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the War of 1914 the emergency legislation of the several coun
tries of Europe has covered so many subjects that in case emergency legislation is to be framed in the United States the framers of it will look to recent European models. With us such legislation must pass the tests both of expediency and of constitutionality. My present undertaking is to discuss constitutionality. To that end it is advisable to begin with a brief description of the emergency legislation of Great Britain, then to discuss that legislation in the light of the British system, and finally to test it from the point of view of the Constitution of the United States.
BRITISH WAR EMERGENCY LEGISLATION
The British emergency legislation touches private property in every conceivable way, as it provides for regulating the sale of it or the use of it by the owner, and for taking over the management of it, and for confiscating the title to it, and for destroying it. When the regulation of sale takes the form of fixing prices, the intent is not that the owner shall suffer loss, but simply that he shall not make an unreasonable profit. Similarly, when the management of property is taken over by the government there is no intent that the owner shall suffer a total loss. Also in the case of compensation, at least when the transaction takes the form known to American lawyers as the exercise of the right of eminent domain, there is sometimes, though not invariably, an attempt to give indemnity. Yet beyond question property owners are suffering losses outside the mere burden of taxation and of war prices; and they are suffering such losses by reason of legislation in a country where legislation has long had as one of its chief purposes the protection of the owner of property.
Nor is the still more highly prized privilege of personal liberty enjoyed as freely as heretofore. Among many restrictions, the resident of Great Britain may not go out freely at night, or have bright lights in his house, or communicate by writing, otherwise than through the mail, with persons in enemy countries or indeed with alien enemies in Great Britain.
Even life itself is not surrounded with the old safeguards of a British jury; for offenders against the emergency legislation may be tried in military tribunals.
This summary indicates the general nature of the restrictions. Later it will be necessary to go into more minute detail.
The items of legislation already given indicate its substance. What is equally interesting is its form. The form is sometimes an Act of Parliament, sometimes a Royal Proclamation, and more frequently a series of Regulations embodied in an Order of the Privy Council or of some other governmental body or official. In comparison with the whole body of emergency documents — covering almost a thousand pages a year
- the Acts of Parliament are so slight in bulk as to give to a careless reader the initial impression that by a peaceful revolution in government the King and the Privy Council have largely absorbed the power of Parliament; but even the slightest examination of the documents shows that both the King and the Privy Council, as well as all the other governmental agencies, appreciate that such legislative power as they seem to possess comes through parliamentary authorization or ratification.
As matter of form, then, the legislation usually appears in documents which are not Acts of Parliament. Thus, the chief document has been The Defence of the Realm (Consolidation) Regulations, 1914, covering eighteen pages, issued by the Privy Council under the authorization of the Act of Parliament, only one tenth as long, entitled The Defence of the Realm Consolidation Act, 1914.
Under the British constitutional system there can be no question that the King and the Privy Council cannot, either separately or together, change the law. This has recently been held in The
Zamora, a prize case. Yet it is equally clear that there is no assignable limit to the delegation of legislative power by Parliament. Thus one of the questions naturally arising in the United States is non-existent in Great Britain.
No, in Great Britain the legislative power can be delegated; and thus the question is simply whether Parliament itself has power to make such drastic enactments as those which have been summarized. In Great Britain are life, liberty, and property protected against Parliaments? No. There are, to be sure, Magna Charta (1215), the statute of the 28th year of Edward the Third, Chapter 3 (1354), the Petition of Right (1628), the Habeas Corpus Act (1679), and the Bill of Rights (1689); and each of these famous documents is part of the pedigree of the Constitution of the United States. Yet, whereas the Constitution of the United States restricts legislation and executive and judicial power, these old British enactments do not restrict Parliament.
Magna Charta (1215) limits the executive department alone when it says, as commonly translated:
“No freeman shall be taken or imprisoned ... or outlawed or exiled or in any way destroyed nor will we go upon nor send upon him, except by the lawful judgment of his peers or by the law of the land.”
Similarly it is a limitation upon the Crown that is in mind when the Statute of 28 Edward III. (1354), says, as usually translated:
“No man of what estate or condition that he be shall be put out of land or tenement nor taken nor imprisoned nor disinherited nor put to death, without being brought in answer by due process of law."
Again, the Petition of Right (1628) distinctly directs itself against the Crown alone when it quotes the former documents and proceeds to complain of imprisonment by the King, and of billeting of soldiers and sailors, and of the issuing of commissions enlarging the powers of military tribunals.
So, too, the Habeas Corpus Act (1679) is directed exclusively against those having a person in their custody, obviously administrative officials as a rule.
Finally, the Bill of Rights (1689) is frankly nothing but a limitation upon the power of the Crown. The first few of the rights therein declared are worth quoting:
1 (1916) 2 A. C. 77.
"1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.
“2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.
"3. That the commission for erecting the late Court of Commissioners for Ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.
“4. That the levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal.
"5. That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.
“6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law.”
Thus it appears clear that Parliament is under no express limitations regarding legislative power. Indeed, Blackstone, in a familiar passage of his Commentaries, says of Parliament:
"It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power which must in all governments reside somewhere is intrusted by the constitution of these Kingdoms."
Also, in our own time Dicey, in his Law of the Constitution, has repeated the doctrine and given many illustrations of it.
It is, then, not surprising to find the Court of Appeal in 1915, in the case entitled In re A Petition of Right,“ holding that under the Defence of the Realm Consolidation Act, 1914, and The Defence of the Realm (Consolidation) Regulations, 1914, the military authorities could, without legal right to compensation, take possession of lands and buildings for securing the public safety and the defence of the realm during the war.
As the British war emergency legislation has been enacted either by Parliament itself or by bodies and officials expressly empowered by Parliament, it is obvious that, for the reasons already outlined, the British system of government gives no ground for attacking it in the courts as invalid. It will be found that in the United States the questions are very different.
1 Bl. Comm. 160.
: Chapter I.
• (1915) 3 K. B. 649.
THE CONSTITUTIONALITY OF FEDERAL WAR EMERGENCY
Would the British war emergency legislation be valid if adopted by the Congress of the United States?
It has been explained that in form the British legislation is largely composed of regulations promulgated by bodies and officials endowed by Parliament with part of its own unlimited power. The interesting question whether under our Constitution Congress can delegate legislative power to similar bodies and officials will not be discussed at present; and attention will be directed exclusively to ascertaining whether the ground covered in Great Britain can be covered through direct legislation of Congress.
The items of British legislation are so numerous, and so different from one another, that it would not be well to treat them together. Yet before approaching them one by one it is practicable and desirable to notice a few of the pertinent general principles of the American constitutional system.
In the United States there is no counterpart to the unlimited power of Parliament, for the Constitution restricts each of the government's departments — judicial, executive, and legislative.
The constitutional limitations upon Congress are of several sorts. Some are stated as limitations upon Congress expressly. For example,
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Others are found argumentatively. Thus the prima facie impossibility of delegating legislative power is deduced from ihe provision 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.” Others are part of the restriction placed upon the whole federal government. Thus,