« AnteriorContinuar »
is there no precedent in our own constitutional history for such powers as the President received by act of Congress, but it is undoubtedly true that these powers were themselves inconsistent with the provisions of the constitution itself. In anything but a war emergency the yielding of Congress of such powers to the President, and the acceptance by the President of such powers, would have been instantly challenged by individuals of the state and the question of constitutionality referred to the Supreme Court for a decision. During the war emergency, however, no such question was raised.
Another example of the failure of actual government to conform to the provisions of the constitutions is to be found in the case of our South American and Central American neighbors. In general the constitutions of these countries were modeled upon the constitution of the United States. On paper, their provisions read as liberally as the provisions of our own fundamental law. It has been said, for example, that the constitution of Mexico "is one of the most perfect constitutions in the history of world fiction.” Those who are familiar with the actual conditions of government in these countries say that the form of the constitution is regularly circumvented by the ruling class. In one country it is the Spanish or their descendants, in another it is the Portuguese or their descendants, who with class-conscious efforts maintain the control of the agencies of government in their own hands. The government, though nominally and constitutionally a democracy, is to all intents and purposes an aristocracy. The political elections of which we hear are not the free expression of the will of the whole people registered at the ballot box, but the mere struggle between two or more factions of the ruling self-conscious class.
Even in countries where the level of education is far higher than in these we have just mentioned, and where adherence to the provisions of the constitution is more generally observed, professional politicians have found means of nullifying in actual effect the real purpose of the democracy and provisions of the fundamental law. These conditions are to be found
notably in the United States, France, and Italy. In our own country the existence and development of highly organized powerful political parties has, as we all know, added a new extra-legal element to our actual method of government. And we all know further that in many instances the operation of this extra-legal element determined for us the personnel of our government in a way far different from that set forth in, and intended by, the constitution. And in France, likewise, the centralization of the powers of government in the hands of the professional politicans in Paris has enabled them to exert influences throughout the country which tend to destroy the true representative nature of the French democracy.
Government, then, is not a subject which can be studied solely from books and documents. It is essentially a study of human society in action, and no student can justly feel that he is familiar with the system of government in operation in any state until he is familiar with the social conditions, methods of thought, political knowledge and experience, and actual details of political practice in that state.
STATISTICS AND ILLUSTRATIVE CITATIONS
Cuba. The Platt amendment, incorporated in the United States Army Appropriation Act of 1901, and accepted by Cuba as an addition to its constitution. The following letter contains the provisions added:
HAVANA, June 13, 1901. Honorable MILITARY GOVERNOR OF CUBA.
HONORABLE SIR: Replying to your official letter dated on the eighth (8th), whereby you forward to the undersigned the report of the Honorable the Secretary of War, dated May 31st last, I have the honor to advise you that at the session held yesterday, June 12th, by the Constitutional Convention, there was taken the following
RESOLUTION The Constitutional Convention, in conformity with the order from the military governor of the island, dated July 25th, 1900, whereby said convention was convened, has determined to add, and hereby does add, to the Constitution of the Republic of Cuba, adopted on the 21st of February ultimo, the following
APPENDIX ARTICLE I. The Government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any way authorize or permit any foreign power or powers to obtain by colonization or for naval or military purposes, or otherwise, lodgment or control over any portion of said island.
Art. II. That said Government shall not assume or contract any public debt to pay for the interest upon which, and to make reasonable sinking-fund provision for the ultimate
discharge of which the ordinary revenues of the Island of Cuba, after defraying the current expenses of the Government, shall be inadequate.
ART. III. That the Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the Treaty of Paris on the United States, now to be assumed and undertaken by the Government of Cuba.
ART. IV. That all the acts of the United States in Cuba during the military occupancy of said island shall be ratified and held as valid, and all rights legally acquired by virtue of said acts shall be maintained and protected.
ART. V. That the Government of Cuba will execute, and, as far as necessary, extend the plans already devised, or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the Southern ports of the United States and the people residing therein.
ART. VI. The Island of Pines shall be omitted from the boundaries of Cuba specified in the Constitution, the title of ownership thereof being left to future adjustment by treaty.
ART. VII. To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Cuban Government will sell or lease to the United States the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.
ART. VIII. The Government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.
With the testimony of our greatest consideration, very respectfully, the President,
DOMINGO MÉNDEZ CAPOTE. (From "Translation of the Proposed Constitution for Cuba, the Official Acceptance of the Platt Amendment, and the Electoral Law." Publ. by the Division of Insular Affairs, War Department, Nov. 1901.)
THE ORGANIZATION OF GOVERNMENT
Governmental Activities of Three Kinds.—It is commonly agreed among political thinkers that governmental activities are of three kinds: legislative, executive, and judicial. The legislative activities include the formation of and deliberation upon the commands of the government; the executive activities include the enforcement and administration of the commands of the government throughout the state; and the judicial activities include the decision respecting the construction and application of the commands of the government.
Theory of Corresponding Separation of Governmental Powers.-Although this distinction between the classes of governmental activities was recognized by Aristotle and reiterated by Cicero, the separation of governmental powers to correspond to these classes of activities was not clearly made in ancient or medieval political society. From early times the executive had concentrated in his own hands all political powers. What semblance of separation in the exercise of these powers appeared was due merely to administrative convenience. King Solomon himself made, executed, and decided the laws of his people. The ultimate legislative, legal, and executive power of Louis XIV in seventeenth-century France was unquestioned, however great the number of departments required by the complexity of government.
The growth of liberal ideas in relatively modern times is responsible for emphasizing the necessity of separating the powers of the government among mutually independent departments. The argument that only by such separation could the liberty and highest interests of the people be conserved