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interpellation and enabled the government to put through a
number of emergency acts without delay. In June, 1915, a
coalition cabinet was formed under threat from the Unionist
party that it could no longer refrain from criticising the war
program of the government unless it were represented in the
cabinet. In turn, dissatisfaction was expressed with the coalition
cabinet, and the demand was raised for the creation of a smaller
body which could be released from' responsibility for the conduct
of the departments and devote its entire attention to the problems
of the war. A war committee of six members was then formed
within the coaUtion cabinet, arid with the assistance of a military,
naval and diplomatic staff it undertook a general direction of
war measures, subject to a limited control on the part of the
cabinet as a whole. Thus organized the coalition cabinet suc-
ceeded in maintaining the confidence of Parliament during the
critical period accompanying the introduction of conscription.
Criticism of the inefficiency of the war committee led, however,
to a further reorganization of the government, and in the presence
of a proposal that a council of war be formed, from which the
prime minister was to be excluded, Mr. Asquith resigned and
a new "War Cabinet" under the leadership of Mr. Lloyd George
succeeded to the control of the government.

The war cabinet was a constitutional innovation of a striking
character. It was not the result of a parliamentary vote, but
of an agreement among the leaders of the different parties.
Unlike the war committee it became directly responsible to
I Parliament, but it did not undertake the task of party leadership
\in the house of commons and its members attended the sessions
of Parliament only on special occasions. Its relations with the
larger body of ministers were somewhat uncertain. It ceased
to exercise any active direction of the administration, and merely
undertook to supervise in a general way the functions of the
departments and to adjust confficts of authority among the

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old and new ministerial offices. In consequence of the conif
plete elimination of the old Liberal leaders in the choice of the
war cabinet and of the important ministerial posts, a Liberal
opposition was formed in the house of commons; and Mr. Asquith,
-still holding the support of many of his former followers, several
times came to the rescue of the group which had ousted him from
the government.

Public opinion, as manifested in the press, welcomed the new
cabinet as giving promise of a more energetic and efficient prose-
cution of the war, and looked upon the departure from
constitutional precedent as fully justified by the needs of the
situation. "It is better," said a writer in the Fortnightly Review,
"tiiat the war should destroy the traditional disorganization of
democracy than that the traditional disorganization of demo- . -
cratic government should destroy democracy itself and the ,
British race." On the other hand protests were heard from the
Liberal press, not only to the effect that the "new kind of govern-
ment" created an autocracy without improving the organization
of the administrative departments in any respect, but also that
it was dangerous that vital decisions, which would end the war
or prolong it indefinitely, should be taken by four or five men
alone, and that the ministers nominally responsible to Parlia-
ment for foreign policy, the army, and the navy, should have
only a consultative voice in their decisions.

The creation of the war cabinet and the manner in which it \
imdertook to exercise its authority resulted in the practical ^
suspension of parliamentary government. Not only did the
leading ministers discontinue attendance in Parliament, but a
number of the other ministers had no seats in Parliament; so
that information as to the policies of the government had to be
obtained from undersecretaries, while Mr. Bonar Law, the
former Unionist leader, now a member of the war cabinet, acted
as a sort of "sentry, set on guard to protect the inner cabal from ^
parliamentary snipers," ready to give the alarm should his defense
of the government fail to allay distrust. Thus the unity of the
executive and legislative departments, characteristic of the''
cabinet form of government, was actually replaced by an auto-

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cratic executive, leaving Parliament with scarcely a semblance
of its constitutional function of direction and control, and with
no legislative functions other than the occasional passage of
laws called for by the cabinet. The acquiescence of Parliament
in so complete a reduction of its authority could only have been
the result of its clear realization that it was better to give even
a less efficient government a free hand than to risk the delays
incident to change.

By contrast with the more practical attitude of the British
Parliament, the French chamber of deputies insisted upon exer-
cising its legislative functions. Its great committees dealing
with the army and with foreign affairs held practically continuous
sessions, to permit which the rules of parUamentary procedure
were suspended; and while abstaining from interference in
military affairs the committees undertook to give orders to the
executive department and to exercise a direct control over the
administrative services of the government, in order to insure
that the supplies for the army should be equal to the emergency.
I At the same time the chamber continued to hold the cabinet
^directly to account for its policies; and cabinets headed by Viviani,
Briand, Ribot, and Painlev6, rose and fell in succession, until
the advent of C16menceau, in November, 1917, gave stabihty
to the government. In spite of the emergency the French
chamber departed little from its constitutional methods during
the war, insisting both upon dictating policies to the executive
and upon criticising the government for its failures.

In addition to the problem of reorganizing its government so
I as to secure a more efficient administration and a greater unity
of control. Great Britain was obliged to enlarge greatly the
constitutional powers of the government. On the one hand it
was necessary to bring the entire industrial activities of the
country to the support of the miUtary forces and on the other
hand restrictions had to be placed upon the normal freedom of
the individual citizen in order to prevent interference with the
conduct of the war. Both of these objects were accomplished
by the passage of the Defense of the Realm Act, together with
its successive amendments. The assumption of control by the

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government over the industrial resources of the country was
gradual and tentative, progressing by degrees from control over
the essentials of military provisionment to the complete mobili-
zation of all resources, including the production and consumption
of food supplies. The railroads were promptly brought under
direct control of the government, and their administration was
placed in the hands of a committee of railway managers with
the president of the board of trade as chairman. Control over
the coal mines was not at first deemed necessary, but the refusal
of the miners' federation to accede to the regulations laid down
for labor in other industries, and the threat of an impending
strike, ultimately forced the government to take over the mines,
and a new department was created to administer them. The
prices of iron, steel, and copper were fixed, and priority regula-
tions were drawn up in order to secure to the various industries
their essential supplies in the order of their importance for the
prosecution of the war. Serious labor difiiculties were experi-
enced from time to time in connection with the railways, and the
government was finally obliged to apply the law declaring strikes
illegal until resort had first been had to the arbitration of the
minister of labor. Compulsory arbitration of disputes was pre-
scribed in the case of the munition factories, and a drastic system
of "leaving certificates," which later had to be abandoned, was
adopted in the eflFort to check the flow of labor from one factory
to another. On the whole the record of British war administra-V^
tion was marked by a gradual and tentative assumption of
control over the national life, resulting in delays which on more
than one occasion were little short of fatal.

If British democracy was somewhat slow to realize the neces- \
sity of assimiing control over the industrial life of the country
and slower still to organize its government upon an efficient
basis, it early recognized the necessity of placing restrictions
upon the freedom of its citizen body in order to prevent the
giving of aid to the enemy. The Defense of the Realm Act
and its amendments struck down at one blow the traditional^
rights of British citizenship and instituted a regime of military ^
law which was nothing short of a revolution in British consti-

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tutional procedure. The Crown in Council was empowered to
authorize the trial by court martial, and in the case of minor
offenses by courts of summary jurisdiction, of persons violating
the regulations prescribed. These regulations were of a most
sweeping character, and were designed to prevent persons from
communicating with the enemy, from spreading false reports
or reports likely to cause disaffection to the government, and
, otherwise from giving assistance to the enemy or endangering
the successful prosecution of the war. Searches and seizures
were authorized without warrant and on the mere ground that
there was "reason to suspect'' that the premises were being used
in a way prejudicial to the safety of the realm. Freedom of
speech and of the press were both restricted to the point where
it was legally possible to impose penal servitude upon the speaker
or journalist who speculated upon the plan of campaign or criti-
cised the accommodations of the army camps. Drastic as these
regulations were, the British public submitted with Uttle resis-
tance, realizing that the presence of enemy aliens made it neces-
sary to confer arbitrary powers upon the government, and
apparently confident that as soon as the emergency was over
their traditional rights would be restored to them.

The difficulties experienced by British democracy in adapting
itself to the demands of the war have resulted in a number of
plans of reconstruction bearing both upon the organization of
the government and upon its functions. The most important
of these plans perhaps have been those presented by the machin-
ery of government committee of the ministry of reconstruction.
The report of the committee first attempted to define more
precisely the relations of the cabinet to Parliament. It described
the essential functions of the cabinet as consisting in the deter-
minatioli of the poUcies to be presented to Parliament, the
supreme control of the national executive in accordance with
the policy prescribed by Parliament, and the continuous coor-
dination and delimitation of the activities of the several depart-
ments of state. The tentative suggestion was made that the
solidarity of the cabinet should be broken up by making the
individual members responsible to Parliament and removable

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by a vote of want of confidence. It further advocated that the
cabinet be reduced to a smaller body of ten or twelve members
in place of the twenty or more members of 1914. At the same
time the number of ministerial departments should be reduced
in accordance with a scheme to distribute the business of govern-
ment into ten main divisions, with occasional subdivisions. In
this respect the recommendations of the report form an interest-
ing subject of comparison with the present organization of the
national government of the United States and with the schemes
of administrative reorganization recently adopted by some of
the separate state governments. No general plan of admini-
strative reorganization has, however, been as yet actively under-
taken in Great Britain. Two new ministries, of health and
transport, have been established; and substantially the pre-war
cabinet has been revived.

The difficulties confronting the government of the United
States at its entrance into the war parallel in almost every case
those experienced by the British government. The outstanding
difiFerence between the political situation in the two countries
was due to the omnipotence of Parliament on the one hand and
the strict limitations of a written constitution on the other.
Parliament was the maker of the British constitution as well as
its instrument of government; and in consequence Parliament
could reorganize and enlarge the executive department and could
assmne whatever powers were necessary to meet the emergency
without question as to the constitutionality of its acts; at the
same time the unity between the executive and legislative
departments prevented friction between Parliament as a legis-
lative body and the cabinet and ministry as its executive com-
mittee. In the United States, however, there was the question
as to the extent of the war powers of Congress and of the Presi-
dent, there was the division of power between the central govern-
ment and the member states, and there was the formal separation
of the legislative and executive departments of the government.

The first and second of these constitutional difficulties were
overcome without marked loss of eflSciency, but the lack of
unity in the executive and legislative departments proved from

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beginning to end a serious handicap in the eflfective prosecution
of the war. The dissatisfaction of many of the leaders in Con-
gress with the personnel of the executive department and with
its methods resulted in numerous investigations of boards and
bureaus, and in a long-drawn-out contest between the President

1 and Congress as to the means of putting into effect the much-
needed reorganization of the administrative departments.

The lack of unity was, of course, not wholly due to the system
of checks and balances provided for in the ConstitVition. Legally
speaking there was nothing to prevent the closest cooperation
between Congress and the President. But as a practical matter
the absence of any control by Congress over the President natur-
ally led it to view with suspicion the exercise by him of those

I comprehensive powers which it had itself conferred upon him.

/ Congress could make appropriations, but it could not control

( the methods of spending the huge sums of money which it so
freely granted. Congress could bring the industries of the
country under the direction of the government, but it could not
control the agencies set up by the President for the effective
execution of the powers granted him. In consequence the
criticism in Congress of the conduct of the administration was

>for the most part destructive rather than constructive, and had
the eflfect rather of discouraging the country with the lack of
progress made than of stimulating the executive department to
greater efficiency in the prosecution of the war. But making
due allowance for the lack of cooperation between the President
and Congress due to personal reasons, it remains true that the

c^constitutional separation of the legislative and executive depart-
ments resulted in constant friction, in needless delay in the
passage of the necessary legislation, and in dupUcation of activi-
ties and extravagance of expenditure which under more critical
circumstances might have proved disastrous to the country-
It is a significant feature of a constitution which in other
respects narrowly hedges in t^fe departments of the government
that in respect to the conducii of war it confers comprehensive
and unrestricted powers upon the President and upon Congress
within their respective spheres. The President is made "corn-

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mander-in-chief of the army and navy of the United States, and
of the militia of the several states, when called into the actual
service of the United States." He is thus put in supreme control
of the military conduct of the war, and complete unity of military
command is secured. The powers of the President as com-
mander-in-chief are, however, limited to the direction of the
army and navy, and no new political powers may be assuined
by him on the basis of that authority. He may plan campaigns,
dispose of the military and naval forces, direct operations, and
execute the provisions of military law; but outside that sphere
he may not constitutionally act without express warrant of

Exceptions from this rule occurred during the Civil War
when President Lincoln, in the effort to suppress opposition to
the policies of the government, authorized searches and seizures
without warrant, and in spite of the protest of the Supreme
Court suspended the writ of habeas corpus. During the recent
war President Wilson kept more strictly within his constitutional
powers, but he did npt hesitate to use the influence of his office
as well as his power over foreign affairs to further the cause of
the country. His successive statements of the ideal objects for
which the United States had undertaken to fight undoubtedly
aroused an enthusiastic zeal in the minds of thousands who
would have responded but lukewarmly to an appeal based upon
the technical groimds of war. At the same time the declaration^
of the President that the victory of the allied cause would insure
the liberation of oppressed nationalities and the recognition of
the principle of self-determination helped to weaken the allegi-
ance of large numbers within the ranks of the enemy armies.
But apart from those powers inherent in his office, the President
remained during the war, as before, merely the executive officer
of the government, unable to act upon his own initiative and ^/
obliged to bide the time of Congress before he could take the '^
measures necessary to back up the army and navy with the /
required supplies of war. It is important, therefore, to dis-
tinguish sharply between what the President could do independ- /
ently as commander-in-chief and what he could do only after I
Congress had specifically authorized him to act.

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On its part Congress was for all practical purposes a legislature
of unlimited powers. By the Constitution Congress is given the
toower "to raise and support armies." The grant of power is
comprehensive and unqualified, and it endows Congress with
authority to take all steps necessary to the successful prosecution
of war. What if the measures taken by Congress come into

' conflict with the normal operation of the provisions of the Con-
stitution? In such cases the war powers of Congress must be
regarded as paramount. The reserved rights of the separate
states and the guarantees contained in the first eight amend-
ments must be restricted to the extent necessary to permit the

* free exercise of the war powers.

In the recent war, demands had to be made upon the entire
industrial resources of the country to furnish the materials
^needed to support the armies raised by the Selective Service
Act; and Congress was forced to bring imder the control of the
government a hundred forms of business life which in normal
times would have been completely beyond its control. In no
instance was the constitutionality of the assumption by Congress
'of these new powers successfully contested. The validity of
the Selective Service Act was questioned as being in excess of
the powers of Congress and in violation of other clauses of the
Constitution; but the court found no diflBculty in disposing of
the objections raised. Comprehensive and far-reaching, as were
the functions undertaken by the war industries board in deter-
mining priorities in respect to the production, delivery and use
of materials and supplies, as well as in fixing prices and regulating
methods of production, no question was raised as to the authority
of the council of national defense under whose direction it acted.

I The Shipping Board Act of 1916 and its subsequent amendments
brought the entire shipbuilding resources of the country, as well
as ships already registered, under the direct control of the govern-
ment. The production and distribution of food products and
fuels was regulated and prices were fixed where necessary. The
operation of the railways, telegraphs, and telephones was taken
over by the government in accordance with a contract for their
use, the terms of which were fixed by the government. If the

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government refrained from extending its control over the labor
engaged in essential industries and preferred to have recourse to
voluntary agencies for the settlement of industrial disputes, it
was not from lack of constitutional power to act in the case of
the laborer as in the case of the employer and his factory. Labor, /
indeed, successfully resisted the establishment of compulsory
arbitration tribunals. But while expediency dictated acquies-
cence in its attitude of opposition to any form of industrial
conscription, it would have been clearly within the power of
Congress to have applied compulsion to workers in essential ^
war industries as well as to the men in the army for whom the
munitions were being made.

Constitutional objections were raised in a number of cases
to the various laws passed by Congress to prevent interference
with the conduct of the war. In these instances the government
was not calling upon the positive aid of the citizen in the prose-
cution of the war, but was imposing restrictions upon the liberty
of the individual and thus coming into conflict with the bill c^

' \

ments with intent to interfere with the prosecution of the war
and particularly the oflFense of obstructing the operation of the
draft act. The amendment to the Espionage Act, known as
the Sedition Act, was directed against interference with the sale
of liberty bonds and against the use of language abusing the
form of government of the United States, the national flag, or
the uniform of the army or navy. In both instances the freedom a v
of speech guaranteed by the Constitution was held to be not \^
absolute, but conditional, that is, subject to such restraints as)
are necessary to protect the community against the menace of'
sedition or the defeat of its purposes in the war. Greater diffi-
culty was experienced by the court in upholding the application
of the Sedition Act, owing to the more remote connection between
language abusive of the form of government of the United States L
and the protection of the vital interests of the nation in the war; J
and a strong dissenting opinion was rendered by Justice Holmes
in a case involving such language when uttered under conditions

rights of the Constitution. The Espionage Act in its originaPM
form undertook to penalize the offense of making false state-

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which did not appear to him to indicate the intention of giving
aid to the enemy.

Sharp discussion in Congress and in the press took place over
the issue of a censorship of the press, and in the face of strong
opposition the provision asked for by the President was elimin-
ated from the Espionage Act. A modified form of censorship
was established, which consisted in the voluntary submission
of the press to the decision of the committee on pubUc informa-
tion with regard to the expediency of publishing news items
relating to the progress of the armies in the field. It would
seem clear, however, that if Congress had acquiesced in the view
of the executive department and created a compulsory censorship
similar to that set up in Great Britain by the Defense of the
Realm Act, the courts would have upheld its constitutionality.
The distinction is commonly made between a law penalizing
statements made in contravention of regulations prescribed and
a law requiring the approval of a board of censors before matter
may be published. Even the latter more drastic form of censor-

Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 57 of 77)