp. 18-20. This work gives an exceptionally acute and concise analysis of the ordinance making power.

50 Cf. Duguit, Droit constitutionnel, deuxième édition, sec. 115. 51 See the cases cited in chapter vi below.

schedule of tariff duties in Porto Rico during the occupation of that island in the Spanish War; 52 while in the Army Regulations of the President we have perhaps the nearest approach in ordinary times to ordinances embodying material ordinances.53 For it should be clear that the distinction between laws and co-laws is not a rigid one, especially in the United States, where there can be no laws in the absolute sense. On the other hand, co-laws and co-ordinances are the normal products of Presidential ordinance making; and examples are not difficult to find. Thus, many of the proclamations of President Wilson in conformity with the wartime legislation of the sixty-fifth Congress embodied just such products.54 His proclamation fixing the minimum price of wheat was a co-law,55 while his executive orders under the Overman Act were ordinances.56

Of completing ordinances there are several kinds, corresponding to the several elements involved in full discretion in the premises.57 In other words, supplementary ordinances vary in accordance with the nature of the element the abstract expression of which they concretize. In one class the Executive issues an order setting forth in concrete terms the circumstances under which the rule of law in question is to go into effect, or more frequently issues an order stating officially that the circumstances anticipated in the legislative phraseology do now exist.58 Still another class consists of

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

5 These are issued now by virtue of statutory as well as constitutional authority. See 18 Stat. L., 337.

55 40 Stat. L., part 2, 1749-1751. For the delegation authoriz ing this co-law, see 40 Stat. L., part 1, 281.

For the act itself see 40 Stat. L., part 1, 556.

57 For these elements see chapter ii above.

58 Of course, such legislative phraseology must be sufficiently abstract, so that the Executive decision involves subjective evaluation, not a mere determination of 'fact' by the application of objective standards; else there would be no discretion involved (See the definition of discretion' in chap. ii). Furthermore, the discretionary declaration of the Executive must have the effect, under the statute, of bringing the rule into effect with reference to a whole class of persons, not just one individual at a time; else it would be a 'sub-legislative' rather than a 'co-legislative' act.

those ordinances which complete the statutory definitions of the rights and duties to be created," the class or classes of persons to whom they are to attach, or the penalties which are to be inflicted for their violation.60 Finally, a third class comprises the ordinances which prescribe the administrative 61 and judicial processes for carrying out the ordinances and enforcing them in case of disobedience. German jurists distinguish the last two classes by the terms Ergänzungsverordnungen and Ausführungsverordnungen, respectively. The former are complementary to the contents of a statutory rule which prescribes in general terms rights and duties; the latter either originally or in a supplementary fashion deal with the means of executing the said rule. It may be added that the question whether there shall be any action taken at all, by way of creating either immediately effective or anticipatory rights or duties, is a matter which must, in the

62

An admirable example of the difference may be had by comparing the nature of the Proclamation' to be issued by the President under sec. 3 of the tariff act of October 1, 1890, 26 Stat. L., 567, and the notice' to be issued by the Secretary of War under sec. 18 of the river and harbor act of March 3, 1899, 30 Stat. L., 1121, 1153. The two sections were discussed in Field v. Clark, 143 U. S. 649, and in Union Bridge Co. v. United States, 204 U. S. 364, and Monongahela Bridge Co. v. United States, 216 U. S. 177, respectively. 5 Buttfield v. Stranahan, 192 U. S. 470.

59

60 Under our system, it would be unconstitutional for Congress to prescribe that there should be a 'reasonable' penalty for the violation of a statute or ordinance, leaving it to the President to concretize that legislative abstraction. It might, perhaps, prescribe specific limits, and leave to him the decision whether violation should be punishable at all, and if so what the penalty (within those limits) should be. I refer to a decision for all future cases, not in particular instances. But such delegations are practically never made in practice. As for particular or individual acts, the President through his power of pardon can release a person from penalties; while the courts are often left to decide (within limits) the quantum of the punishment in individual cases (Pound, An Introduction to the Philosophy of Law, pp. 134-135). Such individual decisions involve, however, 'sub-legislative' discretion only. 61 See 1 Stat. L. 372. For a classification of different types of 'delegated legislation' in England, see Carr, Delegated Legislation, chap. ii.

James, Principles of Prussian Administration, pp. 156-158. They are termed completing ordinances, and executing ordinances, respectively. The former are supplementary to the contents of the substantive part of the statute; the latter are supplementary to the adjective part or else originally supply the adjective part.