CHAPTER XII. THE MAKERS OF ADMINISTRATIVE LAW. HAVING referred to the general nature of constitutional law and to the power by which it is formed, it remains to indicate the nature of administrative law as the expression of the occasional will of the nation. Constitutional law establishes the political organization of the nation; while administrative law provides for "the exercise of political powers within the limits of the constitution.” In its broadest sense administration includes "the making and promulgation of laws, the action of the government in guiding the state as a whole, the administration of justice, the management of the property and business transactions of the state, and the working in detail, by means of subordinates entrusted with a certain amount of discretion, of the complex machinery by which the state provides at once for its own existence and for the general welfare.”* This list of topics embraced within the wide conception of administration defines the sphere of administrative law. In the modern state, laws of this class are made by the organs of the sovereign, of which, for law-making purposes, there are two-the legislature and the tribunals. "The first organ makes new law, the second attests and confirms old law, though under cover of so doing it introduces many new principles." † * Holland, The Elements of Jurisprudence," 251. Seeking, with reference to the United States, to determine who forms and expresses the occasional, national will, we find it provided in the constitution that, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." If we examine a little further, we shall find that the President is also a factor in legislation, and that the lawmaking power is vested in Congress and the President jointly: "Every bill which shall have passed the House of Representatives, and the Senate, shall, before it becomes a law, be presented to the President of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of that house, it shall become a law."* Not only bills, but also every order, resolution, or vote to which the concurrence of both houses of Congress may be necessary (except on a question of adjournment), must be presented to the President for approval, and if disapproved, must be passed again by a two-thirds vote of the two houses, as in the case of bills.† An exception has grown up in practice, which is directly in opposition to this last mentioned clause, and that is, that resolutions of Congress, proposing amendments to the constitution, do not require the assent of the President. We thus see that in legislation the President represents the amount of * Art. I., Section 7, ch. 2. † Ib., cl. 3. power that resides in the number of the votes which lie between the majority that passed the particular bill, and the two-thirds necessary to pass it over the veto. For illustration, let us suppose a majority of the House of Representatives to be one hundred and fifty-seven votes, and of the Senate thirty-nine votes, and that a bill passes by a bare majority in both branches of Congress. We will suppose the President vetoes the bill. If two-thirds of the votes of the House of Representatives are one hundred and ninety-six, and of the Senate fifty-one, it follows that the President's negative represents the quantity between the majority and the two-thirds, that is, forty-nine votes. In this view, every measure which passes must receive virtually a two-thirds vote of both houses. The Chief Magistrate's approval produces the same result as if he had been present in each house when the vote was taken, and had given a number of votes for the bill, equal to the number between the actual majority in its favor, and the two-thirds necessary to pass it over a veto. The President is a legislator elected at large, and represents the whole people. He is not an independent element in the government; he does not represent a distinct class. He is not supposed to be the conserver of interests which must be guarded against enemies in the state. He is not the antithesis of the Demos. He is a legislator chosen upon a vote of all the electors in the States, who, during his term of office, possesses a large, though, varying with the occasion, indeterminate weight in forming and expressing the occasional will of the nation. In England, as we know, the monarch possesses an absolute veto upon legislation. He stands on one side, and the legislature on the other. He is out of the reach of the people. It is apparent that there cannot co-exist such an hereditary monarch with an absolute veto power, and a parliament ary system supposed to represent the people, and to be able to express the national will. Such a negative upon the law-makers is absolutism, and therefore in the development of free English institutions, it is as natural that it should go to the ground as that the claims of divine right by James I., and the prerogative claims of his son, should have disappeared. The assertion, at this day, of the veto power by the Queen, would be a palpable blow at popular government. If the Queen should disapprove of an Act of Parliament, it would be saying to the English nation, my will is the ultimate, the sovereign will in the state; but when the President vetoes an Act of Congress, he merely asserts that he casts against the bill the number of votes between the majority and the two-thirds vote. Under the French Constitution of 1875, the President of the Republic cannot veto an act of legislation. He is rather a moderator. It is considered that he ought to have a cooler head than the legislator, and he is therefore permitted to interfere when there is danger of over-hasty law-making. If at any time he judges it necessary, he may enter the Assembly and take part in the discussion of a bill pending. But whenever he desires to do so, he must send a message to that body indicating his wish to be heard. Thereupon the debate is suspended until the next day, when he is heard, unless a special vote shall have decided to hear him the same day the message is transmitted. After his address, the session is adjourned, and the subsequent discussion is not in his presence. Again, each bill must pass through three readings, unless considered urgent, and those laws which receive the usual three readings, do not take effect until a month after their passage, while those which have been declared urgent, go into operation within three days. The constitution, upon this view of imposing moderation, rather than a check upon the deliberative branch of the government, permits the chief magistrate, when a law has been declared urgent, and passed without the three readings, to resubmit it for a new deliberation to the Assembly, and in those cases where the bill is going through the usual course of three readings, he may interpose after the second reading, and postpone the third reading for a month. He has in effect only a deliberative, counselling function in the making of the laws; is a sort of prime minister without a vote. The constitution of the German Empire is somewhat vague on the point in question: It nowhere, in terms, authorizes a veto, or any interposition, by the Executive, in the deliberations of the Reichstag. The only provision which refers to the laws when they come from the legislative body, is that: "The laws and regulations of the Empire shall be published in the name of the Emperor, and require for their validity, the signature of the chancellor of the Empire, who thereby assumes the responsibility." This last clause immediately suggests the query, to whom is the chancellor responsible? He is appointed by the Emperor, and is alone removable by him; he cannot be impeached by the Reichstag or any other body. His responsibility is solely to his Imperial master. In effect, therefore, when the Emperor disapproves of a bill, his chancellor refuses his signature to it, and it is absolutely vetoed. If it so happen that the chancellor is the strong man, and the head of the state merely a weak instrument of his will, then of course, the minister is absolute master of legislation. It does not seem to have occurred to the Germans, that this requirement of the signature of the chief minister was not mandatory upon that officer, or that it really was putting an absolute veto into the hands of the Emperor until |