may be seen by placing them in parallel columns.1 There are two differences. The Louisiana act, originally drawn so as to operate like other laws for the indefinite future, was amended on motion of the then leader of the House of Representatives, John Randolph, of Roanoke, so as to have but a temporary effect; and in the language of the mover it "compelled Congress to take early measures for reducing this enormous power delegated to the Executive." Mr. Randolph said: "If we give this power out of our hands, it may be irrevocable until Congress shall have made legislative provision; that is, a single branch of the Government, the Executive branch, with a small minority of either House, may prevent its resumption. He did not believe that under any circumstances it was proper to delegate to the Executive a power so extensive."4 This emergency measure, so closely restricted in point of time, also. delegated little, if any, genuine legislative power to the President. It did not, as now proposed, delegate to him all the powers" necessary to govern" the new territory, but only those powers actually "exercised by the officers of the existing government of the same." The President could grant no new power, although he had some vague authority to regulate the "manner" of exercising the powers already existing. In other words, the Louisiana act was analogous to the now familiar type of legislation which grants power in outline, the outline to be filled in by departmental regulations or

Until the expiration of the present session of Congress, unless provision for the temporary government of the said territories be sooner made by Congress, all the military, civil, and judicial powers exercised by the officers of the existing government of the same, shall be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property and religion (2 Stat., 245).

Spooner Bill.

[After the termination of the insurrection] all military, civil and judicial powers necessary to govern the said islands shall, until otherwise provided by Congress, be vested in such person and persons and shall be exercised in such manner as the President of the United States shall direct for maintaining and protecting the inhabitants of said islands in the free enjoyment of their liberty, property and religion.

2 Annals of Congress, October, 1803, pp. 18, 498. 3 Id., p. 498.

4

* Id.

court rules. This emergency measure was debated but a single day. Although its operation was subsequently extended for a short time, it remained in operation but eleven months, and was never brought to the attention of the courts; and the constitutional objections ably urged by the opposition leader, Roger Griswold, of Connecticut, were defeated largely, doubtless, upon the reasoning above stated.

The Hawaiian annexation resolution3 went a step further than the Louisiana bill, for it was given an indefinite operation; but it still fell radically short of the Spooner bill, for it, like the Louisiana resolution gave to the President, but a restricted legislative power, if any." I do not think that the Hawaiian resolution is entitled to serious consideration as a precedent. It was pressed through under the excitement of the early period of the Spanish War. It involved new and momentous problems, as for the first time we were annexing a settled and populous land beyond the seas. The constitutional arguments in Congress turned upon the question whether foreign territory could be annexed by act of Congress otherwise than as a State, and little, if any, notice was taken in the debate of the question now before us. Moreover, the Hawaiian resolution is too recent to have weight as a practical exposition of the Constitution.

For these reasons I think that the courts, if the constitutionality of Mr. Spooner's measure shall ever come before them for consideration, will not rest their decision upon leg1 Annals, October 27, 1803, pp. 498–514.

2 Act of Mar. 26, 1804, Chap. 38, Sec. 16.

3 Joint resolution of July 7, 1898, 30 Stat., 750.

4 .. Until Congress shall provide for the government of such islands all the civil, judicial and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons, and shall be exercised in such manner as the President of the United States shall direct."

5 Early annexations had been justified by the Courts under the war and treaty making powers. Texas was annexed as a State under the power to admit new States. Power to annex a mere territory by a legislative act had been denied by Senator Thurman and others in the San Domingo debate of 1870, and the question was ably debated on both sides in 1898. The precedent relied upon by the supporters of the resolution was the Guano İslands Act of 1856 (Jones vs. United States, 137 U. S., 202, 209, 212). The Hawaiian Supreme Court has since recognized the difficulty of this question in Peacock vs. Republic of Hawaii (supra).

islative precedents. The question will be an original one, and will be treated as such.

The Guano Islands Act of 1856 delegated to the discretion of the President, unhampered by any rules or limitations, the question whether newly discovered Guano Islands should" be considered as appertaining to the United States." The Supreme Court in sustaining the statute called this “a strictly executive power." It certainly involved a very wide discretion, and upon a most important matter, if the view be correct which treats his affirmative action as annexing the islands to this country.2

The above-quoted case of Field v. Clark,3 arising under the McKinley Tariff Act of 1890, is the one in which the Supreme Court has come nearest to marking the boundary within which legislative power may be delegated. While denying the right to delegate, the majority of the Court state in their opinion that the Legislature may provide that a statute shall not take effect until " upon a named contingency," when" the proper occasion exists," occasion exists," upon the occurrence of "some fact or state of things upon which the law makes, or intends to make, its own action depend." They say that the question of fact as to whether the time has arrived may be left to the decision of an executive officer. 4 This seems on a first reading a simple and practicable distinction. If, however, we examine the question thus left to the President's uncontrolled discretion, we find that it was something very different from the ordinary "question of fact" so familiar to a lawyer. It was whether "the government of any country producing and exporting sugars, molasses, coffee, tea and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States he may deem to be reciprocally unequal and unreasonable." If he deemed them so, the President was to collect certain specified duties upon imports from that country,

1 Jones vs. United States, 137 U. S., 202, 209, 215.

2 Hawaiian debate (supra).

3 143 U. S., 649.

The Court in its opinion also intimate approval of the act of 1794, authorizing the President to lay an embargo on all ships and vessels in the ports of the United States. "whenever, in his opinion, the public safety shall so require;" and of the act of 1799, authorizing the President to resume commercial intercourse with France "if he shall deem it expedient and consistent with the interest of the United States," and to break off intercourse again “whenever, in his opinion, the interest of the United States shall require." According to the doctrine of the Field case, therefore, the execution of a law may be made to depend upon the question whether the President deems it advisable that the law should go into operation.

The Court has recently gone a step farther in the case of Dunlap v. United States. That case arose under a law granting a rebate of the tax upon alcohol "under regulations to be prescribed by the Secretary of the Treas ury."4 The Secretary refused to provide regulations, and the Court construed the law as having "left it to the Secretary to determine whether or not such regulations could be framed, and if so, whether further legislation would be required," saying that "it was the statute itself which postponed the existence of the right until the Secretary had prescribed regulations, if he found it practicable to do so.' The constitutional question was brought to the attention of the Court in this case, which was argued for the claimant by eminent counsel.

It seems to me that in both of these cases there was what the Courts have often called a delegation of legislative discretion. There was no standard provided by which the President should judge whether foreign legislation was reciprocally" unequal and unreasonable, in

1 Id., p. 691.

2 The Court treats these early laws as a contemporaneous and practical construction of the Constitution; but the constitutional question was raised and debated in Congress a few years later with elaborate examination of the precedents (Annals of Congress, 1807-8, pp. 2198-2241; Id., 1808-9, pp. 245-298, 315), and the language of similar laws was thereafter somewhat modified, perhaps, to meet these objections. "The Reciprocity Acts of 1890. Are they Constitutional?" American Law Register and Review, March, 1892.

3 173 U. S., 65.

4 Tariff Act of August 28, 1894, Sec. 61.

view of the concessions made by us to foreign Governments. It is difficult to see why Congress should not as well provide that the President might remove the articles named into the dutiable list, if he should at any time. deem the revenue in need of replenishment, or our industries in need of encouragement. There was no standard provided by which the Secretary of the Treasury should judge whether it was practicable to grant a rebate on alcohol without further legislation. It is difficult to see why Congress should not as well provide that he might discontinue certain tariff or internal revenue duties if they did not pay the cost of collection, or if they caused retaliation by foreign States, or resulted in the control of industries by large combinations of capital.

Both of these so-called questions of fact, and still more those involved in the acts of 1794 and 1799 to which I have alluded, were questions involving the use of that kind of discretion which ordinarily is the basis of legislative action; but in all of these cases, the Legislature thought that the discretion could be more wisely exercised by an executive officer than by itself. And if the Legislature is of that opinion, why should it not have the power to delegate its discretion?

If a given scheme of legislation may be adopted merely in outline, to be filled in by the Executive, and if its operation may be suspended until the Executive shall consider it practicable or fair to foreign nations, or for the best interest of the United States, for the law to have effect, does it follow that a given subject of legislation may be delegated to the Executive altogether, to provide the scheme as well as the details? It is difficult to say why the line should be drawn just short of this, after the previous extensions.1

It seems to me that the courts, while repeating indeed the old maxim that legislative power cannot be delegated,

1 In Martin vs. Witherspoon, 125 Mass., 175, the court sustained a delegation to the Executive of the subject of pilotage regulations. The power to remit penalties, originally regarded as legislative (6 U. S. Stat., 3), was delegated to the Secretary of the Treasury at an early date (The Laura, 114 U. S., 411, and stat. cit.). To the Executive has been delegated the subject of game laws, and importation of fire arms, in Alaska (U. S. Rev. St., Sections 1955, 1956). Wide powers are delegated to the President by the national health legislation (Rev. St., Section 2494; Food Act of August 30, 1890, Sections 4, 5).