CHAPTER V.

THE ENGLISH EXECUTIVE.

T

O what extent and in what manner the executive

of the United States is related to the ancient executive of England, can best be understood by tracing the development of the latter, and by comparing the status of the English executive in the reign of George III. with that of the American executive, as defined in the American Constitution. The task is difficult, because English royal prerogative is of a character well-nigh undefinable, and because the history of the royal prerogative is closely interwoven with the general history of the nation. But if followed in outline, the kingly office will be found rising step by step from a simple Teutonic original, until it attains to practical absolutism, and then as gradually losing power until, under modern sovereigns, slight vestige of active authority remains. During the colonial time the king of England was, as we have seen, the executive of America. He governed the colonies in his own person, and also through governors, or other representatives. The presidency is derived both directly and indirectly from the kingship, at a stage of the development of the royal

office subsequent to the period of greatest strength and previous to that of greatest weakness.

In the early Teutonic tribes, executive functions, as we understand them, were in an ill-defined and formative condition. There were elective officers of various titles, some for civil, and some for military affairs. Among these officers in certain tribes kings are named.1 But the Teutonic kingship, though held in high honour, had only limited and uncertain powers in time of peace, and was not necessarily chief in command in time of war; being quite different from the ideal created by later associations. Like other officials, the king was elected; but unlike them, was chosen, with the thought of blood

1 From the words of Cæsar it has been supposed that kings were the exception rather than the rule. His words are: "In pace, nullus est communis magistratus; sed principes regionum atque pagorum inter suos jus dicunt."— De Bello Gallico, VI. 23. Tacitus draws a clear distinction between tribes having kings, and tribes not having them. - Germania, cc. 25, 44. Commenting upon this, so great an authority as Kemble says: "Even in the dim twilight of Teutonic history, we find tribes and nations subject to kings; others again, acknowledged no such office, and Tacitus seems to regard this state as the more natural to our forefathers. I do not think this is clear; on the contrary, kingship, in a certain sense, seems to me rooted in the German mind and institutions, and universal among some particular tribes and confederacies.". Saxons in England,

I. 137.

2 Waitz considers that the king was the military head in monarchical tribes. See Deutsche Verfassungs-Geschichte, I. 310 sq. But Tacitus says: "Duces ex virtute sumunt et duces exemplo

potius quam imperio, si prompti, si conspicui, si ante aciem agant, admiratione praesunt.". Germania, c. 7. See also Tacitus,

Germania, c. II.

descent, from the fittest members of a single family, though there was no essential succession from father to son. In his hereditary character, he was the official representative of the unity of his nation, and in such sense, rather than in the sense of rulership, its acknowledged head. His title of King, or Cyning, the derivation and meaning of which have been much discussed, probably had to do with the idea of Cyn or Kin; kinship being conceived as blood relationship between people of one race. The word was used, perhaps, as conveying

1 Waitz, Das Alte Recht, 203-214; and Deutsche VerfassungsGeschichte, II. 148-164, 353, etc. Allen says: "Among the members of the royal family there seems to have been an absolute liberty of choice, as favour, convenience, or accident determined. The son was preferred to the father, the brother to the son, and in one noted instance, the line of the younger prevailed over the descendants of the elder brother, though the latter had worn his crown with credit and ability.” — Inquiry into the Rise and Growth of Royal Prerogative, 46.

2 The meaning sometimes given to the word cyning—"child of the race," from cyn, race or kin, and ing, the well-known patronymic, would seem to be doubtful. Max Müller states it as his opinion that "the old Norse Konr and Konungr, the old high German chuninc, and the Anglo-Saxon cyning, were common Aryan words, not formed out of German materials, and therefore not to be explained as regular German derivatives. . . . It corresponds with the Sanscrit ganaka. . . . It simply meant father of a family.” — Lectures on Science of Language, II. 282, 284. This seems to accord with the patriarchal thought which may be remotely associated with Teutonic kingship. For as the ancient conception of nationality was a tribal one, the idea of the unity of the tribe or race might easily be associated with the idea of fatherhood, headship of a family. The fact of an hereditary royal

...

the thought of official impersonation of a common nationality, based upon a common tribal or blood kinship. It would be an easy transition, as a tribal nation grew into widened life, for the functions of a national executive to become attached, little by little, to this elected representative of the race. And without venturing to theorize in detail on the rise of the kingly office of later time from such beginnings, we may possibly surmise that some early king gradually attained executive supremacy by absorbing powers before divided among several officials; or that an officer who had acquired the attributes of national power took on the dignity of the kingly title and relation to the state.1

family may look in the same direction, and point to a patriarchal source for the royal office, the royal family being the patriarchal line of descent in the tribe. Some tribes may have wholly substituted elective officers for the patriarchate, and others may have modified the patriarchal principle by electing the cyning, and sharing his powers with elective officers. For differing opinions on

the meaning of Cyning, see Freeman, Norman Conquest, I. 583, 584; Schmid, Gesetze, 551; Allen, Grimm, Palgrave, etc. Bishop Stubbs says: "The Anglo-Saxon probably connected the cyning with the cyn more closely than scientific etymology would permit." Constitutional History of England, I. 166.

1 Kemble has an interesting chapter on the development of kingship. Saxons in England, I. Chap. vi. Dr. Rudolph Gneist says: "Actual kingship begins to exist, first, so soon as the dignity of the chieftain appears not only in the leadership of the army, but when it becomes a comprehensive, supreme power, including the office of magistrate, of protector of the peace, of defender of the Church, with the highest control of the commonwealth in every department; secondly, so soon as this highest dignity has become recognized by the popular idea as the family right of a high

However the office itself may be accounted for, the

tribes that immigrated to Britain among those that were without it.

2

1

3

seem to have been Yet the royal idea

was probably familiar to all tribes, and perhaps, as Kemble thinks, inherent in the Teutonic mind; for in every instance kings were set up by these tribesmen shortly after their landing. According to old records, the first chieftains who came over bore the titles of Earldorman and Heretoga, the former designation expressing civil, and the latter military, functions. But when battles of conquest had been fought, and the chiefs found themselves at the head of a Teutonic body settled down on new soil, the title of king was assumed.* The fact of military leadership, combined with the stubbornness of the long struggle with the native Britons, rendered the position of these first English kings stronger from the outset than that of any officials in the older

born race. Directly both these conditions coexist, the new idea shows itself in its new name.” — History of the English Constitution, I. 14.

1"But sprung as he was from war, the king was no mere war leader, nor was he chosen on the ground of warlike merit. His office was not military, but national; his creation marked the moment when the various groups of conquering warriors felt the need of a collective and national life." - Green, Making of England, 172. 2 "Her comen twegen ealdormen on Brytene Cerdic and Cynric his sánu." - E. Chron., a. 495.

8" Heora heretogan wæron twegen gebroðra, Hengest and Horsa." E. Chron., a. 449.

4" Her Cerdic and Cynric Westseaxena rice onfengon." - E. Chron., 519.