to be the port of entry and delivery in Vermont.19 He was authorized and empowered to grant certain quantities of land to John Cleves Symmes and decide upon the limits and lines of boundary agreeably to a former statute.20 He was also granted power within limits to make such allowances to supervisors and collectors of revenue as he should deem reasonable and proper.21 Such were the authorizations of 1791 and 1792. In an act to regulate intercourse with the Indians, Congress authorized the President to have citizens removed from Indian lands; and to furnish friendly Indian tribes with domestic animals, etc., and temporary agents, not in excess of twenty thousand dollars per annum; and to have violators of the act arrested and tried.22 Because of the Algerian controversy, Congress authorized the Chief Executive to provide a specified number of ships, or to provide a naval force -in lieu of the said ships-not exceeding that directed by the act.23 Again, the Chief Magistrate was empowered to alter the place for holding a session of Congress if in his opinion an epidemic of a contagious disease warranted it.24 To him was also given supervision over the building of lighthouses, under contracts made by the secretary of the treasury with the President's approval, on Cape Hatteras and the Island of Seguin.25 He was also given a power to lay embargoes, a power which was so important that it will be set forth in full at the end of this section. He was authorized, in the recess of Congress, if the same should appear to him necessary for the protection of the United States, to build or buy, fit out, man, arm and equip, as many as ten vessels; and for that purpose to borrow as much as eighty thousand dollars.26 Also, Congress gave him power to erect new (revenue) districts and alter old ones as appeared, "in his judgment, expedient and necessary "; to allow further compensation to inspectors, etc., up to one-third more than 19 Ibid., 263. 20 Ibid., 266. 21 Ibid., 270. 22 Ibid., 329. 23 Ibid., 350. 24 Ibid., 353. was before allowed; and to provide officers of inspection in special cases, the expense not to exceed ten thousand dollars.27 Further, Congress enacted that he might allow to officers of inspection not more than two and one-half per cent of duties collected.28 It is interesting to note that President Washington was authorized to use land and naval forces in order to keep cruisers, etc., fitted out here from carrying on hostile action against a state with whom the United States was at peace, and to make foreign vessels depart when by the law of nations or treaties of the United States they ought not to remain.29 He was authorized to increase up to a certain amount the rations of soldiers on the frontier.30 He was again authorized, as above, to allow to officers of inspection not more than two and one-half per cent of the duties collected.31 Then comes the authorization to use such revenue cutters as dispatch boats “ as the public exigencies may require." 32 After declaring an embargo for thirty days Congress authorized the Executive "to give such instructions to the revenue officers of the United States, as shall appear best adapted for carrying the said resolution into full effect." No clearances were permitted to vessels "except ships or vessels, under the immediate direction of the President of the United States."33 The President was authorized, despite the embargo, to grant clearances to vessels then loaded, owned by citizens and bound for a port beyond the Cape of Good Hope.34 Thus ended the delegations of the years 1793 and 1794. 35 The first delegation of 1795 authorized the President to compensate inspectors, etc., and provide for incidental expenses, not exceeding five per cent of the total amount collected. He was empowered to reduce the weight of copper coins to a certain extent.36 He was granted authority to have twenty-four thousand acres surveyed on the Ohio River, to cause the French inhabitants of Gallipolis to be enumer 27 Ibid., 378. 38 Ibid., 378. ** Ibid., 384. 30 Ibid., 390. *1 Ibid., 399. 32 Ibid., 400. 33 Ibid., 400. 34 Ibid., 401. 35 Ibid., 429; see also ibid., 430-432. 3. Ibid., 440. ated, and to issue a patent for four thousand acres to John G. Gervais, and to distribute the remainder to the actual settlers of Gallipolis.37 "In cases connected with the security of the commercial interest of the United States, and for public purposes only," the President was authorized to permit the exportation of arms, cannon and military stores, "the law prohibiting the exportation of the same to the contrary notwithstanding." 38 The year 1796, which is the last year to be considered during the Presidency of Washington, witnessed the following enactments: Men were to be put on the invalid service list of the army "at such rate of pay, and under such regulations as shall be directed by the President of the United States for the time being." 39 Power was granted him to establish trading houses in Indian country, to appoint to each one agent, whose duties were to be regulated by the President, and to pay agents and clerks, not to exceed eight thousand dollars.40 Power also was given to have sold perishable material not wanted for completing certain frigates, and to have the rest of the surplus safely kept for future use. 41 The Chief Magistrate might cause new revenue cutters to be built to replace old ones, the money to come out of import and tonnage duties, and to auction off old ones.42 He was authorized to grant patents to purchasers of land in the Northwest; and to fix the pay of assistant surveyors, chain carriers and axe men, provided the cost of surveying should not exceed three dollars per mile.13 He was given various powers in relation to the Indians." He was allowed to direct revenue officers, and officers of forts and revenue cutters to aid states in the execution of quarantine and health laws."5 Finally, he was to appoint, direct and compensate (by not over fifteen thousand dollars) agents to investigate impressments of American sailors; and was empowered to appoint additional agents during the recess of the Senate.46 By far the most significant delegation" of this period was contained in a statute which may be set forth at length.48 Section 1 provides "that the President of the United States be and he hereby is authorized and empowered, whenever in his opinion the public safety shall so require, to lay an embargo on all ships and vessels in the ports of the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper. And the President is hereby fully authorized to give all such orders to the officers of the United States, as may be necessary to carry the same into full effect: Provided, The aforesaid authority shall not be exercised, while the Congress of the United States shall be in session: And any embargo, which may be laid by the President, as aforesaid, shall cease and determine in fifteen days from the actual meeting of Congress, next after laying the same." Section 2 provides" that this act shall continue and be in force until fifteen days after the commencement of the next session of Congress, and no longer." An analysis of this law shows that the power granted is extremely broad, the limitations being first, those set by the nature of an embargo, and secondly, those of time. The President is given full discretion as to whether and when an embargo be laid; as to whether such embargo be laid on all vessels in the ports of the United States, or on American vessels only, or on foreign vessels only, and if the latter which ones; and as to regulations governing the embargo, the continuance or revocation of the same, and the enforcement thereof. He is authorized to proclaim an embargo, to issue regulations in regard to it, to issue orders for its enforce 47 However, a few of the preceding examples are of some importance; though on the whole the outstanding feature of the situation is the fact that administration was little developed, and that federal governmental problems were so few and relatively so simple that delegations were not frequently necessary or often broad in scope. 481 Stat. L. 372, 1794. ment, and to revoke it. The only directions laid down as to the exercise of this great power are the very general phrases "whenever, in his opinion, the public safety shall so require," "under such regulations as the circumstances of the case may require," "whenever he shall think proper," and “all such orders as may be necessary to carry the same into full effect." The limitations as to time are: (1) that he shall not exercise the authority while Congress is in session; (2) that any such embargo laid by him shall cease to operate fifteen days after the opening of the session of Congress next after its proclamation; and (3) that the act is to expire fifteen days after the beginning of the next session of Congress. A comparison of this act with those passed by Congress during the War of 1917-1918 reveals the striking fact that the power here delegated is approximately as broad as in the later instances, with the single exception that the power here granted is to be exercised only when Congress is not in session, while in the war legislation of 1917 the plenary legislative authority is to be exercised regardless of the sittings of Congress. That this distinction is material is to be gathered from the fact that the earlier law provided for an emergency which the legislature would, because not in session, be unable to meet, while the later legislation is a frank delegation of discretion that the legislature might be expected to exercise. The delegations of the War with Germany are, therefore, more open to the accusation of constituting an abrogation by the law-making body of its legislative discretion. For it will be noted that one reason advanced for the permissibility of delegations to the other departments is that otherwise the legislature would be compelled to remain in continuous session." 2. Already in the administration of Washington Congress had laid an embargo; and once it had, as we have 49 As a matter of fact, however, the practical reasons that compelled delegations in 1917-1918 were just as real as those that compelled this delegation of 1794. It may be argued that the later delegations affected more fundamental' private rights. |