with the working committees at Washington. However important it may be to push through rapidly some piece of legislation, it will be antagonized with every kind of domestic question, as well as with the affairs of Porto Rico, Hawaii and Nicaragua, not to speak of the oppressed of other countries who may receive legislative sympathy. Deadlocks must thus be expected, even in the present unusual situation, when the President has a working majority of supporters in both branches of Congress. It is quite possible that this situation will terminate on March 3d, 1903, and that we may enter another period of normal legislative deadlock, like that which lasted with slight interruption from 1875 to 1897. If the Spooner bill be passed, it will be within the power of the present and each succeeding President to keep a commission of trained experts at Manila, who may continue to legislate for the benefit of the Philippine Islands until the inhabitants of those islands are themselves prepared to take up the work, and then depute to a native or partly native assembly such portions of the legislative power as may be best, subject, of course, to the power of Congress to step in and establish a permanent territorial government in the islands.

Third, if Congress, deeming it inadvisable at present to grant legislative autonomy to the islands, attempts to do what Parliament has never attempted to do, namely, provide the necessary legislation itself, then we must be the sufferers, for the proper discharge of the duties thus assumed will take up months of every congressional session, and measures in which we are more immediately interested must stand aside, just as at the last session of Congress the Spooner bill, although it came to nothing, crowded out the Nicaragua Canal bill and other measures of public interest. There is certainly considerable force in the contention that it would be better for us, as well as for the Filipinos, if President McKinley until 1905, and his successor thereafter, whoever and of whatever party he may be, can have the sole power and sole responsibility of legislating for these islands.

But can this power and this responsibility be placed upon them?

Our government is divided into three branches, execu

tive, legislative and judicial. Its theory is that each branch shall perform its own functions, and not delegate them to the other. The maxim that the Legislature cannot delegate the power to make laws is as old as Locke.1 Judge Cooley who has treated it more fully than any other text writer of authority, says: "One of the settled maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power. of the State has located the authority, there it must remain, and by the constitutional agency alone the laws must be made until the constitution itself is changed. The power to whose judgment, wisdom and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judg ment, wisdom and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.""

4

The United States Supreme Court has recognized the maxim from an early date, and it received the endorsement of all the judges in Field vs. Clark, the leading case on this subject. Justice Harlan said: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Justice Lamar said: "That no part of this legislative power can be delegated by Congress to any other department of the government, executive or judicial, is an axiom in constitutional law, and is universally recognized as a principle essential to the integrity and maintenance of the system of government ordained by the Constitution. The legislative power must remain in the organ where it is lodged by that instrument." 5

An exception may be claimed to exist here, because

1 66 The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, Sec. 142.)

2 Cooley's Constitutional Limitations, 6th ed., p. 137.

Congress can concededly delegate to the President, to Cabinet officers or to the courts the power to make mere "rules and regulations," according to our current phraseology; while the right to legislate for the Territories is commonly attributed to the constitutional provision granting power to Congress to "make all needful rules and regulations respecting the territory or other property belonging to the United States." 1 There has always been doubt, however, whether this provision has any application to territory acquired since 1789. And the words "rules and regulations" have always been treated in the practical construction of the Constitution as the equivalent of "statutes." Provisions for the Territories have commonly been inserted in statutes mainly intended for the States. Moreover, this special power is expressly confided to Congress as fully as is the general power of legislation, so that if one power can be delegated to the President, it would seem that the other can be delegated to him also.

2

But while the United States Supreme Court has at various occasions recognized the general principle that legislative power cannot be delegated, it has never yet found it to be applicable to any case that actually came before it for decision; and while the principle as a general principle has been generally recognized in the State courts, the actual number of statutes which have been by them declared unconstitutional is but small, and even of these decisions a majority have either been overruled, or generally disapproved, upon the point decided. In fact, the two cases which Judge Cooley in his shorter work refers to as the leading applications of this constitutional principle, have

1 Constitution, Art. IV, Section 3.

2 American Insurance Co. vs. Canter, 1 Pet., at pp, 542-3, 546; United States vs. Gratiot, 14 Pet., at p. 537; National Bank vs. Yankton, 101 U. S., at p. 132. The fullest judicial treatment is in Dred Scott vs. Sandford, 19 How., at pp. 432-447, 500-515, 604–615.

3 Wayman vs. Southard, 10 Wheat., 1, 42, per Marshall, C. J.; Bank of United States vs. Halstead, Id. 51, 61; In re Rahrer, 140 U. S., 545, 560; Field vs. Clark, supra.

4 Cooley on the Constitution, 3d ed., p. 111, citing Barto vs. Himrod, 8 N.Y., 483 (declaring a referendum to the people of the entire State invalid), and Rice vs. Foster, 4 Harringt., 479 (prohibiting local option laws, and similar instances of a referendum to the people of a county or municipality). The other case cited is a mere dictum, the application of the principle being denied.

both met with a great amount of disapproval by subsequent courts and writers, including Judge Cooley himself.1 The decisions which were the original supports of the doctrine have thus been knocked from under it. New applications of the principle are still occasionally made by the State courts, however, 2

In one of the earlier cases upon the power to delegate legislative authority, Chief Justice Marshall said that "the precise boundary of this power is a subject of delicate and difficult inquiry," and subsequent adjudications, while proving the delicacy and difficulty of the inquiry, and extending to some extent what was at that time supposed to be the probable boundary of the power, have failed to locate the boundary even approximately. The question has several timès since Field vs. Clark been elaborately argued before the Supreme Court of the United States in cases of importance, but the court has each time found some other point upon which the decision might turn.4

Statutes like that considered in Field vs. Clark, and statutes submitted to the referendum, are enacted by the legislature in complete form, and await only the executive decision or the popular vote to go into operation. But statutes which delegate full legislative power--power to draft the law as well as to give it operation—are also familiar.

1 See Cooley's Constitutional Limitations, 6th ed., notes to pp. 142-4, approving passages quoted from State vs. Parker, 26 Vt., 357, and Smith vs. Janesville, 26 Wis., 291. The Barto case has some support outside of New York, but there is now an immense weight of authority against the Rice case.

2 Adams v. Burdge, 95 Wis., 390; Dowling vs. Insurance Co., 92 Wis., 63; O'Neill vs. Insurance Co., 166 Pa. St., 71; Sanders vs. Southern Electric Ry. Co., 147 Mo., 411, 426–7.

3 Wayman v. Southard, 10 Wheat., 1, 46: “There is perhaps.no class of questions ever presented for judicial consideration which involve more real difficulty, or leave greater room for the mind to remain in doubt" (In re Oliver, 17 Wis., 681). "The great difficulty exists in the attempt to fix on the precise boundary line between legislative and executive powers in their practical operation. This is not possible. You might attempt the search for the philosopher's stone, or the discovery of the perpetual motion, with as much prospect of success (Mr. Giles, of Virginia, in the Senate, Annals of Congress, Dec. 21, 1808, p. 259).

United States v. Rider, 163 U. S., 132; Lake Shore Railway v. Ohio, 165 U.S., 365, 368; Cruickshank v. Bidwell, 176 U. S., 73; Rider v. United States, 178 U. S., 251, 258-9; see also United States v. Keokuk Bridge Co., 45 Fed. Rep., 178; United States vs. Rider, 50 Fed. Rep., 406; United States v. City of Moline, 82 Fed. Rep., 592.

3

Thus, the legislature, after indicating the general features of a proposed system of legislation, may delegate the right to work out the details, as by authorizing an executive department to adopt regulations,1 or by authorizing the judiciary to adopt rules of practice. It may delegate to the officers of a territorial subdivision or municipality very wide powers of legislation for purely local purposes. Nor is Congress confined to the Executive and Judiciary in delegating the power to fix the details of legislation. It may permit such subjects as ascertaining the proper qualifications for transacting business requiring professional skill to be referred to official associations of persons learned in the law, in medicine, or in other skilled vocations. 4

Broad powers are delegated to Territorial Legislatures, but this is the case also with legislatures of municipalities. It is not essential that a territory, or that a city, should have an elective legislature; but it would be a novelty to delegate the whole legislative power either to a President or to a governor, to be exercised at his discretion through such forms as he might select. In granting all legislative, as well as executive and judicial, authority over the Philippines to the President, as the Spooner bill seems meant to do, it is without precedent. Its introducer said indeed: "It is fashioned after the Louisiana bill. It is fashioned after the Hawaiian resolution." The present bill is to a considerable extent fashioned after the bill of a century ago; but with differences that are radical, as

1 In re Griner, 16 Wis., 423, and precedents cited; United States vs. Bailey, 9 Pet., 238; Caha vs. United States, 152 U. S., 211, 219; United States v. Ormsbee, 74 Fed. Rep., 207.

2 Wayman v. Southard, 10 Wheat., 1.

3 Paul vs. Gloucester County, 50 N. J. Law, 585, 600; 1 Dillon on Municipal Corporations, Sec. 308.

Scholle vs. State, 100 Md., 729, and cases cited; Hewitt vs. Charier, 16 Pick., 353; see Dent vs. West Virginia, 129 U. S., 114, 122; State vs. Heinemann, 80 Wis., 253, 257-8. Standards of importable drugs have for fifty years past been fixed in part by foreign pharmacopoeias (U. S. Rev. St., Sec. 2935).

5 See 1 Stat., 51, n. 123, 550; 2 Id., 284.

6 Congressional Record, May 24, 1900, p. 6690.