the executive seems to be carried too far for convenience in the United States. It would seem better that the ministers should have the function of speaking-though not the right of voting in the legislature, in order to afford them the opportunity of explaining and defending executive acts that excite criticism, and co-operating in certain kinds of legislation. The president should have this right also, in order that this communication with the legislature may not gradually transfer supreme executive power from him to his ministers.

We have further to observe that an executive appointed for a fixed period need not be monarchically organised, as the Federal Executive of the United States is. It would be quite possible to have a supreme executive organised like the English cabinet, or even one of which the members were practically more on an equality,3-elected for a fixed period by the legislature: though I think that, ceteris paribus, a higher standard of administrative efficiency is likely to be maintained if the heads of departments are appointed by a single head-whether this head himself be elected by the legislature or directly by the people. In any case the fixed period should be, if possible, sufficiently

1 There is nothing in the constitution of the United States to prevent this; though it has never been done since Washington's days. See Bryce, American Commonwealth, Part I. chap. ix.

2 It is for this reason that I have not been able to use Bagehot's conceptions of "Cabinet Government" and "Presidential Government," except in a quite incidental way since they seemed inevitably to mix up two questions which I wished to keep distinct, -the question of the relation of the executive to the legislature, and the question as to the more or less monarchical organisation of the executive.

In the English system, the equality of members of the cabinet, even if constitutionally established, could hardly be more than formal: since, when any serious disagreement between Cabinet and Parliament leads at once to the resignation of the former or the dissolution of the latter, individuals who have predominant influence in the House and the country must tend to have correspondingly predominant influence in the cabinet. But if the cabinet were separated from the legislature and appointed for a fixed period, the equality of voting power that might be secured to each member would have a much more substantial significance.

4 The Swiss Federal Council exemplifies this system: except that it has less independence than I should propose to give to the executive.

long to gain the advantages of stability, and yet not long enough to weaken the sense of responsibility materially.

By such a system some of the most serious disadvantages of parliamentary government would be avoided; especially if independence were further secured to the executive by a permanent ordinary budget-or at least one fixed for the whole duration of its tenure. In this case, even if the executive were appointed by the legislature, the motive for ambitious intrigues and combinations in the assembly would be much diminished, since they could have no immediate or certain effect in ousting the executive. And for a similar reason the executive would not be liable to be overthrown by sudden drifts of opinion within or without the assembly its administrative conduct during the fixed period would be judged as a whole at the expiration of the period.1

The system above described may be distinguished as that of a Periodical Executive; as compared with Parliamentary government, it would, as I have said, necessarily have one disadvantage, the danger of a temporarily insoluble conflict between the legislature and the executive. To reduce

this disadvantage to a minimum, it would seem better that the executive should be elected by the legislature than by the country, as then the two organs would at any rate begin with harmony. This would not materially diminish the independence of the executive; as it would not be dismissible by the legislature, and would not be re-elected— if at all-by the legislature that elected it.

In discussing the relation of the executive to the assembly of representatives, I have attached importance to the power possessed by the former of dissolving the latter. If harmony between cabinet and assembly is aimed at, on the principle that either is to give way if the other is supported by the electorate, then to give the cabinet the right of responding to a vote of "no con

1 It will be argued in the next chapter that a Periodical Executive is better suited than Parliamentary government to the traditional method of constituting the legislature of two co-ordinate chambers.

fidence" by a dissolution seems to be the simplest and most effective way of attaining the desired end. But if the executive is not to be displaceable by the assembly, the advantage of allowing it to dissolve the latter seems at least doubtful; since the chance of restoring harmony by obtaining an assembly in agreement with the executive is balanced by the danger of greater strain on the constitution if the new parliament agrees with its predecessor, the dissolution is then liable to have the air of an appeal to a judge whose decision is afterwards defied. It may, however, be thought desirable that the head of the executive-whether a president or a king who governs as well as reigns-should be fixed, permanently or for a considerable period, but should change his policy if it be disapproved by the people as well as by the assembly. If so, no doubt the people's sentiments might be conveniently tested by a dissolution; but if the system is intended to be stable, it would seem better for the monarch to ascertain them otherwise; since a change of policy is likely to involve a change of ministers, and if such a change were palpably and repeatedly forced upon a monarch in consequence of dissolutions, it would be difficult to prevent the substance of executive power from passing to the leaders of the parliamentary majority. It would rather seem that, in the case last supposed, "kingcraft" would be best shown in anticipating a strong tide of popular aversion, and dropping an unpopular minister with apparent spontaneity.

§ 10. An important question under the present head is to determine what share of strictly legislative functions it is needful or convenient to allow to the executive; in considering which the duration of the legislature becomes important, in respect not of its terminability but of its continuity. We have seen it to be expedient that the executive should have some legislative powers on matters requiring regulations that vary from time to time according to circumstances; but that, for the security of the citizens at large, such powers-so far as they affect others besides the servants of government-should be ordinarily exercised for certain strictly defined ends, within limits fixed

by the legislature.1 But I have admitted that unforeseen occasions may arise, when the public welfare requires that the executive should act, in issuing commands, beyond its defined powers. The question then is how such salutary encroachments may be provided for with the minimum of harm or danger.

There are two different ways of dealing with the problem: (1) It may be made the duty of citizens to obey all ordinances of the supreme executive, whether they are legally authorised or not, while the executive is made liable to penalties for issuing orders beyond its legal authority, unless its liability is ex post facto removed by the legislature. This, however, seems a clumsy method, tending to confuse and impair, in the citizens at large, the combined habits of respect for law and resistance to illegal coercion, both of which are important for the wellbeing of the community. (2) It would seem better to give the executive a general power of issuing ordinances having legal force without special authorisation; but subject to the restrictions that it is only to be exercised in case of urgency, that such ordinances are to be communicated as soon as possible to the legislature, and that they cease to be valid if disapproved by that body. It is here that the question of continuity in the exercise of functions by the legislature becomes important: since so long as Parliament is in session it can only be in very exceptional circumstances that the executive can have plausible grounds for acting without previous authorisation; while if such an exceptional occasion did arise, the legislature could disapprove promptly of any oppressive or unwarrantable ordinances issued by the executive. If, on

1 See chap. xix., especially § 8. "The substance no less than the form of the law," says Mr. Dicey (Law of the Constitution, chap. i.), "would, it is probable, be a good deal improved, if the executive government of England could, like that of France, by means of decrees, ordinances, or proclamations having the force of law, work out the detailed application of the general principles embodied in the acts of the legislature."

2 If the legislature consists of two chambers, disapproval by either chamber should be sufficient to invalidate: otherwise the law might be modified to any extent by the executive together with the majority of one chamber, which would be contrary to the principle of the two-chamber system.

the other hand, there are considerable intervals between sessions of the legislature, the power thus given to the executive increases in dangerousness in proportion to the length of the intervals. Actually in all modern states, it is customary for legislative assemblies to suspend their sittings for a considerable portion of each year: and the custom is defensible; since the making of changes in laws is not necessarily a continuous function; and representatives removed for the whole period of their tenure -even allowing for the brief holiday necessary for health -from the districts that they represented would be liable to lose touch of their constituencies; also the greater onerousness of the prolonged severance from home and private affairs might inexpediently restrict the choice of legislators. If then, for these or other reasons, there is a considerable part of the year in which the legislature is not sitting, an unlimited right of issuing ordinances which have the force of laws during this period seems too formidable a power to grant to the executive. To obviate this danger the executive should be bound to summon the legislature for an extraordinary session at least simultaneously with-if not before -the issue of any ordinance which it has not been specially authorised to issue.

It is a different question whether the executive should ever have the power of infringing the legal restraints under which its function of maintaining order is normally exercised-e.g. by arresting and detaining at its discretion persons suspected of dangerous designs. It seems rash to deny that the exercise of such powers, even without special authorisation, may be advantageous in a disturbed condition of society but we may reasonably require that such exceptional powers should only be assumed when there is—if not actual war, foreign or civil-at least imminent danger of violent and dangerous disorder; and, of course, that the authorisation of the legislature should be as soon as possible obtained for the continued exercise of such powers.

The assumption by the executive of the right of inflicting punishment as such, without the ordinary process of