The editorial policy of the REVIEW is in thorough accord with the welldefined platform and purpose of the Association. It describes itself as a magazine "advocating the maintenance of constitutional government and recording its progress at home and abroad." It is a part of its purpose to keep its readers informed of the interesting changes and developments in the systems of constitutional government in the several states and in foreign countries. And these are stirring and most interesting times, when dynasties come crashing to earth and new republics spring up overnight. But also,

recognizing the fact that the mission of the Association is distinctly educative, a chief aim of the REVIEW is to carry on the propaganda of the Association by the presentation of sound and wellreasoned articles by writers of recognized ability and authority. In this, its service is not so much to instruct the members of the Association as to furnish them with ammunition by means of which they, personally and individually, may help to spread the doctrines for which the Association stands and combat the rising tide of untempered radicalism.

The Hon. Mr. Justice Riddell, a distinguished member of the Supreme Court of Ontario, and well known both there and in the United States as an eminent authority on constitutional law, has favored our readers with an extremely interesting and valuable article on the practical working of the constitution of his country under the stress of wartime conditions, the first installment of which is printed in this number. Last year Justice Riddell delivered a course of lectures at Yale, on the Dodge foundation, which were afterwards presented to the public in book form under the title "The Constitution of Canada in Its History and Practical Working." The editor of The editor of this review had much pleasure and profit in reading that volume, and said so in a notice of it which he wrote and which will be found in the October, 1917, number of the REVIEW, at page

193. But it appears that in his remarks upon the constitutional protection of private rights and property in Canada as compared with the United States he may have laid himself open to misconception. It is no less a pleasure than a duty to give publicity to the following communication from Mr. Justice Riddell:

"Dear Sir: I desire to thank you for the courteous and appreciative review of my Dodge Lectures in your October number. 'Nevertheless, I have somewhat against thee.' You seem to question my statement that 'in Canada nobody is at all afraid that his property will be taken from him; it never is in the ordinary case. Our people are honest as peoples go, and would not for a moment support a government which did actually steal; a new government would be voted into power and the wrong righted,' and you suggest that

the case of Florence v. Cobalt (1908), 18 Ont. L. R., 275, indicates something different. I can quite understand your views. It may be that I, like a much greater man, have a single-track mind. At all events, when, in the Dodge Lectures, I used the language you quote, I was discussing legal power only, ultra vires or intra vires. I had not in mind anything but law, and did not mention all the facts. At the trial I treated the case as one purely of law, and held that, assuming that the plaintiff company had the ownership of the land, the legislature could legally take it away. In the court of appeals the other tack was taken. That court went into the facts and held that the plaintiffs had not made out their claim. The Judicial Committee pursued the same course, with the same result. Both courts agreed with me as to the law, the court of appeals devoting three pages to the law as against ten on the facts, the Judicial Committee two and a half pages to the facts and one short sentence to the law. I was assured by the Prime Minister of Ontario, Sir James Whitney, that if the courts should hold that the plaintiff company made out a case on the facts, they would be compensated as for property taken by eminent domain. The matter was spoken to in the House of Assembly, and the same ground was taken by the Government. No one who knows anything of our political methods in Canada will need to be told that if a government could be rightly accused of taking private property without just compensation, it would stand little chance at an election. Consequently, no government has ever done such a

me.

thing. It has always been sure of the facts, and 'nobody is at all afraid that his property will be taken from him.' Will you let me add that I have not a scrap of the missionary spirit about We Canadians are too poor and too busy to bother about recommending our constitution to others. All we care about is to see that it is made to suit us. We are always glad to explain it, but we do not imagine it will suit all others. We say with Burke: 'If you ask me what a free government is, I answer that it is what the people think so, and that they, and not I, are the natural, lawful, and competent judges of the matter.' I, of course, understand that the American people, lawyers and others, prefer their own Constitution. All peoples have the constitution they deserve; all free peoples the constitution they prefer; if it did not suit them, they would change it. William Renwick Riddell."

Now, it may be conceded that no intelligent person would doubt the entire willingness of any government which might be in power in Canada to make just compensation to any person whose property was taken from him by governmental act or authority. And yet it may well be (and this is all the reviewer meant to say) that people in the United States, long habituated to the strict limitations upon the legislative power in their own own constitutions, whereby they have sought to safeguard the rights and liberties of the individual, feel more secure in knowing that the legislature cannot legally do certain things (the courts would not let them) than if the protection of their rights depended upon the willingness

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.

66

'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 con

sideration 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