Nevertheless, this Conscription Bill, and other legislation passed by Congress since the declaration of war, indicate one of the peculiar difficulties of American participation. The Legislature is jealous of its prerogatives; it has frequently chafed under Presidential control, and is determined to assert its authority in as many ways as possible. Thus the Administration did not get what it desired in certain details of the Conscription Act; the opinion of Congress was substituted for the opinion of the military experts. Congress, to cite another example, refused to pass all the measures asked by the administration to punish espionage. It was only after a doubtful debate that the President was given the power to stop exports to neutral countries, when, in his judgment, the consignments had an ultimate destination in Germany. That a Congress, organized as the present one, with no formal control capable of being exerted by the executive, should within four weeks pass a declaration of war, and a Bond-issue Act, and agree upon the principle of a conscription measure, is for the United States a record-breaking performance. But much time has been wasted; the agricultural and a score of other vital problems, demand Congressional legislation, yet with the only extra-constitutional relations between the Executive and the Legislature, the former is powerless to force action. The separation of powers theory is not likely, as Mr. Bagehot feared, to result in a conflict, but it may possibly be responsible for a serious delay when the honor of the country, to say nothing of her interests, demands an early decision. English democracy did not suffer from this constitutional difficulty. But the American Congress is determined not to be effaced to the extent that the English Parliament has suffered a diminution of its authority, and while the President may ultimately

have his way on matters of great principle, legislative discretion will be substituted on important questions of detail.

More dangerous than this, however, is the deadly delay. The influence exerted by the White House on the Capitol is entirely extra-legal, and the executive is therefore powerless when it is desired to hurry Congressional action. The bill providing for the selection of a first increment of 500,000 men by compulsion was considered in a very dilatory manner. More than three weeks were required to pass the measure through both houses of Congress; nearly two weeks elapsed before the congressional "conferees"-representatives from each House-agreed on a compromise measure, and then this had to be repassed. Without any real control of the legislature the President could do no more than argue with congressional leaders for speedy action.

The other passage which I wish to cite from Bagehot pointed out what was to his mind a more serious defect of presidential government; but this, from present indications, is not likely to be regretted in the near future. It was a particular merit, he said, that "under a cabinet constitution, at a sudden emergency this people can choose a ruler for the occasion. It is quite possible, and even likely, that he would not be ruler before the occasion. The great qualities, the imperious will, the rapid energy, the eager nature fit for a great crisis are not required are impediments-in common times." When Mr. Bagehot's essays were published this inherent power had been used in only one great emergency that of the Crimean War and the fall of the Aberdeen Ministry; but the Cabinet crises since August, 1914, afford fine illustrations of this latent excellence. Under a presidential government nothing of the kind can take place. "The American Government calls

itself a government of the supreme people; but at a quick crisis, the time when a sovereign power is most needed, you cannot find the supreme people. You have got a Congress elected for one fixed period, going out perhaps by fixed installments, which cannot be accelerated or retarded: you have a President chosen for a fixed period, and immovable during that period: all the arrangements are for stated times. There is no elastic element; everything is rigid, specified, dated. Come what may, you can quicken nothing and can retard nothing You have bespoken your government in advance, and whether it suits you or not, whether it works well or works ill, whether it is what you want or not, by law you must keep it."

Here, again, the danger which Mr. Bagehot points out is lessened, from present indications, by the fact that Mr. Wilson is President; and that the American people will rue that part of their Constitution which gives the executive a fixed term, is not very likely. It is conceivable that public opinion might consider Mr. Wilson too Quakerlike, in Mr. Bagehot's phrase, and prefer a soldier. The astronomical character of the American system would then be a regrettable preventive, but the danger of this is not probable. Before the present emergency is over, Mr. Wilson will doubtless have to exercise his power of removing executive officials, just as during the Spanish-American War President McKinley was forced to remove his Secretary of War, although he delayed for some time in the fear that it would discredit his administration. And perhaps Mr. Wilson, if it develops that one or more of the departments is inexpertly run, may delay in order not to venture the same discredit; but it is inconceivable that he could do so for long. Here the Press, as in England, would be the compelling factor. That we shall

not regret the inflexible character of our Constitution which would prevent a change when needed, depends upon the capacities of the incumbent, and the continuous spur which newspaper praise and criticism will be to bring out these capacities to their fullest scope. While in this particular case, then, there seems to be no danger, the force of Bagehot's argument that in permitting an immediate change of leaders the English Constitution is superior to the American must be admitted. And it may be added, incidentally that if the man-power of the United States were largely engaged overseas and the country so mobilized that the turmoil of an election would be regrettable, it would be impossible to prolong the life of the legislature as has been done in England. It is fortunate that the likelihood of such an emergency is extremely remote. Of a more serious nature, however, are constitutional difficulties which Bagehot does not mention.

These were rather forcibly brought to mind a few weeks ago when the Supreme Court of the United States upheld by a bare majority State legislation limiting the hours of labor in certain industries, imposing a minimum wage for women, and providing compensation for injuries received by workmen so that they could recover without being compelled to bring suit. The validity of the laws was attacked on the ground that they impaired the obligation of contracts and deprived of property without due process of law, in violation of two limitations of the federal Constitution upon State legislative action; and the fact that the plea was rejected by a bare majority of the Court served to direct attention again to the enormous power which under the American constitutional system is vested in nine men, and ofttimes as shown by these decisionsin one man, to check measures which

the people strongly desire should be put into effect. With regard to the exercise of federal power, the citizen is doubly protected by the Constitution: Congress can take no action with respect to a subject over which it has not been granted specific authority, and even as to the exercise of powers fully granted, certain limitations of the Constitution designed to safeguard individual liberty must not be transcended. They operate in time of war as well as in time of peace.

It is thus, in a sense, fortunate that the United States entered the war after it had been in progress for thirtytwo months and when its operations will apparently be confined to its present theatre, with no more economic dislocation than was our misfortune as a neutral. Measures of police regulation will be difficult, and the Government will have to interfere with economic relations to an extent hitherto undreamed of by American jurists; but such action the experiences of European States have shown to be absolutely necessary. If, however, in August, 1914, the United States had been called upon to pass laws declaring a moratorium; enforcing martial law without a jury trial, even where the operations of ordinary courts were in no wise impeded; commandeering private enterprise and interfering with the labor contract on a vast scale; assuming control over various commodities and imposing food regulations-if the United States had been confronted by the same problems that confronted European nations, one, I venture, of three regrettable results would have followed: Congress would have held back and refused to pass some of the legislation necessary, because it feared itself without constitutional authority; plain provisions of the Constitution would have had to be violated in order to validate the legislation, or else a small

group of men, perhaps one man, would, as required by their oaths, have been compelled to check legislation which the safety of the people demanded. In any case, as I have said, the results would have been unfortunate. Once confidence in the United States Supreme Court is destroyed, as it indisputably would be were the judges to sanction emergency legislation which was admittedly unconstitutional we shall have to revise our doctrines of judicial review. If the Court really did nullify the legislation, or if Congress hesitated, the safety of the realm might be endangered. At the present time, after nearly three years of conflict, these dangers are less. European experience has forced on us the conviction that various autocratic laws are necessary and proper if a democracy is to prosecute a war successfully. In the last analysis the American courts very often simply shape their constitutional decisions according to the prevailing standard of what is reasonable. The experiments of European democracies have shown that there are many extraneous fields which must be regulated in order to make war efficiently, and there would be a far better chance now for prevailing sentiment and the Supreme Court to consider that certain regulations were necessary and proper to carry into effect an expressly delegated power, than would have been the case in August, 1914. This consideration and our remoteness from the actual conflict make the constitutional problem less acute, but it is nevertheless very important and possibly dangerous.

The powers of the federal government have by interpretation been greatly expanded since the time of Lincoln, but it is certain that the entrance of the United States into the present war will increase them very considerably, and this will raise objections on a double ground: that the

legislation goes far beyond the scope contemplated by the framers of the Constitution, and relegates the States into mere administrative districts—a change which, although perhaps constitutional by liberal canons of interpretation, is in derogation of the ideal of local self-government and cannot but be regretted; and that the rights which are guaranteed by the Constitution to individuals, must be disregarded in carrying out this legislation. Even in August, 1914, when the problem was simply to safeguard our interests as a neutral, Government insurance of war risks, the amendment of shipping laws, the voting of money to aid American tourists stranded abroad, censorship of wireless stations, and the proposal of Governmentowned ships to relieve the congestion of the export trade, marked a great extension of federal authority. Constitutional doubts were even expressed over the first measure which Congress passed in furtherance of our actual participation as a belligerent, and it was amended so that the bond issue to purchase foreign securities was declared to be "for the purpose of more effectually providing for the national security and defense, and prosecuting the war by establishing credits in the United States for foreign governments," the reason being that the power of Congress to levy taxes is limited to paying the debts and providing for the common defense and general welfare; and it was thought best to state explicitly the opinion of Congress that an effective war measure would be loans to America's allies.

But this question of constitutionality was of minor significance, for the purpose of the bond issue was sufficiently clear without the explanatory amendment. So, also, while it will mark an enormous extension of federal authority, there would seem to be no constitutional impediment to the pro

posed assumption of control over the entire transportation system of the country, drafting the employees in service as will be done with the Army. Not so clear, however, is the extent to which Congress may go in regulating the food supply. So far as interstate traffic is concerned, foodstuffs may be regulated, but a card system as in Germany, or meatless days, or penal provisions to prevent waste, or price fixing apart from interstate transactions might have to be left to the States, unless the power "to raise and support armies" should be given a very liberal interpretation. It has been given practically none up to the present time; but it can be argued, with some reason, that in order to secure sufficient food for the armed forces, Congress may take whatever action seems necessary with regard to prices or consumption. And such a view is supported by a dictum of the Supreme Court in a civil war case* (which, however, put a very serious check on the military measures) that the war powers of Congress "necessarily extend to all legislation essential to the prosecution of the war with vigor and success. In advance of exact knowledge of the measures enacted, and the manner of their application, it would be impossible to make any definite prediction regarding the constitutional question. Certainly the lawyers in Congress would discuss the matter at great length, and there would be very serious doubts as to the federal right.

A difficult problem is also presented by the liquor legislation which is necessary to conserve the foodstuffs. The Conscription Act forbids the sale of intoxicants to men in uniform, and the President, as Commander-inChief of the Army and Navy, is authorized to make additional regu

*Ex parte Milligan, 4 Wallace (U. S.) 2 (1866).

lations concerning the sale near camps. These could be enforced under military law, but general prohibition laws are within the exclusive province of the States; Congress has no control over manufacturing or over sales, except so far as they may have an interstate character, and, in order to national prohibition, the propagandists have for years been attempting to secure a constitutional amendment. It is an open question whether, as ancillary to the preparations for war, there could be federal legislation limiting the foodstuffs which can be used for the manufacture of intoxicants, or restricting the sale for reasons of order and increased efficiency. The Supreme Court of the United States would be called upon to determine whether such measures are "necessary and proper" for carrying into effect the power of Congress to make war. As this article is being written, the Senate has just adopted an amendment to the Espionage Act, forbidding the use of foodstuffs in the manufacture of intoxicants, although a number of the lawyers in the Upper House objected strenuously that the Federal Government had not the requisite power, and that action could be taken only by the States. Perhaps, however, the constitutional problem could be solved by a resort to indirect methods. Under its taking power, the Federal Government regulates many subjects otherwise beyond its control. Revenue charges so high that the manufacture and sale of liquor and the sale of food at more than specified prices, or in violation of other regulations, would stop absolutely, could be constitutionally imposed. Thus, the desired end could be reached by an indirect method if direct legislation were considered not to be sanctioned by the Constitution. But, in suggesting this and other difficulties, I have not meant to argue that food or liquor

ing Lincoln's administration-difficult questions are arising with regard to civil rights. In his proclamation concerning alien enemies, issued on April 6th, President Wilson, in pursuance of authority conferred by statute, declared that enemy aliens violating the regulations issued for their control would be subject to summary arrest by designated officials and confinement in such places as might be chosen by the President. Under the only decisions-made in 1813 in the case of Charles Lockington, a British subject -aliens may be segregated and detained in certain areas or in confinement, and their release cannot be secured by a writ of habeas corpus. They, however, come in a class by themselves, and to the drastic treatment of them the same objections do not hold as to summary interference with the civil rights of citizens.

Legislation, however, comparable to the Defense of the Realm regulations, which practically placed England under martial law, would be impossible in the United States. The point was decided by the Supreme Court* when it was called upon to determine the authority of a military commission which, during the Civil War, had imposed the death sentence upon one Milligan, who was not a prisoner of war, or in the military or naval service, and who was a resident of a State where no military operations were being carried on. The Court held that Congress could not suspend the writ of habeas corpus and provide for the trial of persons by military commissions in localities away from *Ex parte Milligan, supra.