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CHAPTER IX

THE

THE EXECUTIVE

HE executive power, then, must be strong and efficient. "The executive power," says Adams, 'is properly the government." But "the sovereignty," he further says, "is in the parliament or legislative power; not in the king or executive." And again, the legislative and executive powers being "naturally distinct," "the legislative power is naturally and necessarily sovereign and supreme over the executive; and, therefore, the latter must be made an essential branch of the former, even with a negative, or it will not be able to defend itself, but will be soon invaded, undermined, attacked, or in some way or other totally ruined and annihilated by the former." This has very much the appearance of a contradiction and a non sequitur all in one sentence. The distinction between the executive and the legislative powers would seem to require that the executive should not be in the legislature, nor a distinct branch of it, and should not participate in or interfere with its supremacy and sovereignty. Of course Adams's words above quoted are merely unprecise, and what he meant is that the sovereignty is not in the king alone nor in the parliament alone, in the narrow sense of this term, but in the parliament, in the wide sense, as composed of lords,

I IV., 581, cf. 584; "the essence of government," 585.

2 V., 322; similarly 428, 431.

3 IV., 579. Remember that in his early period the sole reason he assigned for the executive negative was to give power to the executive to preserve its own and the judiciary's independence: above, p. 9 n., cf. p. 75.

4 Adams expressed satisfaction that in our States the "executive is excluded from the two legislative assemblies, " iv., 492.

commons, and king.' But the king is then more powerful than either of the other branches of the legislative, since beside his legislative power, equal to theirs, he has the executive power in addition. If, indeed, the executive were entirely out of the legislative, there might be need of a check against the encroachment of the legislature upon the executive; but the balancer may be sought elsewhere, and be found in the judicial power; to which subject we shall revert when we come to examine Adams's account of that department.

Now, it is primarily the possession of the veto that constitutes the executive a branch of the legislative. Against the absolute veto, and proportionally against any modified veto, there are weighty objections. Against it may be urged, on the one hand, that it is unnecessary for defending the executive against encroachments, if there be a judiciary and a definite constitution; which, to repeat, is reserved for later discussion. Moreover, the same reasoning would equally well call for directly arming the judiciary with this weapon of self-defense, especially as the judiciary was usually considered the weakest department.3 On the other hand, that it exceeds its purpose, since it may be used against mere laws that are not encroachments, and thus enables the executive to block legislation desired by the people. Adams speaks of the case of a chief magistrate "wantonly" using his negative "for

He would agree with Nevill, that "the sovereign power in England is in King, Lords, and Commons," Plato Redivivus, p. 109.

2 As was actually proposed, in conjunction with the executive, and in a modified form, by the "Virginia plan,” art. 8, in the Philadelphia Convention and urged by Madison: see Elliot's Debates, v., 128, 151-5, 164-6, 344-9, 428-9. Cf. also Jefferson, Works, ii., 329, 586.

3 E. g. by Hamilton in The Federalist, No. 78, and Works, Lodge's ed., vii., 286. Cf. Jefferson, Works, vii., 322, 404.

other purposes," as one that "can rarely happen" (v. 181). He forgot that the wanton abuse of the negative by Charles I. was a principal cause of the uprising which forcibly unseated him and led for a time to another system and eventually to the abolition of that power in England. There was also abundant experience of such abuse in our colonial governments.❜ Continued experience since Adams's day only confirms, what might have been anticipated, that the veto, instead of "rarely," is habitually used "for other purposes" than that of defending the executive, whether "wantonly" or not being a matter of opinion, the fact remaining that the judgment of one man is permitted to overbear the judgment of two assemblies. Further

This negative was an object of special aversion to Milton (see below); and even the more moderate Nevill, who approved the negative of the Lords, Plato Redivivus, pp. 132-3, 272-9, deprecated it, 128-32, and would restrict it by committees appointed by Parliament, 256–60.

2 In the Convention Franklin cited the misuse of the veto by the Pennsylvania governors, Elliot's Debates, v., 152.

3 When Jackson began to make a frequent use of the veto, some of his opponents alleged it was intended only for constitutional objections. But this appeared a “novelty" to the aged Madison, who wrote that, beside serving as "a shield to the Executive department," "a primary object of the prerogative most assuredly was that of a check to the instability in legislation," Writings, iv., 369. He had himself said in the Convention: "The object of the revisionary power is twofold-first, to defend the executive rights; secondly, to prevent popular or factious injustice," Elliot's Debates, v., 538. He referred, in the later passage, also to The Federalist, where in No. 73 (by Hamilton) the former was called its "primary," and the latter its "secondary," purpose. Hamilton, in fact, repeated that the President ought to veto any measure he thought either unconstitutional or pernicious, Works, vi., 368, cf. iv., 297. In the Convention, too, Gerry had confined its purpose to securing the executive from legislative encroachment, Elliot's Debates, v., 345; but this had immediately been denied by Mason, ib., 347-8, and Gerry had afterward spoken of the defense of the executive department as "the primary object of the revisionary check," 537, leaving room for a secon

more, this power may be used to support the executive magistrate in encroachments of his own,—and we have had experience of this also.1

2

But the greatest objection to the executive veto is the one above hinted, that it mixes the executive with the legislative, and thus violates the principle, laid down by Adams as fundamental, of the separation of the three departments of government. This, indeed, is the great modern discovery which Adams has celebrated at the outset, and which really ought to undo the confusion anciently made. For the veto power in the hands of the executive chief is not a "noble invention," as we have seen Adams call it too, but had an ignoble origin in the days when to Augustus, already princeps and imperator, was further added the tribunitian power of negativing the acts of the Senate. That tribunitian power had really represented the power of the plebs, and supplied the place of what in modern days is the dary. Wilson even wished to give the negative likewise to the judiciary for both these purposes, ib., 344.

1 E. g. when Lincoln tried to put through a system of reconstruction on his own authority, he clearly invaded the authority of Congress and occupied the whole field of legislation; and when he vetoed the Congressional reconstruction bill, he used the veto power to uphold his own usurpation. As Johnson followed his example, most of the evils of the reconstruction period hailed from this faulty clause in our Constitution.

This objection against assigning a veto to the executive does not appear to have been advanced in the Convention, but it was urged against the above-cited proposal to join the judiciary here with the executive; to which it was replied that the intention of the veto was precisely to keep the departments separate by enabling the executive and the judiciary to defend themselves, by Madison, Elliot's Debates, v., 347, cf. 164-5; by Morris, 348; cf. Wilson, 151.

3 The tribunitian veto was originally the power of quashing a law already existing by forbidding the execution of it. But the exercise of this power gave importance to its non-exercise, so that, in the hands of the Emperors, the refraining from using it, that is, giving consent, came to be regarded as indispensable for the making of the law.

power of the lower house to negative the acts of the upper house; and when it was taken from the lower people's representatives, the tribunes, and conferred upon the executive chief, it was wholly misapplied, and was explainable only by regarding the executive chief also as the representative of the same people. Then, when it was later recovered by the people (or never wholly lost by the peoples of the north), to leave (or to place) it in the hands of the executive chief is both to undo and not to undo, and makes the mess of having two rival representatives of the people, both the lower house and the executive chief. Seeking a precedent still earlier, one may reply that in primitive governments the king or chieftain always took part in the assemblies of the people. But this he did merely as one of the people himself. And so, when the people are excluded and only their representatives, chosen ad hoc, are admitted, the king too, or the executive chief, instituted for another purpose, ought to be excluded. The true theory is that the so-called first magistrate is the head of the department which is to administer and execute the laws made by the representatives of the people. If he does not like the laws he is ordered to enforce, he may resign. Being chosen for this purpose, he has no more to do with the making of the laws, than any other magistrate or citizen.' He may give advice,

I

And perhaps the first instance of the triple negative was the atrocious bargain struck by the triumvirs, Cæsar, Pompey, and Crassus: “ne quid ageretur in republica, quod displicuisset ulli e tribus," Suetonius, Julius, c. 19.

2 Cf. Milton: "If the king be only set up to execute the law, which is indeed the highest of his office, he ought no more to make or forbid the making of any law, agreed upon in parliament, than other inferior judges, who are his deputies," Eikonoklastes, ch. vi., § 104; "nor was he set over us to vie wisdom with his parliament, but to be guided by

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