of the legislature to do justice or the fear of political consequences. And it may be worthy of passing mention that, under our system, the property of one private person cannot be taken from him and bestowed upon another even with just compensation made. With us the power of eminent domain extends only to the taking of private property "for public use." But in all this no criticism of the constitution of Canada was or is intended. History shows that it has worked well. And, of course, the people have been secure under it in their rights and liberties.

If it had been otherwise, the constitution would have been changed. The reviewer meant to call attention to certain matters of difference in constitutional law and practice, but without any claim of superior excellence on either side. And if, as a fruit of such discussions, thoughtful people on both sides of the international line may come to a better understanding of their neighbors' institutions and their methods of reconciling liberty with government, it cannot but be to their advantage.

"The Cabinet in Congress"

Early American statesmen laid great stress upon the strict apportionment of powers as between the three departments of government. While recognizing the advantage, or even necessity, of admitting the executive to a certain measure of participation in the work of the legislative body, and vice versa, they restricted this blending of functions within very narrow and carefully defined limits, fearing that otherwise the liberties of the Republic would be jeopardized and the entrance of tyranny made easy. Modern American statesmen, in great and increasing numbers, challenge the ancient maxims. They doubt whether the doctrine of the separation of governmental powers ever rested on a sure foundation. In revising or even abandoning it, they see no danger to the liberties of the the Republic. They urge the great need of promoting efficiency in the business of government, and find that the prime requisite is not the separation but the better co-ordination of the executive and legislative branches. No one can be blind to the fact that, within the last generation, and both in national and state governments, the influence and leadership of the executive, if not the constitutional power of the executive, have grown enormously at the expense of the legislative department. Proposals for changes in the constitutions and laws looking in this direction, put forward by philosophical writers, governors, politicians, and

members of constitutional conventions, have contemplated either a still further extension of the executive power or the enactment of measures which would bring within the pale of strict legality certain practices and methods, now grown familiar, but which at best must be described as extra-constitutional.

It is to the latter class of proposals that we must assign the suggestion that members of the cabinet should have seats in one or both houses of Congress, with the right to speak to pending measures and the duty to answer interrogations, advanced by Mr. Francis E. Leupp, in his interesting article, "The Cabinet in Congress," in the Atlantic Monthly for December, 1917. "The idea," he says, "is not to revolutionize our system of government, or even to expand the powers of any part of it, but merely to seat the nearest representatives of the President where they can answer questions or make suggestions concerning pending legislation as he might if present in person." We should remind ourselves, he thinks, that the Constitution lays as much stress on the mutual interdependence as on the mutual independence of Congress and the President. "The great lesson of the Civil War was that the strength of our nation lies not in a jealous aloofness between its several organs but in their sympathetic cooperation. The desire of the foremost modern students of constitutional government to bring the President into the most intimate practicable relation with Congress, therefore, does not

mean that they would have the President make or Congress execute the laws; their aim is merely to place a practical interpretation on the requirements that the President shall give the lawmakers 'information of the state of the Union and recommend to their consideration such measures as he shall deem necessary and expedient,' and that Congress, thus informed and advised shall make 'all laws which shall be necessary and proper' for carrying into execution the powers vested in any officer of the United States."

Three important advantages would accrue, as Mr. Leupp believes, from seating the heads of departments in Congress. First, with the best intentions in the world, Congress often blunders sadly in its enactments for the lack of exact information upon specific details. This would not happen if the cabinet minister possessing precisely the needed facts and figures were present in committee or in debate, and if it were his duty either to volunteer or to supply on request what the legislators should learn. Secondly, at his place on the floor of Congress a member of the cabinet would stand as the spokesman of the administration. By explaining clearly and with authority the attitude of the President towards a pending bill, or his wishes in regard to contemplated legislation, he would be able to avoid disastrous misunderstandings and possible vetoes. And, thirdly, the adoption of such a plan would result in the choice of stronger men to make up the cabinet. "Political expediency is not a consideration which a President could afford to let influence him in choosing a cabinet

officer, if he knew that the man of his choice would have to stand before Congress in person and act as his mouthpiece."

But actually members of the cabinet do frequently appear before committees of Congress for the purpose of laying before them the information which is necessary to a thorough understanding of the conditions on which proposed legislation is to be predicated. Congress can always have such information if it really wants it. True, if a department head had a seat in the House, he could rise in his place to correct false impressions, present statements of facts, or otherwise guide the course of legislation in the right channels. But can anyone imagine a house of Congress, through its proper committee, refusing to hear a cabinet minister who desired to address it or to lay a statement before it? The question is answered if one remembers the long examination of Mr. Secretary Baker before a committee of the Senate in January. As to the advisability of having a presidential mouthpiece always present in Congress, no one of our recent presidents has hesitated for a moment to tell Congress what was his attitude towards any pending bill or to express in concrete form his views as to expedient legislation. Nor have Presidents hesitated to employ cabinet ministers as their spokesmen in these matters. Complete drafts of bills are not uncommonly prepared in the executive departments and handed to some member of Congress for introduction. In fact, we have come to speak of "administration bills" as glibly as if we had always lived under

the English system of government. With the secretaries of the ten great departments made members of the legislative branch, there would be this advantage, that the administration and its chief officers could accomplish frankly and legally what they are now obliged to effect by methods which appear (to some of us, at least) like tolerated evasions of strict constitutional practice. Not at all in the way of criticism, but as a pertinent illustration of actual conditions, we quote the following from the news columns of the Washington Evening Star of May 4, 1917: "The influence of President Wilson's approval of the newspaper censorship section of the espionage bill failed to save it in the House today, and it was stricken from the bill by a vote of 220 to 167. The vote came

after administration leaders had fought

for the section under a hot fire of attack, and Chairman Webb of the Judiciary Committee had told the House he had just heard from President Wilson that the section was necessary to the defense and safety of the country. Postmaster General Burleson, who often visits the capitol to round up support for administration measures, made a futile attempt to get enough support for the censorship section. Representative Webb of North Carolina, chairman of the House Committee on the Judiciary, did everything in his power to rally to his support enough votes to give the administration almost unheard-of power in proclaiming what may or may not be published. In addition, Postmaster General Burleson was in the corridors and lobbies of the House for several hours today in a

vain attempt to preserve the censorship section by telling members on both sides of the House that the administration absolutely demanded it.” Perhaps it would be expedient if members of the cabinet were authorized to address a house of Congress from its own floor rather than from any other place. But a much more important question than that which Mr. Leupp propounds, and which is going to be asked before long and which must be answered, is this: Shall our plan of government be so changed as to give the President, either in person or through the heads of departments, a direct right of initiative in legislation?

"Breaking the Labor Truce"

Admitting the perfect legal right of workingmen to organize themselves into unions, it has always been the law that there exists a correlative right on the part of an employer to run an "open shop," if he so chooses, or to employ only non-union labor. About four years ago, in the coal regions of West Virginia, an attempt was made to coerce a certain mining company into acceptance of the closed shop (employing none but union miners) by sending "organizers" among its men, enrolling them in the union, and then, when a sufficient number had been gained over, calling a strike, which could be broken only by the company's submission to the demands of the union. Upon the company's application to a Federal court, it was decided that this was a conspiracy to injure the company in respect to its rights and property which should be restrained

by injunction, and it was so ordered. This decision was recently affirmed by the Supreme Court of the United States. There was nothing revolutionary, not even anything new, in the decision of the latter court. It merely stated what the law is and always has been, and decided the case accordingly. The gist of the decision may be seen in the following quotation from the opinion: "The same liberty which enables men to form unions, and through the union to enter into agreements with employers willing to agree, entitles other men to remain independent of the union, and other employers to agree with them to employ no man who owes any allegiance or obligation to the union. In the latter case, as in the former, the parties are entitled to be protected by the law in the enjoyment of the benefits of any lawful agreement they may make. This court repeatedly has held that the employer is as free to make non-membership in a union a condition of employment, as the working man is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation, unless through some proper exercise of the paramount police power."

Yet, under the caption which stands at the head of this article, this decision has been made the subject of a stupid and mischievous attack upon the Supreme Court by The New Republic in its issue of December 22, 1917. In the course of the editor's comment on the case, it was said: "The decision will confirm the popular feeling, already strengthened by recent constitu

tional decisions, that a majority of the Supreme Court are endeavoring to enforce their own reactionary views of public policy, in direct opposition to the more enlightened views prevailing in legislatures and among the public. For there was no statute and no binding precedent to justify the decision. It was derived solely from the court's conception of the policy of the law, from its judgment of the proper balance of interests in an industrial conflict."

We have called this attack both "stupid" and "mischievous." If it is the former, it certainly is the latter. And its stupidity is shown in a misstatement of recent judicial history and in an utter failure to understand how and why a court of justice decides cases. For, in the first place, it is certainly not true that the justices of the Supreme Court entertain reactionary views of public policy, and still less true that they are endeavoring to enforce them. On the contrary, ever since the era of "progressive" legislation began, they have consistently shown themselves not only willing but anxious to give effect to the will of the people, as expressed in enactments of that character, whenever and wherever it was legally possible to do so. Indeed, it is not too much to say that, for this purpose, they have more than once strained constitutional barriers to the cracking point. This was demonstrated in an article entitled "Progressive Legislation, the Constitution, and the Supreme Court," in the January number of this REVIEW, pages 19-29. One who has not made himself familiar with the decisions has no right to charge the judges with reactionary