Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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EXECUTIVE

II.41.1

EXECUTIVE, The (IN U. S. HISTORY), the officer whose function it is to see to the execution of the laws which have been made by the legislative. Properly speaking, the whole body of officials, high or low, charged with this function, make up the executive department; but usually the highest in rank is named as "the executive." Thus, in a state, the governor is "the executive," in common phrase, but every officer, whether elected or appointed, down to sheriff or constable, whose office is the execution of the laws, is a part of the executive department. The president for the time being is "the executive" of the federal government. The power of all executive officers is limited and defined by law, generally by the organic law, the state or federal constitution, but in the case of some subordinate offices by statute or common law. This article is confined to the executive of the United States.

II.41.2

—I. THE COLONIAL EXECUTIVE. In considering the executive power of the British colonies which afterward became the United States, it is primarily necessary to forget the present constitution altogether, and to remember that the colonies, as they were a part of the British empire, were under the unwritten. British constitution, and that their common executive, the king, enjoyed far larger powers than any which are ever entrusted to an American executive. His prerogative really comprised all that residuum of originally absolute power of which the growing power of nobles and commons had not yet deprived him, or of which he had not voluntarily divested himself by charters; and, though it by no means equaled the powers of our entire federal government, it compared more nearly with them than with those of the president alone. Thus, the powers to make peace and war, to contract treaties and alliances, to send and receive ambassadors, were all in the king alone, and the king's American assemblies had no more claim to a share in them than his British parliament. The governors of the various colonies were not principal executive officers, but viceroys, representing the king's person and the king's will, though in some of the colonies the governor's power was limited by the charter granted by the king. In Connecticut and Rhode Island the choice of the governor was given to the people.

II.41.3

—The fundamental grievance which led to the American revolution was the effort of this executive, the king, to ignore the legislative in America, the colonial assemblies, as he would not have ventured to do in Great Britain. It is true that the effort came disguised as an assertion of the power of parliament to legislate in all cases for the colonies; but, as there was hardly any attempt to disguise the power of the king to control absolutely, by patronage or direct purchase, the legislation of parliament, the animus of the king's new-born zeal for the privileges and dignity of parliament is easily apparent. It was not so apparent at first to the mass of the colonists, who were ignorant of the corruption of parliament, accustomed to reverence its authority in Great Britain, or not directly affected by the new legislation; and for a long time they and their legislative assemblies were nearly unanimous in acknowledging the general power of parliament over foreign commerce, while denying its power over the domestic affairs of individual colonies. Reflection, however, necessarily showed that there was no logical ground for such a distinction, and that it was impossible to locate and maintain it in practice; and, while the first continental congress acknowledged it explicitly, the second repudiated it altogether. The earlier struggles of the revolution were against the power of parliament to legislate for the colonies, and it was not until July 4, 1776, that the continental congress, by renouncing allegiance to the king, put a formal end to his authority as the executive of the united colonies. (See CONTINENTAL CONGRESS, REVOLUTION, DECLARATION OF INDEPENDENCE.)

II.41.4

—For the next thirteen years the country was practically without an executive. The continental congress, which, by the will of the whole people, had already assumed most of the king's prerogatives, soon passed under the dominion of the state legislatures. The scheme of government which it contrived for the country was subordinated to the likings of the leaders of the legislatures, to whom it was ultimately submitted for ratification. (See CONTINENTAL CONGRESS.) Under the articles of confederation there was no distinct executive (see ADMINISTRATIONS), and congress itself was only an inefficient substitute for it. Its introduction into the new constitution was an evident necessity, and met very little opposition from any quarter.

II.41.5

—II. ORIGIN OF THE PRESIDENTIAL OFFICE. When the convention of 1787 met, there was a general agreement among the delegates that a distinct executive must be provided for, and the only difference of opinion was in regard to its form. Many delegates supposed the feelings of the people to be opposed to even "the semblance of monarchy," and preferred a plural executive, to be composed of one member from each of two or more divisions of the Union. Accordingly, while the "Virginia plan" and the "Jersey plan" agreed in making provision for "an executive," the latter proposed a plural executive, "to consist of—persons," and the former carefully used language applicable to either a singular or a plural executive, without undertaking to settle upon either. Charles Pinckney's plan proposes a single executive, to be called "the president," but this was probably an emendation at a late day of the convention's existence. Hamilton's plan, which was not considered, proposes a single executive, to be chosen by electors, to serve during good behavior, and to be called "the governor" June 4, by a vote of seven states to three: the committee of the whole decided upon a single executive, to be elected by congress for a term of seven years, to be ineligible for a second term, and to have a qualified veto; and in this form the resolution went, with the others, July 26, to the committee for reporting a constitution.

II.41.6

—In the report of the committee, Aug. 6, the resolution was changed only in giving the executive "the style of the president." and "the title of his excellency." The name of president was familiar to the delegates. It had been proposed in 1754 (see ALBANY PLAN OF UNION), and had already been given to the executives (now called governors) of most of the states which had formed constitutions. It was therefore adopted without hesitation. The title of "his excellency" was a different matter, and the delegates struck out a provision so certain to awaken the strongest prejudices of their constituents. The term of office was also shortened to four years, and the disqualification for a re-election was struck out. These latter changes, though made by a vote of ten states to one, have been found to be of very doubtful utility. The manner of the election of the president gave rise to a separate series of difficulties, which are treated elsewhere. (See CONVENTION of 1787; ELECTORS, I.)

II.41.7

—III. POWERS OF THE EXECUTIVE. The powers of the executive are given in full in article II. of the constitution (See CONSTITUTION) They may be divided into three classes, those relating to foreign affairs, those relating to home affairs, and those relating to war. 1. The direction of the foreign policy of the United States is left very much to the discretion of the president, limited by the approval of two-thirds of the senate, which is required for the ratification of a treaty. His appointments of ambassadors, other public ministers and consuls must also be approved by the senate, a majority vote only being requisite. Foreign governments can legitimately have no official knowledge of the intentions or proceedings of the government of the United States, except through the executive; and the executive, as in Jackson's case in 1834, referred to below, has always refused to allow foreign ministers or governments to criticise, or claim any official knowledge of, the president's language to congress in his messages, or the interior workings of the government. The house of representatives has asserted, but never yet established and enforced, its power to refuse appropriations for the execution of a treaty of which it has disapproved. (See JAY'S TREATY.) It has also approved or disapproved, by resolution, of particular points of the president's foreign policy; but such resolutions are always treated by the executive as mere expressions of the opinion of a transient majority of the members, and without any force of law. This trust of power to the executive can hardly be said to have been abused; the foreign policy of the successive presidents has almost invariably been pacific. The general line of neutrality, marked out by Washington in 1793, and followed by Adams in 1798-9, was finally elaborated by Monroe in 1823 into a form which all his successors have closely followed. (See these names, and GENET, CITIZEN; X. Y. Z. MISSION; and MONROE DOCTRINE) In 1834 President Jackson's recommendation to congress of reprisals on the commerce of France, as a "pacific means" of obtaining redress of grievances from that country, nearly involved the two nations in war; but in this case the conduct of France gave abundant excuse for the recommendation. (See also ANNEXATIONS, and paragraph 3, below.)

II.41.8

—2. In domestic affairs the powers of the executive fall into two great classes: the appointment, with the concurrence of the senate, of officers whose appointments are not provided for in the constitution (see CONFIRMATION BY THE SENATE); and the execution of the laws. In the appointing power is included also the power of removal (but see TENURE OF OFFICE); and in case of vacancies during the recess of the senate the president is empowered to grant commissions which shall expire at the end of the next session. Supplementary powers are those of granting reprieves and pardons for offenses against the United States, except in cases of impeachment; of receiving ambassadors; of convening both houses, or either of them, on extraordinary occasions; and of adjourning congress to such time as he shall think proper, when the two houses can not agree on a time of adjournment. The last-named power has never been exercised.

II.41.9

—3. Closely connected with the duty of seeing that the laws are faithfully executed, is the war power of the president. In peace the execution of the laws is usually a matter of routine and clerical work, and the great mass of the people of the United States live and die without any personal and practical contact with the workings of the executive. Behind this simplicity of execution, however, sleeps the power of the president as commander-in-chief of the army and navy, a power which is roused by the first symptom of organized resistance to the laws, and grows with the extent and possibilities of the resistance (see INSURRECTION, DOMESTIC), bounded, however, by the limitations hereafter specified.

II.41.10

—In foreign affairs the first draft of the constitution, as presented Aug. 6. gave congress the power "to make war," and this was afterward changed into a power "to declare war." The distinction was well understood by the delegates, and is undoubtedly well founded. A state of war does not necessarily include a declaration of war, and where war is made upon the United States with or without a declaration, it is evidently the duty of the executive, as commander-in-chief, to repel force by force, and to use all the means at his command for prompt and effectual resistance. Of course, an ambitious or unprincipled executive would be able to gradually force a foreign country into acts of aggression which would enable him to commit congress to the support of a war which the executive had really begun; but the rapid increase of the population and domestic wealth and interests of the country will probably give all future executives abundant occupation at home, and compel the maintenance of the traditional policy of peace abroad. The dangerous point in our history was from 1830 until 1860, when the country's war power had become very considerable, while its executive was not fully occupied with domestic concerns; and it was just in the heart of this period that President Polk forced Mexico into an attitude of aggression which resulted in the Mexican war and the dismemberment of Mexico. (See ANNEXATIONS, IV.; WARS, V.) In this instance the result was eminently fortunate for the territory which was annexed—Enormous as is the war power of the president, it is entirely the creature of law, even in its highest development. The great limitation upon it is the war power of congress, particularly the absolute power of congress to grant or refuse troops and money to the president. There is no obligation upon congress to vote any supplies whatever beyond what it considers requisite for the government of the country, and in many instances congress has coupled its appropriations for the army with limitations upon the use of the army. (See RIDERS, RECONSTRUCTION.) In time of peace, when the army is reduced to the level of a police force, this war power of congress ceases to apply; in war it is in full vigor, and must of necessity be final and decisive upon the president. The constitution has not made, and could not make, other provision than impeachment for such an unimaginable contingency as the refusal of the executive to make peace when a majority of both houses had pronounced against the war. (See WAR POWERS)

II.41.11

—IV. RELATIONS OF THE EXECUTIVE TO THE LEGISLATIVE AND JUDICIARY. 1. The constitution requires the president, from time to time, to "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." This clause has occasioned the annual messages of the presidents at the beginning of each session of congress, and their special messages on other occasions. During the first three administrations the annual message was always delivered in person by the president, after the manner of the king's "speech from the throne" to the British parliament. Thus the main body of the message was addressed to the president's "fellow-citizens of the senate and of the house of representatives," the part relating to revenue and appropriations to the "gentlemen of the house of representatives," and the conclusion to the "gentlemen of the senate and of the house of representatives." At its conclusion the president retired, and the two houses addressed themselves to the composition of an answer, an affair which always gave rise to a long debate upon the intricate shades of meaning in its various sentences. Special messages were sent in writing, though Washington at first occasionally met the senate in person to confer upon executive business. In 1801 Jefferson substituted a written annual message, as more consonant with republican simplicity; but the reason assigned by his political opponents was his consciousness of his inability to speak in public with effect. In 1813 the senate endeavored to revive the early practice by requesting the attendance of the president to consult upon foreign affairs, but Madison declined the invitation.

II.41.12

—In addressing the president, some of the federalists, in 1791, wished to give him the "style" of "His highness, the president of the United States, and protector of their liberties." A burlesque motion was offered from the democratic side that the "style" of the vice-president should be "His superfluous excellency"; and it was finally agreed that communications should be addressed simply to "The president of the United States." In 1792 a clause in the bill passed by the senate for establishing a mint, to place upon the coins "a representation of the head of the president of the United States for the time being," was defeated by a vote of only 26 to 22 in the house. The act of Sept. 24, 1789, fixed the president's salary at $25,000 per annum. This amount was increased to $30,000 by the act of March 3, 1872. An attempt to repeal the act in the following session was vetoed, and failed to pass.

II.41.13

—Direct intercourse between congress and the heads of the executive departments has been the rule since Washington's presidency. His cabinet, except Hamilton, were of the opinion that congress could only communicate with the heads of departments through the president, but the obvious tendency of the opposite plan to facilitate the business of the departments almost immediately compelled the adoption of it. In practice, however, it has been found open to the objection that it leads to informal and uncontrolled intercourse between secretaries and individual members or heads of committees, for the purpose of influencing legislation. To obviate this it has been proposed in congress to vote eats, without votes, in each house, to the heads of departments, in order that they may be in attendance on specified days and explain of defend publicly the legislation which they desire. A provision to this effect was inserted in the confederate constitution in 1861 (see CONFEDERATE STATES), and its chances for adoption by congress seem fair. If adopted, its ultimate influences upon the practical constitution of both the executive and the legislative are as yet beyond calculation.

II.41.14

—For the results of the necessity for obtaining a confirmation of the president's nominations by the senate, see CONFIRMATION BY THE SENATE, TENURE OF OFFICE.

II.41.15

—For the veto power and its influences, see VETO.

II.41.16

—2. After the appointment and confirmation of the judiciary there are no direct official relations between that branch of the government and the executive. Various efforts have been made to bring about such relations, with the view of establishing some power in the judiciary to revise or control the action of the president: but the courts have steadily refused to encourage anything tending to a collision between the judiciary and the executive. Soon after Jefferson's inauguration, suit was brought against the secretary of state to compel the delivery of a commission signed and sealed by the preceding administration; but the supreme court, while it considered livery to be already complete, refused to interfere. In 1807 the counsel for Burr endeavored to compel the president's personal attendance as a witness, but did not succeed. In 1861 the chief justice ordered an attachment for contempt to issue against an army officer for disregarding the writ of habeus corpus, which had been suspended; but when the attachment was returned unsatisfied, the chief justice abandoned further proceedings. In October, 1865, and until martial law had ceased in the south, the supreme court refused to hold sessions in that section. In 1867 the state of Mississippi applied to the supreme court for an injunction forbidding the president to execute the reconstruction acts, but the injunction was refused. (See BURR. AARON; HABEAS CORPUS; RECONSTRUCTION.)

II.41.17

—The general principle in this connection is well stated by Chief Justice Chase in the last case referred to: "The congress is the legislative department of the government; the president is the executive department; neither can be restrained in its action by the judicial department, though the acts of both, when performed, are in proper cases subject to its cognizance." The "proper cases" there referred to are such as are not political in their nature.

II.41.18

—President Jackson has been much censured for vetoing the bill to recharter the national bank in 1832, on the ground of its unconstitutionality, after the supreme court had decided that such a bank was constitutional. His position, as stated in his veto message, was that "each public officer, who takes an oath to support the constitution, swears that he will support it as he understands it, and not as it is understood by others." The high political excitement of the time obviously carried both parties to extremes. The position of the bank advocates, in its results, would imply that, when the supreme court had once decided that the general idea of a national bank was constitutional, the president would be bound to approve any bank bill which congress might see fit to frame; and the position of the president would equally imply a power in the executive, for instance, to persist in the execution of a law which had been judicially, and finally, pronounced unconstitutional and void. In his political acts the president is responsible only to his own conscience, to the people, and to the representatives of the people under a trial of an impeachment, but his conscience, like that of any other citizen, is bound by the final decision of the constitutional tribunal. The distinction between the official free will and necessity of the executive is extremely difficult to define in theory, but very simple in practice, since the judiciary and executive have always studiously avoided any conflict. (See CONGRESS, JUDICIARY.)

II.41.19

—V SUCCESSION TO THE PRESIDENCY. In the regular course of events the president is succeeded at the end of his term of office by his successor already chosen. The selection of March 4, 1789, by the congress of the confederacy, as the day for the inauguration of the new government, has fixed that day as the beginning of the four years' terms of succeeding presidents; in case of an entirely new election, as hereafter specified, the new president would serve for four years, and "inauguration day" would be changed. In case of the "removal, death, resignation or inability" of the president, his office devolves upon the vice president, and when the disability extends to the vice-president also, congress is empowered to regulate the succession. "declaring what officer shall then act as president until the disability be removed, or a president shall be elected." The act of March 1, 1792, has therefore declared the president pro tempore of the senate, or, if there is no president pro tempore, the speaker of the house, to be the officer upon whom the succession should devolve.—"Removal" can only be effected by impeachment. The act last cited has provided that "resignation" must be in writing, signed by the party, and deposited in the office of the secretary of state. The question of "inability to discharge the duties" of the office presents more possible difficulties. The "inability" of the president may be patent. He may be made a prisoner by an enemy: President Madison was in danger of capture at Washington in 1814, and the capture of President Lincoln was Booth's original plan in 1865. He may visit or retire to a foreign country during his term of office. But who is to decide when lunacy, paralysis or illness of any kind has gone so far as to result in "inability"? How long would the subordinates and party friends of the president be allowed to discharge the duties of the president for him, as the subordinates of Secretary Crawford did during his paralysis in 1823-4, before the vice-president would be entitled to assume the place of the president? No rule can be given until a precedent has actually been made, but as the provision of the constitution is mandatory and addressed to the vice-president, the decision would seem to rest mainly with that officer.

II.41.20

—In order that an officer may be in readiness to take the place of the vice-president, if necessary, it has been customary for the vice-president to retire from the senate a few days before adjournment, and a president pro tempore has then been elected. In 1881 the vice-president declined to retire and permit the election of a president pro tempore, and as the new house had not yet met or chosen a speaker, there was no lawful successor in case of the death of both president and vice-president. The shooting of the president, July 2, 1881, and his possible death, gave some prominence to considerations of the complications which might be involved in the death of both president and vice-president under such circumstances. The administration of the government would probably go on, under direction of the cabinet, until the meeting of congress and the election of a president pro tempore. In extraordinary circumstances, requiring the authority of an executive at once, there seems to be no good reason why the cabinet should not summon an extra session of congress, for, though such a summons would have no authority upon congress, congress would undoubtedly respect it, and the first exercise of the legislative powers would cure all defects of form.

II.41.21

—The greatest danger in the matter of the presidential succession lies in the possibility of a failure to elect, or to settle the result of a disputed election, before the end of a presidential term. The country has twice, in 1801 and 1877, come to the verge of such a possibility. (See DISPUTED ELECTIONS, I, IV.) In 1801 it was proposed by the federalists that a bill should be passed to designate some officer, as the chief justice or the secretary of state, to act as president and order a new election; and by the democrats that the new congress should be convened by proclamation to be signed by Jefferson and Burr jointly, as one of them was president elect. Both programmes were evidently unwarranted by the constitution, but the latter was infinitely less objectionable than the former. It would be no misdemeanor for even a private person to summon congress to an extra session; and if an undisputed majority of both houses chose to obey any summons, however irregular, it is difficult to imagine a decision by the judiciary against the legitimacy of acts of such a congress, because of defects in the form of the summons.

II.41.22

—The 12th amendment to the constitution, which was soon after passed, provided that "the vice-president" should act as president in case of a failure by the house to exercise its right of choice between two or more equal candidates before March 4. In case of a failure to choose both president and vice-president, the senate is evidently to choose the vice-president at once, and that officer is to act as president in case of the house's failure to choose. If the senate also fails to choose a vice-president in time, the whole scheme of the executive is again adrift. In such a case the act of March 1, 1792, has assumed the doubtful power to order a new election, which would probably be submitted to by the country as the easiest escape from the difficulty.

II.41.23

—There are, however, other difficulties unguarded against. In case of a failure to choose by the electors, the house is to choose a president from the three highest on the list. Suppose that in some general break up of party lines, as in 1824, the four highest on the list should be a tie, or, as is much more possible, that the third and fourth candidates on the list should be a tie: who is to decide which of the tie candidates is to resign his pretensions in order to enable the house to choose between the three highest? The case of a closely contested presidential election, in which the few decisive electoral votes are claimed by both parties, as in 1876-7, offers still greater dangers. It was avoided, at that election, by the creation of an electoral commission, but it is highly improbable that this remedy will ever be available again. Apparently, the methods of the presidential election and succession are now the only points in the constitution which can seriously threaten the perpetuity of the Union; in them, if anywhere, lie concealed the germs of disintegration and destruction. They deserve prompt consideration, for, in a country whose population doubles in each quarter of a century, every year increases the difficulty of making amendments to the constitution. (See ELECTORS, ELECTORAL COMMISSION.)

II.41.24

—See IMPEACHMENTS, WAR POWER, RECONSTRUCTION, TENURE OF OFFICE, ELECTORAL VOTES, ADMINISTRATIONS. For popular votes for president, see UNITED STATES.

II.41.25

—See, in general, Story's Commentaries, § 1404; 2 Bancroft's History of the Constitution, 163; de Chambrun's Executive Power; 1 Kent's Commentaries, 235; The Federalist, xlvii.-ii., lxvii.-lxxvii.; Rawle's Commentaries, 147; 2 Wilson's Law Lectures, 187; A. Conkling's Powers of the Executive Department. (I) 1 Blackstone's Commentaries, 262, 408; Marshall's History of the Colonies; Lodge's English Colonies in America; Frothingham's Rise of the Republic, 419; 4 Franklin's Works, 282. (II.) 5 Elliot's Debates, 127. 131, 205, 376, 380, and authorities under ELECTORS, 1 Tucker's Blackstone (Appendix), 349. (III.: 1. 2) Hunt's Life of Livingston, 395; 3 Parton's Life of Jackson, 569; and authorities under articles referred to; (3) 1 Elliot's Debates, 226; The Federalist, lxxiv.; Tiffany's Constitutional Law, § 517; Whiting's War Power, 82; 2 B. R. Curtis' Works, 306; Story's Commentaries, § 1485; 1 Kent's Commentaries, 264; and authorities under WAR POWER. (IV.: 1, 2) 3 Jefferson's Works (edit. 1829), 470; 5 Niles' Register, 243, 340; 1 Benton's Debates of Congress, 14, 17, 117, 267, 371; 1 Stat. at Large, 72, and 17: 486 (acts of Sept. 24, 1789, and March 3, 1873); 4 Jefferson's Works (edit. 1829), 463; Rawle's Commentaries, 171; 2 Pitkin's United States, 285; 1 Lloyd's Debates, 511; (8) 1 Cranch's Reports, 137; Tyler's Life of Taney, 420; Schuckers' Life of Chase, 535; and authorities under articles referred to. (V) Story's Commentaries, § 1476. The act of March 1, 1792, is in 1 Stat. at Large, 239.

ALEXANDER JOHNSTON.

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