affirmative covenants and physical sanctions. And to cap the climax of that scheme's iniquities, they compromised the whole plan by linking it up with an impossible settlement, actually giving the league more power to enforce the settlement than it has to preserve peace. Disentangled from the European treaties of peace, its covenants construed as self-denying and its guaranties as voluntary, the League of Nations presents an altogether admirable scheme of organization. It is a great misfortune that the United States has not found a way, safeguarded by adequate reservations, to participate in its councils and in the new court of justice which it has just created. We cannot hope to maintain peace either with or without affirmative covenants and physical sanctions, until the slow processes of evolution through education have taught us to think and act differently in international relationships. The immediate opportunity is a more modest one. By organization we may conserve what has already been achieved. The importance of this is not always appreciated. We may also equip ourselves much more effectively to meet current international needs. And, above all, we may direct and hasten the processes of evolution by strengthening and improving the foundations upon which the superstructure of peace must eventually

repose.

It has been my purpose to suggest that world organization ought to be grounded solidly upon the foundations laid in past experience, that this has been satisfactorily achieved in the structure of the existing league, but that world organization for the present should be without affirmative covenants or sanction of physical force. Such a program is conservative. Is it worth effort and sacrifice? It seems to me that it is not only worth effort and sacrifice, but that it offers what is perhaps the greatest opportunity for constructive achievement in international affairs since the time of Grotius.

Consider the effect of such an organization upon the development of international law. It will be agreed, no doubt, that a conspicuous imperfection in international law has been its unreality-the impractical and unsubstantial character of many of its rules. This has been due largely to the circumstance that of

all formulating agencies the juristic writings have been easily the most influential. There has been nothing in international law that is really comparable to the influence of judicial decisions, administration, and legislation upon the growth of municipal law. Modern developments in international organization have begun to exert faintly an influence which is somewhat comparable. Is it too much to hope that a program of world organization may accelerate and strengthen this tendency and so make it possible eventually to redeem the law of nations from its unreality.

It will be agreed also that another characteristic defect in international law is its confusion at many points with the uncertainties and intrigues of diplomacy. How much depends, for illustration, upon the anomalous rule in regard to recognition. By withholding recognition a new community may be deprived, with disastrous effect, of the status to which it ought to be entitled, or an old state may be partially outlawed by refusing to recognize a change in government. And the decision or decisions in each instance may be made in secret in the foreign offices of the more influential powers. This, from the legal point of view, is an abominable situation. With the nations organized, there need be no justification for its continuance. In this and other respects it may be possible through organization to develop clearer delimitations between the province of international law and the domain of the diplomat. Finally, who would deny that the gravest of all deficiencies in a very imperfect system has been the meager development of peaceful remedial processes and the remarkable emphasis placed upon war. World organization should change the emphasis. Instead of peace conferences devoted to the laws of war, we may hope for peace conferences concerned with the laws and problems of peace. The way will be prepared for the development of the most undeveloped and most important part of the international system.

World organization promises no millennium, but it does promise new and greater opportunities for progress in the maintenance of peace. By the fundamental traditions of its foreign policy and by every consideration of self-interest, the United States is required to take a helpful and an influential part.

MINISTERIAL RESPONSIBILITY VERSUS THE

SEPARATION OF POWERS

CHARLES GROVE HAINES

University of Texas

Formerly political scientists were inclined to criticize the American theory and practice of the separation of powers in the federal and state governments and to commend instead the cabinet or parliamentary form of organization. Thus Walter Bagehot, Sir Henry Maine, Woodrow Wilson, Frank J. Goodnow, along with many others, pointed to the advantages of cabinet or parliamentary government over presidential government as developed in the United States. A consensus of opinion was expressed by Wilson who said, "As at present constituted, the federal government lacks strength because its powers are divided, lacks promptness because its authorities are multiplied, lacks wieldiness because its processes are roundabout, lacks efficiency because its responsibility is indistinct and its action is without competent direction."1 At one time the American plan of separation of powers was compared unfavorably with the French system in which governmental powers were divided into two branches-a policy-forming branch or "Politics" and a policy executing branch or "Administration." On another occasion the tripartite system of the separation of powers was charged with responsibility for much of the political corruption prevalent in American politics. The same theory of separation has often been condemned as requiring too many checks and balances and as involving a do-nothing policy for legislative and executive officers. It has been not uncommon for practical statesmen, for teachers of government and others inter1 Wilson, Congressional Government, p. 318. 2 Goodnow, Politics and Administration.

Ford, Cost of the National Government, ch. vi.

Howe, "The Constitution and Public Opinion," in Proceedings of the Academy of Political Science (October, 1914), p. 7.

ested in public affairs to recommend the adoption of a modified form of cabinet government.for federal and state governments in the United States.

Although the lack of direct connection between the legislative and executive departments of the federal government has resulted in such obvious weaknesses and incongruities that many public men have urged important modifications of the present arrangements, and although the same conditions were, in part, responsible for the impotence of the federal government to deal effectively with the problems of peace and reconstruction, political developments of recent years have tempered somewhat the opposition to the American plan of separation of powers and have dulled the enthusiasm of the advocates of cabinet government. For example, it was freely predicted in England that even before the war, cabinet government was breaking down, and that something of a radical reorganization was necessary. The cabinet, said Lord Lansdowne, “became an unwieldy body. If only a few of them took part, the cabinet ceased to be representative. If many of them took part, the proceedings tended to become prolix and interminable, and it is a matter of common knowledge that reasons of that kind led to the practice of transacting a good deal of the more important work of the government through the agency of an informal Cabinet." It is a matter of common observation that the weaknesses of cabinet government revealed before the war were greatly augmented and resulted in an almost complete breakdown of the cabinet system during the war. The gradual evolution of the inner cabinet and the construction of an imperial cabinet left comparatively little of the former system in effect in the last years of the conflict. In the light of this experience Englishmen have seriously considered whether, with the former cabinet system restored, it would not be advisable to provide that in time of war cabinet government should give way to a dictatorship modelled somewhat after the presidential office in the United States. In other respects Englishmen have been

Marriott, "The Machinery of Government," in 88 Nineteenth Century, 1086. Dicey, "A Comparison between Cabinet and Presidential Government," in 85 Nineteenth Century, 85.

considering some transformations of cabinet government which would bring their governmental machinery nearer to the form prevailing in America."

Cabinet government, it is well known, has not worked satisfactorily in France, and some French writers have been uncompromising critics of the system. But these criticisms savored of an academic flavor until the trials of war and reconstruction emphasized anew the defects of this form of organization. From these experiences as well as from the trend of politics prior to 1914, Frenchmen have come to favor two proposals which would inaugurate in France a separation of powers modelled in certain essential respects after the American plan. The first of these proposals, expressed in the language of President Millerand, is that the nation's will "manifested by the voice of its representatives, needs, in order to be accomplished and respected, a free executive power under the control of Parliament." It is the express intention of the newly elected president to participate of his own initiative in the foreign affairs of the nation and to exercise in other respects a "free executive power," a policy which, if carried out to any considerable extent, will have a tendency to change the government of France in the direction of presidential government. The other proposal, also referred to in the address of President Millerand, is the establishment of an independent judiciary with the power to review legislation along lines similar to the practice of American courts. Those supporting this proposal are in control of the French government, and it is thought to be only a matter of time until either by amendment to the constitution or by judicial interpretation based on the former declarations of rights French courts will be exercising the power of judicial review of legislation. With a free executive power

Cf. Report of the Machinery of Government Committee, Lord Haldane chairman (1918).

8 President Millerand announced in this connection that he intended to select premiers who would carry out his policies, and thus far he has managed to retain the dominant position.

See Lambert, Le Gouvernement par les Juges et la Lutte contre la Législation Sociale aux États-Unis—L'expérience Américaine du Controle Judiciaire de la Constitutionalité des Lois, (Paris, 1921).