"Another Philippine Constitutional Question — Delegation of Legislative Power to the Presi dent." He finds that " the courts, while repeating indeed the old maxim that legislative power cannot be delegated, have very nearly overthrown it [e. g. in Field v. Clark, 143 U. S., 649, and Dunlap v. United States, 173 U. S., 65,] and have done so because it was not based on sound reasoning and has always been imprac ticable in application. The maxim is, in fact, a restriction upon legislative power." The Field and Dunlap cases, he thinks, support the doc trine that " every statute is constitutional which evinces upon its face a legislative belief that some executive or legislative officer is better fitted than Congress to prescribe the course of action necessary to effectuate some particular result which Congress desires; .... and per haps it is not improbable that this principle may be held broad enough even to cover an entire subject such as the internal government of the Philippines," as, for example, under the Spooner bill. This bill, as Mr. Whitney points out, '• in granting all legislative, as well as exec utive and judicial authority over the Philippines to the President, ... is without a precedent." The only act which seriously can be suggested as a precedent is the Louisiana Act; but the difference between this act and the Spooner bill is radical, in that the former was an emergency measure, closely restricted in time, which " del egated little, if any, genuine legislative power to the President. It did not as is 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 exist ing government of the same.' The President could grant no new power, although he had some vague authority to regulate the ' manner ' of exercising the authority already existing." To our mind the minority opinion in Field v. Clark seems the sounder. The legislative power, or the legislative discretion, whichever it may be called, delegated to the President by the McKinley Tariff Act of 1890, seems to us too broad a power or discretion to be vested in the Executive, and we should look with regret upon such an extension in this direction as would result, if legislation like that contemplated in the Spooner bill were enacted and upheld. However, Mr. Whitney has written an able arti
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cle, which, like those of Professor Keener and Sir Frederick Pollock, to which we have referred already, will be read with interest by lawyers into whose hands this first number of the Columbia Law Review may come; and it is a creditable thing, alike to our law faculties and law stu dents and to the profession, that our great law schools can publish law reviews which, like the magazine before us, have distinct and perma nent legal value. That this is possible is due to the disinterested enthusiasm of many of the most scholarly men in the profession, who are willing to make these publications the medium for presenting the results of their studies.
PROFESSOR JOHN BASSETT MOORE'S admirable summary of " The Progress of International Law," contributed to the Evening Post1s review of the nineteenth century, is refreshing reading to those of us whom the end-of-the-century wars have put in a pessimistic frame of mind, — a state of mind the more pessimistic, if it happens that one looks askance at the aims and the conduct of these wars. The mere enumeration of the important changes is impres sive. On the sea, the rights of neutrals have been defined and protected; the duties of neutrals have been recognized and enforced. The freedom of vessels on the high seas from visitation and search in time of peace has been established. " It was the acknowledgment of this principle that made the seas really free and gave freedom to com merce." Paper blockades have been done away with. Privateering has been abolished. On land, the principle of freedom, " that new states and new governments are entitled to recognition on the ground of their de facto existence, has been established. Actual and effective occu pation has become recognized as essential to the acquisition of new territory by occupation. A system of extradition has been developed. Arbitration in international disputes has been resorted to in at least one hundred and thirtysix cases, exclusive of pending cases. The laws of war have been made, in some degree, more humane. There has been international co operation for humanitarian ends, and for the protection of property rights. All in all, the progress in international law is not the least of the achievements of the nineteenth century.
