where the judgment must depend on the right of the defendants to hold property as officers or agents of the government. This the Court denied, holding that even the fact that the property was devoted to lawful and public uses, did not justify the deprivation of the lawful owner without due process of law or just compensation. The opinion said in part:

This right being clearly established, we are told that the court can proceed no further, because it appears that certain military officers, acting under the orders of the President, have seized this estate, and converted one part of it into a military fort and another into a cemetery.

It is not pretended, as the case now stands, that the President has any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty, or property without due process of law, or to take private property without just compensation.

Shall it be said, in the face of all this, and of the acknowledged right of the judiciary to decide in proper cases, statutes which have been passed by both branches of Congress and approved by the Pres!dent to be unconstitutional, that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without compensation, because the President has ordered it and his officers are in possession?

If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.

It cannot be, then, that when, in a suit between two citizens for the ownership of real estate, one of them has established his right to the possession, the wrongful possessor can say successfully to the court, Stop here, I hold by order of the President, and the progress of justice must be stayed.

With this significant illustration of the protection by the courts of individual right against arbitrary executive orders we may fittingly close this study.

TECHNICAL ANALYSIS

There is no approach to uniformity in nomenclature. Rules, Regulations, Instructions, General Orders, Circulars, Bulletins, Notices, Memoranda and other terms are given to different series of publications by different government offices, with no clear distinction as to the meaning of these terms. .

...

In the matter of publication there is a maximum of variety and confusion. Not only is there no general system, but no department has developed a system for itself. Each bureau, and often each local office, has its own methods, or more often lack of method. . .

There is need first, within each department and in the government service as a whole, for more systematic and uniform methods in the preparation and publication of administrative regulations. There should be in each department an agency for supervising the preparation and issue of all such regulations within the department. The number of classes of publications should be reduced, and a more uniform terminology established. Finally there should be an official publication which will record all regulations and instructions issued by all branches of the government service.

I

-FAIRLIE.1

We have examined the ordinance making powers of the President from the standpoints of analytical jurisprudence, constitutional history, constitutional law, and political science. It remains in the appendix to suggest another point of view from which the subject may be approached, and to offer a few facts relating thereto.

The first matter of technique is the forms of executive ordinances in the federal government. From what has been said in the text of the lack of technical terminology, and of the failure to recognize the ordinance as a distinct juristic category, it need not be a cause of surprise that the ordinances of the President and the heads of departments are neither called ' ordinances ' nor assembled in any one place nor issued in any one form. It is characteristic of the Anglo-American traditional attitude on executive orders that parliament once complained because at that time the royal proclamations were being published together as if they were statutes! *

The chief forms of written Presidential acts are the 'Proclamations' of the President and his 'Executive Orders.' But while these two forms contain most or all formal acts of the Chief Executive, aside from his Messages to Congress, it is by no means true that all Proclamations and Executive Orders are ordinances in the technical sense defined in Chapter II. Thus the merely hortatory document known as the annual Thanksgiving Proclamation is issued in the same collection and bears the same form and name as Proclamations of a co-legislative character. Again, the Executive Orders con

1 " Administrative Legislation," in Michigan Law Review, January, 1920.

* Hallam, Constitutional History of England, vol. 1, p. 323.

tain not only ordinances but at times such matters as individual exemptions from civil service rules."

Executive Orders deal more exclusively with matters of an administrative or executive nature than do Proclamations. Executive legislation usually takes the form of Proclamations, especially when it is of general interest and application within the continental United States. Sometimes, however, the Proclamation of the President merely outlines an ordinance and mentions Rules and Regulations to be issued. A Proclamation in both England and the United States is a form of publication or promulgation. It is not only printed, but published, and is deposited in the archives of the Department of State as a part of the public record of the government. Thus it gets its name from this purpose of proclaiming or publishing something, while its contents may be declaratory, informatory, or hortatory, as well as, upon occasion, legislative. Executive Orders are less formal, and are apt to be used either for such ordinances as those for territories like the Panama Canal, or, especially, for ordinances in the material sense of the term. Civil service rules usually or always take the form of Executive Orders. Such rules are of considerable public interest, but they do not directly affect private persons.

Both forms are used for ordinances under delegated power as well as for ordinances under constitutional authority. For certain types of both sorts of ordinances special names are employed in popular or even legal usage. However, many at least of these types appear either as Proclamations or Executive Orders. We have mentioned that civil service rules' are issued as Executive Orders. Amnesties are, on the other hand, issued as Proclamations." The texts of treaties are also embodied in Proclamations for the sake of promulgation, though treaties themselves do not take that form. Since, however, treaties are part of the law of the land and as such on a parity with statutes, it is fitting that they be formally proclaimed to the public.

The form of Presidential Proclamations has been the same since the beginning of the government. It bears a striking similarity

Another type of Executive Orders that are not ordinances, is those establishing administrative sites.' Even those that do embody ordinances vary greatly in importance. At one extreme we have No. 973 issued by President Roosevelt excusing veterans and sons and members of the Women's Relief Corps desiring to attend the unveiling of General Seridan's statue from duty at 1 p. m. on a given day. This is a Verwaltungsverordnung, yet one of relative insignificance. At the other extreme there is an Executive Order like No. 1083 issued by President Taft amending the tariff of United States Consular Fees as prescribed by a prior Executive Order, or No. 1990 issued by President Wilson for the operation and navigation of the Panama Canal.

For example, see 40 Stat. L., part 2, 1716 ff.

For examples of civil service rules and amnesty proclamations see Richardson, Messages and Papers of the Presidents.

Treaties, like Proclamations, are printed in the back (or latterly

in Part 2) of the volumes of the Statutes-at-Large.

7

See examples of Washington's Proclamations as set forth in

Richardson, Messages and Papers of the Presidents, vol. i.

9

to the form of proclamation used by the king of England; and the reader of the Journal of William Maclay will at once suspect, and no doubt correctly, that this similarity is something more than a coincidence. Its general character may be indicated by giving a short Proclamation of President Wilson; though it may be noted that in certain details the wording varies from time to time. Thus, for example, in the phrase "I have hereunto set my hand," one proclamation may use the word "hereunto" and the next "hereto." (Revoking Proclamation of January 1, 1918, Prohibiting Aircraft Expositions)

By the President of the United States of America.
A Proclamation.

Whereas on the first day of January, 1918, a proclamation was issued forbidding the exposition of aircraft in the United States or its possessions;

And Whereas, the reasons requiring such prohibition have ceased:

Now, Therefore, I, Woodrow Wilson, President of the United States do hereby repeal and annul the said proclamation, and do remove the prohibition therein imposed upon private aeroplane exhibitions.

In Witness Whereof, I have hereunto set my hand and caused the Seal of the United States to be affixed.

Done this 16th day of December in the year of our Lord (Seal.) one thousand nine hundred and eighteen, and of the Independence of the United States of America the one hundred and forty-third.

By the President:

ROBERT LANSING,

WOODROW WILSON.

Secretary of State.

(No. 1505).

It may be added that Executive Orders are less ritualistic, less elaborate. Examples are given in preceding chapters.

Presidential Proclamations and Executive Orders are preserved in the archives of the Department of State. The former are printed in the appendices of the forty odd volumes of the United States Statutes-at-Large, from the third volume on; though later volumes of the series have been printed in two parts, Part I containing the public acts of Congress, and Part II the private acts of Con

10

Anson, Law and Custom of the Constitution, vol. i, chap. iv,

sec. 4.

This form is taken from a loose-leaf copy of some of the war Proclamations furnished the writer by the Department of State.

10" The Presidents' Proclamations are believed to be all printed in the volumes of Statutes-at-Large since 1873" (Letter from the Division of Publications of the Department of State, dated 19th October, 1922).

gress, treaties, and Proclamations. The Executive Orders have been regularly printed since October 13, 1905,11 and have been collected in bound volumes containing practically all Executive Orders since that date. There are now several large volumes, which are entitled 'United States Executive Orders.' A set is deposited in the Department of Manuscripts of the Library of Congress. There are three reasons why some Executive Orders may be omitted from these volumes. In the first place, they were not numbered for a time after they began to be published. In the second place, such Orders are sometimes given numbers which contain fractions, thus making it uncertain whether all are included, even though all those numbered with consecutive whole numbers are there. In the third place, some Executive Orders may not be sent to the Department of State at all, though all printed Executive Orders are supposedly issued therefrom.12 For the Orders of the period before October 13, 1905, one may turn to Richardson, Messages and Papers of the Presidents, though this valuable collection does not appear to contain all of them. Richardson is also convenient for scattered Proclamations and Executive Orders of all periods.

Individual orders of administrative commissions or tribunals are usually termed orders.' Departmental forms of action vary. The most important form is that known as Rules and Regulations. Others which are less formal are circulars, letters, etc.13 Rules and Regulations are the regular form for ordinances or other sorts of action of general interest and application, including acts of colegislation, issued by the heads of the executive departments. Of course these Rules and Regulations, if discretionary, and issued under delegations to the President, involve his political and perhaps legal responsibility, and are in a sense his acts. Even if issued without his knoweldge, or by virtue of authority delegated directly to department heads, his is the political responsibility, if not also the legal responsibility in case of impeachment proceedings. In form there is a difference between acts which are of departmental stamp, and those acts which the President issues personally.15

14

11 See the letter from the Department of State to Mr. Worthington C. Ford, sometime head of the Department of Manuscripts, Library of Congress,-which is printed in the first of volume i of the United States Executive Orders.

19" Since 1905 the Executive Orders of the President have all been issued from this Department—at least such has been the rule. But some may possibly have been issued from other Departments without this Department's knowledge. These Orders are printed in separate form" (Letter from the Division of Publications, Department of State, dated 19th October, 1922).

18 See Fairlie, "Administrative Legislation," in Michigan Law Review, January, 1920; Checklist of United States Public Documents, 1789-1909, vol. i (Lists): compiled under the direction of the Superintendent of Documents.

14 See the letter of President Madison to his Secretary of War complaining because regulations were issued without his knowledge (Writings of James Madison, vol. iii, p. 417-419. Quoted at the beginning of chap. vii above).

18" There is no official collection of the rules which the heads of