IX CREATION OF THE EXECUTIVE But because the Laws, that are at once, and in a short time made, have a constant and lasting Force, and need a perpetual Execution, or an attendance thereunto: Therefore 'tis necessary there should be a Power always in Being, which should see to the Execution of the Laws that are made, and remain in Force. And thus the Legislative and Executive Power come often to be separated. (John Locke, Two Treaties of Government, 1690, Book II, Ch. XII, Section 144, Works, edition of 1714, Vol. II.) Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. . Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdeameanors. (Constitution of the United States, Article II.) Soon after the adjournment of the federal Convention some one said to Benjamin Franklin, "Well, Doctor, have you given us a republic or a monarchy? Franklin replied, “A republic, if you can keep it." (Andrew C. McLaughlin, The Courts, The Constitution and Parties, 1912, p. 151.) By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. . . . The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . The province of the court is, solely, to decide on the rights of individuals not to enquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. (Chief Justice Marshall in Marbury v. Madison, I Cranch, 137, 165–166, 170, decided in 1803.) These orders, given by the executive, under the construction of the act of congress made by the department to which its execution was assigned, enjoin the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; .. I was strongly inclined to think, that where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which, is, that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass. (Chief Justice Marshall in The Flying Fish, 2 Cranch, 170, 178, 179, decided in 1804.) There is another feature common to both governments. In England the king has his constitutional counsellors and councils. The peers of the realm are, by their birth, hereditary counsellors of the crown; and may be called together by the king to impart their advice, [4 Bl. Com.] 227. The judges are a council for law matters, 229. But the principal council is the privy council, and by way of eminence is called the council, 229. So the president has his councils. "He may require the opinion in writing of the principal officer at the head of each of the executive departments," &c. 2 Sec. 2 Art, Clause 2, Const. This is called a cabinet council; it is a privy council, in which the president is present, as the king is in person in his. 4 Bl. Com. 231. The senate is the council in making treaties, in advising and consenting to appointments to office. Senators are not, ex officio, counsellors individually; but the president "may convene both houses, or either of them." (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 56.) It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers intrusted to government, whether State or national, are divided into the three grand departments, the executive, the legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitution of the United States some important exceptions. One of these is, that the President is so far made a part of the legislative power, that his assent is required to the enactment of all statutes and resolutions of Congress. This, however, is so only to a limited extent, for a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds of each House of Congress. So, also, the Senate is made a partaker in the functions of appointing officers and making treaties, which are supposed to be properly executive, by requiring its consent to the appointment of such officers and the ratification of treaties. The Senate also exercises the judicial power of trying impeachments, and the House of preferring articles of impeachment. In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another. cess. It may be said that these are truisms which need no repetition here to give them force. But while the experience of almost a century has in general shown a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to be denied that such attempts have been made, and it is believed not always without sucThe increase in the number of States, in their population and wealth, and in the amount of power, if not in its nature to be exercised by the Federal government, presents powerful and growing temptations to those to whom that exercise is intrusted, to overstep the just boundaries of their own department, and enter upon the domain of one of the others, or to assume powers not intrusted to either of them. (Mr. Justice Miller in Kilbourn v. Thompson, 103 United States Reports, 168, 190, 192, decided in 1880.) But the principle of definition and limitation of powers harmonises so well with the federal spirit that it is generally carried much farther than is dictated by the mere logic of the constitution. Thus the authority assigned to the United States under the Constitution is not concentrated in any single official or body of officials. The President has definite rights, upon which neither Congress nor the judicial department can encroach. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, pp. 148-149.) CHAPTER IX CREATION OF THE EXECUTIVE It was not by chance that Mr. Randolph's resolutions began with the legislative department and it need occasion no surprise that the question of powers to be granted to this department of the proposed Government was the subject of prolonged debate and the grant itself the result of concession and compromise. The lack of power on the part of Congress to raise revenue, to maintain the government under the Articles of Confederation, and to regulate commerce with foreign nations and among the States was the cause of the convention, and this part of the plan would have been discussed and decided, as it was, if Mr. Randolph's resolutions had ended instead of beginning with the legislative department. But the fundamental question at issue was the definition of power. In comparison, the exercise of this power by an executive and indeed even the interpretation of the power were minor matters. Without the grant there could be no exercise of the power, there could be no interpretation, there could be no Constitution. However a second branch of the proposed government was, according to the theory of the division of powers, the executive. Mr. Randolph's propositions contained in the seventh and eighth of his resolutions, provide respectively: 7. Res. that a National Executive be instituted; to be chosen by the National Legislature for the term of years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the Executive rights vested in Congress by the Confederation. 8. Res. that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch.1 There appears to have been no objection on the part of any member to 1 Documentary History of the Constitution, Vol. iii, pp. 18-19. Session of May 29th. the institution of an executive department which should possess at least the rights “vested in Congress by the Confederation." A difference of opinion existed, however, as to whether the executive should consist of one person or a number; as to the period during which the executive should hold office; the eligibility of the incumbent to reelection; the method of choice and the powers which the executive should possess. It would seem that Mr. Randolph, who stood sponsor for the resolutions which bear his name, although the authorship thereof is popularly accredited to Mr. Madison, was in favor of a plural executive representing the different sections of the Union. The New Jersey plan laid before the convention on June 15th specified "a federal Executive to consist of persons." The convention, however, decided, and wisely, in favor of a single executive. It will be observed that in each plan the executive was to be elected by the national legislature. The first draft of the Constitution as reported on August 6th, provided, in the first section of its tenth article that, "the Executive Power of the United States shall be vested in a single person. His stile shall be 'The President of the United States of America'; and his title shall be, His Excellency.' He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time." 2 A Single Although every other clause of the section was modified, the convention. stood fast by the single executive, as the great desire of the delegates was to maintain, as a cardinal principle of the proposed scheme of government, a separation of powers, and therefore to make the president independent of the other departments of government. It was understood that the president was to be an elective officer; and as far as known, there was not made at any time a proposition for an hereditary executive. It was felt by some members that he should be elected for a fixed number of years and be ineligible to reelection. Those favoring his election by the national legislature were, as a rule, opposed to reelection and in favor of a longer term in order that his dependence upon the legislature might not be too close or too apparent. Those opposing the choice by the legislature appear to have favored a short term with the possibility of reelection. It is thus seen that these questions were interrelated not separate and distinct. Without pausing to trace the steps by which an agreement was reached upon the presidency, it will suffice to say that the term was fixed at a period of four years, subject to reelection. There is no provi- Term of sion in the Constitution preventing a president from being reelected for periods of four years throughout his natural lifetime. General Washington's refusal to stand a third time set a precedent followed by Messrs. Jefferson and Electoral Jackson, who might have been elected for a third term, and has established a custom hitherto unbroken. Finally, as the result of much discussion, and of many propositions made only to be rejected, it was agreed that the president should be elected neither by the legislature, by the Congress, by the people, nor by the States, and yet that he should be elected by a method which suggests each of these. Thus, a number of persons called electors, equal to the number of senators and representatives to which each State was entitled in Congress, were to be appointed in such manner as the legislature of each of the States should determine. The electors thus chosen were to meet within their respective States, and to vote by ballot for two persons, only one of whom could be a citizen of the same State with themselves. The person having the greatest number of votes was to be president, provided he received a majority of the whole number of electors appointed. If more than one received a majority and had an equal number of votes, the House of Representatives would choose by ballot one of them for president. If no person received a majority, then the president was to be chosen from the five highest on the list. In such a case the House of Representatives voted by States, each of which was to possess one vote. For this purpose a quorum of the House was to consist of two-thirds of the States, and a majority of the States was necessary for a choice. In any event, the person having the greatest number of votes of electors was to be vice president, and if there remained two with equal votes, the Senate was, by ballot, to choose one, who thereupon. became the vice president. All of these features were in the plan agreed to. It is apparent, from this brief account of the method ultimately adopted, that the electors could be chosen by popular vote within a State if the legislature thereof cared so to do; or the legislature, if it preferred, might itself appoint them. The States might participate directly in the election in case no one voted for by the electors had received a majority of the votes cast. It was believed by the framers that this might frequently happen, inuring to the advantage of the smaller States, just as the selection by election would inure to the advantage of the larger ones. The election of the vice president under like circumstances would inure to the advantage of the small States equally represented by two senators in the upper house. The members of the convention were without experience in this matter, and the work of their hands was faulty. It has twice been amended, and within the memory of men still living its application gave rise to a disputed election which tested the forbearance and the capacity of the American people for self-government. The precedent for the use of electors chosen in this way seems to have been taken from the Constitution of the State of Maryland, in which the senators were chosen by persons called electors chosen from each of the counties of the State, who, meeting in the city of Annapolis on a |