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THE FEDERAL EXECUTIVE



THE

FEDERAL EXECUTIVE



BY



JOHN PHILIP HILL

FORMERLY UNITED STATES DISTRICT ATTORNEY
FOR MARYLAND




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BOSTON AND NEW YORK

HOUGHTON MIFFLIN COMPANY

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1916



COPYRIGHT, I916, BY JOHN PHILIP HILL
ALL RIGHTS RESERVED

Published April iqib



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PREFACE

Even since 1903, when this book was started, many
important changes have occurred in the Federal Execu-
tive. In 1903 there was no single book that adequately
j treated the President's Cabinet and the executive de-
^ partments. Since then several books on aspects of this
•^ general subject have been written. With a few excep-
X tions (notably Dr. Learned' s admirable book on The
President's Cabinet, Dr. Fairlie's The National Adminis-
V tration, and Mr. Haskin's The American Government),
these are merely compilations from the annual reports
> of the heads of the executive departments, and other
government publications. The development and delim-
^ itation of the functions of the Executive are an index of
the growth of the Federal Government. Much remains
to be written about it. In 1903 I was Assistant in Gov-



^ ernment in two courses given at Harvard by Pro-



fessor Frederic J. Stimson and the Honorable Charles
J S. Hamlin dealing with American Government. In 1905
I gave seven lectures at Johns Hopkins for Dr. W. W.
Willoughby on "The Executive Administration of the
United States"; in the spring of 1912, at Goucher Col-
lege, three lectures on the "Creation and Development
of the Cabinet"; and in November, 1912, two lectures at
the University of Virginia, one on "The Growth of the
Cabinet-Council Idea in the Federal Executive" and



vi PREFACE

the'other on " The Department of Justice." The purpose
of this book, based upon the above lectures, is to add a
little to the studies on the subject and to assist in an
understanding of the creation, development, organiza-
tion, and functions of the Federal Executive. To-day,
the population of the United States is 101,208,315, ex-
clusive of Alaska and the insular possessions. These
people and their vast riches are not adequately pro-
tected from foreign interference. A thorough under-
standing of the Federal Government of to-day is the
first step toward proper National Defense.

John Philip Hill.

3 West Franklin Street,
Baltimore, February, 1916.



CONTENTS

I. The Federal Government 1

II. Creation of the Executive Departments and the

Cabinet 12

III. Development of the Executive Departments and

the Cabinet 27

IV. Status of the Heads of the Executive Depart-

ments COLLECTIVELY, AS AN ADVISORY COUNCIL OR

Cabinet 41

V. Status of the Heads of the Executive Depart-
ments INDIVIDUALLY, AS CONSTITUTIONAL OFFI-
CERS of the Government 52

VI. Organization of the Executive Departments . 65

VII. Functions of the Executive Departments in Main-
taining a " More Perfect Union." The Depart-
ments of State, the Treasury, and the Interior 76

VIII. Functions of the Executive Departments in
"Insuring Domestic Tranquillity." The De-
partments of War, the Navy, and Justice . 121

IX. Functions of the Executive Departments in
"Promoting the General Welfare." The De-
partments of Agriculture, Commerce, and
Labor 158



viii CONTENTS

X. Functions of the Executive Departments in Se-
curing Certain of "The Blessings of Liberty."
The Post-Office Department 182

XI. The Chief Executives and the Development of

the Executive Departments 194

XII. Probable Developments in the Federal Execu-
tive 215

APPENDIX

A. List of Presidents and Vice-Presidents and the

Length of Service rendered 239

B. The Constitution of the United States of America 240

INDEX 259



THE FEDERAL EXECUTIVE



THE
FEDERAL EXECUTIVE

CHAPTER I

THE FEDERAL GOVERNMENT

Lord Bryce, in his introduction to the most recent
edition of "The American Commonwealth," says,
"Thoughtful Europeans have begun to realize, whether
with satisfaction or regret, the enormous and daily in-
creasing influence of the United States." Most Ameri-
cans are so occupied with the myriad interests that are
creating this enormous and increasing power that they
do not realize the great changes that are going on in the
Government of the United States itself. In October,
1914, the American Bar Association celebrated at Wash-
ington the one hundred and twenty-fifth anniversary of
the Supreme Court. In this century and a quarter, al-
though the questions with which it deals are somewhat
different from those it considered in 1789, the organ-
ization and functions of the Supreme Court have not
changed. Should a celebration be held of the one hun-
dred and twenty-fifth anniversary of the creation of the
Federal Executive, most of the celebrants would be
amazed at a realization of the changes that have taken
place in the National Administration since General
Washington first became President.



2 THE FEDERAL EXECUTIVE

The Chevalier de Pontgibaud (Marquis de More),
who had served through the Revolution as aide-de-
camp to the Marquis de Lafayette, revisited the United
States a few years after the institution of the Federal
Government. He recorded : x —

"The Government officials were as simple in their
manners as ever. I had occasion to call upon Mr.
McHenry, the Secretary of War. It was about eleven
o'clock in the morning when I called. There was no
sentinel at the door, all the rooms, the walls of which
were covered with maps, were open, and in the midst of
the solitude I found two clerks, each sitting at his own
table, engaged in writing. At last I met a servant, or
rather the servant, for there was but one in the house,
and asked for the Secretary. He replied that his master
was absent for the moment, having gone to the barber's
to be shaved. Mr. McHenry's name figured in the State
Budget for $2000 (10,500 francs), a salary quite suffi-
cient in a country where the Secretary for War goes in
the morning to his neighbor, the barber at the corner,
to get shaved. I was as much surprised to find all the
business of the War Office transacted by two clerks, as I
was to hear that the Secretary had gone to the barber's."

Should the Chevalier visit the War Department and
the other executive departments of the Government to-
day, he might find the government officials as simple in
their manners as before, but he would find a very differ-
ent War Office and a very different Federal Executive
from that which so surprised him in the early days of the
1 A French Volunteer of the War of Independence, p. 124.



THE FEDERAL GOVERNMENT 3

Republic. The change in the Federal Executive is one
of the most remarkable things in the history of the
nation. Let us consider for a moment the status of one
of the executive departments then and now. Nothing
more strikingly illustrates the growth of the Federal
Government and the development of the Cabinet and
the executive departments than the history of the
attorney-generalship .

The first Attorney-General of the United States, Ed-
mund Randolph, of Virginia, spoke of himself as "a sort
of mongrel between the State and the United States;
called an officer of some rank in the latter and thrust out
to get a livelihood in the former." l Even as late as 1817,
Secretary of State Monroe called attention to the fact
that the Attorney-General had at the seat of the Federal
Government "no apartment for business, no clerks, nor
a messenger, nor stationery or fuel allowed. These have
been supplied by the officer himself at his own expense." 2
Elbridge Gerry, of Massachusetts, and other jealous
guardians of the rights of the States, fearful of the power
of the newly created Federal Executive, provided Wash-
ington with only three advisers who were heads of ex-
ecutive departments, the Secretaries of State, Treasury,
and War, but from the first the Attorney-General was
considered a member of the advisory council composed
of these three Secretaries and himself, which has come
to be recognized as the President's Cabinet. Yet,

1 E. M. D. Conway, Omitted Chapters, p. 135.

2 Annals of Congress, 14th Cong., 2d Sess. (1816-17), pp. 699 and
700.



4 THE FEDERAL EXECUTIVE

although considered a member of Washington's first
Cabinet, Randolph was not the head of an executive
department, and was not even required to reside at the
Capital. His powers were insignificant and his compen-
sation so small that he was expected to support himself
from his private practice. The power and functions of
the present head of the Department of Justice, if they
could be known to the Anti-Federalists of Randolph's
time, would cause those eminent gentlemen to turn in
their graves.

The fiftieth Attorney-General no longer suffers for
lack of an apartment for business and a clerk, but he is
the head of the great Department of Justice, the total
number of whose officials and employees is about 5700, *
of which number 2070 are appointed by him. The
Solicitor-General, the Solicitor of the State Department,
the Solicitor of the Treasury, numerous assistant attor-
neys-general, attorneys, and special attorneys in Wash-
ington, numbering more than 300, 86 district attor-
neys, and numerous special assistants, assistant district
attorneys, and other officials, are at present under the
direction of that Attorney-General, who in the days of
President Monroe had neither stationery nor fuel.

Kipling tells us that in the twilight of the Magic
Jungle, in a sort of singsong to little Mowgli, old Baloo
recited, —

"As the creeper that girdles the tree-trunk,
The law runneth forward and back." 2

1 Register of the Department of Justice, 1915.
8 Second Jungle Book.



THE FEDERAL GOVERNMENT 5

And so, in anti-trust prosecutions, in the crusade against
the white slaver, in the enforcement of pure-food laws,
in interstate commerce cases, in the suppression of
fraudulent use of the mails, the power of the Attorney-
General runs forward and back throughout all the
States of this great Union, and the activities of the De-
partment of Justice wipe out state lines and from year to
year increase the power of the Federal Government and
its Executive, of whose growth they are the most strik-
ing illustrations.

The growth of the executive power has attended the
growth of the nation, and its development into its pres-
ent importance has been necessitated by the fusion
of the federation of States into a strongly centralized
American nation. To follow in detail the changes in the
organization of the executive departments, and to ex-
amine the methods and reasons of these changes would
take us far into the life history of the Republic.

In 1890, John Fiske wrote: "In signing or vetoing
bills passed by Congress the President shares in legis-
lation, and is virtually a third house. In his other capac-
ities he is the chief executive officer of the Federal Union ;
and inasmuch as he appoints the other great executive
officers, he is really the head of the executive depart-
ment, not — like the governor of a State — a mere
member of it." l In 1908, Woodrow Wilson compared
the President, as the makers of the Constitution in-
tended him to be, with what he had actually become.
"His veto upon legislation was his only 'check' on
1 Civil Government in the United States, p. 232.



6 THE FEDERAL EXECUTIVE

Congress, — was a power of restraint, not of guidance.
He was empowered to prevent bad laws, but he was not
to be given an opportunity to make good ones. As a
matter of fact, he has become very much more. He has
become the leader of his party and the guide of the na-
tion in political purpose, and therefore in legal action." *
The theory expressed by Professor Wilson in 1908 has
been the practice of President Wilson as Chief Execu-
tive, and as a "third house" of the legislative depart-
ment he has certainly not confined himself to the powers
of the "third house" as described by Fiske. The Fed-
eral Executive has outgrown, naturally and properly,
the bounds ascribed it by the makers of the Consti-
tution.

The Executive, as it exists to-day, is one of the most
important elements in the life of the nation. To under-
stand the meaning of the national life a knowledge of the
Cabinet and of the organization and work done by the
Executive Departments is necessary, and while much
has been written of the executive power, little has been
written upon the administrative side of the Executive,
as carried out by the departments. As President Wilson
remarks, " It is easier to write of the President than of
the Presidency." 2 The voluminous reports of the heads
of the departments, the provisions of the various stat-
utes of the United States relating to the departments,
miscellaneous reports, congressional and department
records, all set forth the business that the great govern-

1 Constitutional Government in the United States, p. 60.

2 Ibid., p. 57.



THE FEDERAL GOVERNMENT 7

mental corporation conducts. They also show in detail
the methods by which this business is carried on. From
them the student may learn how the State Department
settles the rights of some naturalized citizen who desires
to revisit his former country, but who is claimed by that
country to be liable for military service, or how the
Republic of Panama sprang into life and American dom-
ination of the Isthmus was secured. In the same way
the methods of customs collections and post-office
establishments may be learned. A knowledge of these
matters is essential to an understanding of daily news-
paper discussions, reports of the debates and actions of
Congress, and of the position of the Government. After
a brief discussion of the creation and status of the execu-
tive departments, it is my purpose to set forth the
organization of these departments, and to indicate the
matters with which they deal and their methods of work.

Before doing this, however, it may be well to say a few
words about the Federal Government generally. In the
rush of our American life it is amazing how much we can
forget, and I shall be pardoned for speaking briefly of
things that we are all supposed to have once and for all
time learned in the schoolroom.

During the Revolutionary War, the common inter-
ests of the allied colonies, almost exclusively the carry-
ing-on of the war, were entrusted to the Continental
Congress. This body, possessing theoretically little
power, exercised, however, the greatest real power over
the allied colonies. It combined in itself only the legis-
lative and executive functions, for at that time there did



8 THE FEDERAL EXECUTIVE

not exist and there was no necessity for any common
judicial system for the allied sovereignties that later
became States of our Union. The executive functions
of the Continental Congress were exercised through its
various committees and officers, but furnished little
of permanent value to the American political system.
After the Revolution the government of the allied
States under the Articles of Confederation for a time
gave to the former colonies a more permanent and
stronger common life, but that weak Government soon
gave way to the present Constitution under which the
nation has attained federal life and power.

We learned in school that the Federal Government
of the United States consists of three coordinate and
theoretically independent branches, the executive, leg-
islative, and judicial. We all know in a general way
that the Congress makes the laws and that the Execu-
tive and the courts carry them out. The States' rights
men in the Constitutional Convention were extremely
jealous of the power of the Executive, and I shall show
you in the coming chapters that they, as States' rights
men, were justified in their fears, for to-day, while the
express train and the telephone have eliminated state
lines for all commercial purposes, the effect of recent
legislation is to efface state lines for many administra-
tive purposes. Before taking up the executive branch of
the Federal Government, it will be well to glance at the
Government as a whole.

The Executive consists of the President, and, poten-
tially, the Vice-President, — who, aside from the fact



THE FEDERAL GOVERNMENT 9

that he presides over the Senate, has no place in the
Government, — and the ten members of the President's
Cabinet. The Cabinet, as such, is not known to the
Constitution. The legal status of its members arises
from their being heads of the executive departments,
and after all they are legally only arms of the President.
The power of the President and his place in the na-
tional life is quite different to-day from the conception
of that office held by the framers of the Constitution.
They planned a Chief Magistrate, non-partisan, calm
and aloof from the throbbing political questions that
might agitate the legislative branch of the Government.
Above the turmoil of political parties the President was
dispassionately to carry out the laws in much the same
non-political manner as the Chief Justice was to head
the Judiciary. There were certain common interests
that drew the thirteen States together: they wished to
provide by the Constitution only for the needs as they
saw them then — an army for external use, a diplo-
matic service, also for external use, and a treasury to
get money for the above external uses. The framers of
the Constitution did not dream that to-day the Presi-
dent would be the leader of the dominant political party
in the nation ; they did not dream that he would be the
one man in the nation primarily responsible to the peo-
ple for the enactment into laws of their will; they did
not dream that the Chief Magistrate of the new Repub-
lic would exercise in time the combined powers of the
English King and his Prime Minister; but then they did
not dream that one arm of the President would be a



10 THE FEDERAL EXECUTIVE

Secretary of Labor, whose duties would run into the
domestic and industrial life of each of their jealously
guarded States. The creation of a Department of Labor
in 1913, one hundred and twenty-four years after the
inauguration of the Federal Government, for the pur-
pose of fostering, promoting, and developing the welfare
of the wage-earners of the United States, improving
their conditions, and advancing their opportunities for
profitable employment regardless of state lines, is the
farthest point in the development of a strongly central-
ized Federal Government. At the same time it is but
an indication of the enormous increase in the power of
the Executive. Alexander Hamilton and the Federalists
would find this increased power of the President quite to
their liking, but the President of to-day is a more power-
ful factor in the Federal Government than even they
dared expect in 1789. Party organization and the
machinery of legal primary elections were not thought
of in the days when President Washington gravely and
with due decorum considered the status of his Cabinet
and kept the Vice-President out of it; but neither were
express trains and telephones. We find the latter ex-
tremely convenient and the nation no longer fears the
power of the President.

Besides the Executive there are to-day in the frame-
work of the Federal Government two other branches.
With the Judiciary this book will have little to do. As
to the other branch of the Government, the Congress of
the United States, it is only necessary to say that, while
it theoretically makes the laws, more and more in these



THE FEDERAL GOVERNMENT 11

days of the political leadership of the President, in
much important legislation Congress merely enacts
into law the principles that the majority party has de-
clared in its platform. The Judiciary and the legislative
branch of the Government have departed little from the
theories of the Fathers. There are more courts and the
Congress is larger, but the fundamental concepts of
neither have greatly changed. Congress makes a greater
number and more far-reaching laws, but its machinery
is the same. The courts try more cases of a more far-
reaching character, but their machinery is the same.
The Executive has changed. In the coming years it will
change more. Seats in Congress for the members of the
Cabinet may come in time, and we may have places in
the legislative department for arms of the Executive for
which the Constitution does not specifically provide.
The development of the Cabinet and the executive de-
partments is the most interesting thing in the growth of
the Federal Government. Let us see on what basis and
out of what they were created.



CHAPTER II

CREATION OF THE EXECUTIVE DEPARTMENTS AND
THE CABINET

The executive business of the United States has,
since the organization of the Government, been carried
on by the executive departments, which have been in-
creased from time to time as the requirements of the
Government demanded. The Departments of State, the
Treasury, and War were created by the First Congress
in 1789, and the Department of the Navy was estab-
lished soon after. The Post-Office and the Department
of Justice had their beginnings in the same period, al-
though they did not take rank as executive depart-
ments till much later. The Department of Commerce
and Labor, created in 1903, the Department of Labor
carved from it in 1913, with the Agricultural and In-
terior Departments, belong to the latter half of the
history of the nation. There are to-day ten coordinate
executive departments.

The Constitution provides that "the executive power
shall be vested in a President of the United States of
America." * It then proceeds to declare the length of
time the President shall hold office, the method of his
election and the qualifications of a President. The sec-
tion contains no specific enumeration of the executive
power conferred. Goodnow, in his treatise on "Com-
1 Art. ii, par. 1.



CREATION OF THE DEPARTMENTS 13

parative Administrative Law," l says that these words
"executive power" meant "that the President was to
have a military and political power rather than an
administrative power. The meaning of these words is
further explained by the enumeration of the specific
powers which were granted to the President by the
Constitution. These are the same powers possessed by
the governors of the Commonwealths. They are the
power of military command, the diplomatic power, the
limited veto power, the power of pardon, the power to
call an extra session of Congress, to adjourn it in case of
a disagreement between the houses, and the power to
send a message to the Congress. The general grant of
the executive power to the President means little except
that the President was to be the authority in the
Government that was to exercise the powers afterward
enumerated as his. The only other enumerated power
is an administrative power, and it is also the only
purely administrative power that is mentioned clearly
in the Constitution. This is the power of appointment.
. . . Beyond the power of appointment he had, so far as
the express provisions of the Constitution were con-
cerned, no control over the administration at all."

The complex system of executive departments is not
provided by the Constitution. It has arisen by acts of
Congress, a slow and often tentative construction, pro-
vided as the national interests became more varied and
far-reaching, and the needs of administration became
more exacting. Our form of government is that denomi-
1 Vol. i, p. 62.



14 THE FEDERAL EXECUTIVE

nated as rigid because of its foundation on a written
instrument ; but like many of our governmental institu-
tions that are the product of gradual evolution, the law
regulating the proceedings of the executive depart-
ments, and the relations of the Cabinet to the President
and Congress, is the law of the unwritten Constitution. 1

The Constitution provides that the President "may
require the opinion in writing of the principal officer in
each of the executive departments, upon any subject
relating to the duties of their respective offices." 2 The
only other mention of the executive departments in the
Constitution follows the provision for appointment by
the President, with the consent of the Senate, of all offi-
cers of the United States whose appointments are not
otherwise provided for by the Constitution. By this
clause of the Constitution " Congress may by law vest
the appointment of such inferior officers as they think
proper in the President alone, in the Courts of Law, or
in the heads of departments." 3 Upon this meager
foundation have been created all ten great organiza-


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