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However, to sustain this distinction we must recognize the ambiguity of the term "executive power." Writers on administrative law have recognized the two distinct functions frequently vested in the chief executive, designated respectively as "political" and "administrative" functions. The political functions exhausted the early conception of "executive power" and corresponded very closely to what we call the foreign relations power. During the nineteenth century, however, the administrative functions of the chief executive or the functions of executing the law and directing the national civil services have increased in importance and now it is to these that writers and courts usually refer when they speak of "executive power." Thus though foreign relations power is almost synonymous with executive power according to the earlier usage, under present usage the two are distinct.

This is especially true in the United States. Here the political functions of the executive are largely in the field of foreign relations.22 Though the President has been gaining an increasing political influence in domestic affairs through the veto, the patronage, and his extra-constitutional position as head of his political party, yet, lacking the powers of initiating legislation, personally forcing it through the legislature, and if necessary proroguing or dissolving that body, commonly exercised by European executives, he has not assumed the dominating position in domestic policy found there. His legal powers have been in the main confined to executing the law and directing the national civil service.

In foreign affairs, on the other hand, the President's political powers are as great as those of the executive in most European countries, but for their exercise he usually requires the advice and consent of the Senate. Thus, these powers have tended to be dis

21 Goodnow, Principles of the Administrative Law of the U. S., p. 66; Willoughby, op. cit., p. 1156.

22 The only ones which are not are the veto power given by Art. I, sec. 7, par. 3, and those in Art. II, sec. 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."

sociated from the ordinary executive powers exercised independently by the President but within the limits of detailed statutes. 83. A Fourth Department. Opinion of Theoretical Writers.

A careful examination of the views of Locke and Montesquieu will indicate that they regarded the control of foreign relations as a distinct department of government. Locke used the term " federative" to designate this department and distinguished it from both the "executive" and "legislative" departments.23

"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, it is 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.

"There is another power in every commonwealth. . . . Though in a commonwealth the members of it are distinct persons still in reference to one another, and as such are governed by the laws of the society; yet in reference to the rest of mankind, they make one body. . . . Hence it is that the controversies that happen between any man of the society with those that are out of it are managed by the public, and an injury done to a member of their body engages the whole in the reparation of it. This, therefore, contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth; and may be called federative, if anyone pleases. So the thing be understood, I am indifferent as to the name.

"These two powers, executive and federative, though they be really distinct in themselves, yet one comprehending the execution of the municipal laws of the society within itself, upon all that are parts of it; the other the management of the security and interest of the public without, with all those that it may receive benefit or damage from; yet they are always almost united. And though this federative power in the well- or ill-management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent standing, positive laws, than the executive; and so must necessarily be left to the prudence and wisdom of those whose hands it is in, to be managed for the public good: for the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of designs, and interests, must be left in great part to the prudence of those who have this power committed to them to be managed by the best of their skill, for the advantage of the commonwealth.

"Though, as I said, the executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated 23 Treatise of Civil Government, secs. 144-148, Works, ed. 1801, 5: 425-6.

and placed at the same time in the hands of distinct persons; for both of them requiring the force of the society for their exercise, it is almost impracticable to place the force of the commonwealth in distinct, and not subordinate hands; or that the executive and federative power should be placed in persons that might act separately, whereby the force of the public would be under different commands: which would be apt some time or other to cause disorder and ruin."

Montesquieu's triple division was the same:

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"In every government," he says, "there are three sorts of power: the legislative; the executive, in respect to things dependent on the law of nations; and the executive in regard to things that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends, or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasion. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state."

executive" powers

Both of these writers grouped judicial and "executive" in one department which Locke designated "executive" and Montesquieu "judicial." Each considered the conduct of foreign relations a distinct department of government, which Locke called "federative" and Montesquieu, "executive." Confusion results from the different meaning given to the term "executive" by the two men, but in substance their classifications were precisely the same. This classification of departments was also that which they actually observe in the British government of the time.

84. A Fourth Department. British and Colonial Precedents.

In the 18th century the prerogative of the British Crown in Council concerned largely war, foreign relations, colonies, appointments and removals, the summoning, proroguing and dissolution of Parliament. The Crown administered the finances and the commercial regulations but it did so under authority delegated by Parliament, which levied all taxes, made all appropriations, and passed general laws for defining commercial policy. With the exception of taxation, however, domestic administration was almost

24 L'Esprit des Lois, lxi, c. 6, Philadelphia, 1802, 1: 181. Note Madison's paraphrase of this in the Federal Convention, infra, note 34.

entirely conducted by the courts and the justices of the peace.25 Not until the late eighteenth and nineteenth centuries did the great ministries for domestic administration develop,26 and not until this

25 The English Government has been undergoing continuous functional differentiation throughout its history. Locke and Montesquieu caught the process at a particular time and crystallized it in the theory of separation of powers. In the period of the Norman and Angevin kings the functions of government were: (1) Military, controlled by the king under restrictions of feudal and customary law, and naval, exercised at first through the Cinque ports with their Warden, and later delegated to the Lord High Admiral; (2) Financial, in which the Crown was gradually forced to rely on parliamentary grants, merely retaining control of the administrative machinery for collecting and disbursing, exercised through the Justiciar later supplanted by the Treasurer and through the Exchequer with its chancellor; (3) Judicial, in which the Crown delegated authority to the central courts of Common Pleas, King's Bench and Exchequer, which, though appointed by the Crown, tended to acquire an independence from its control. A certain residuum of judicial power, however, remained on the one hand in the House of Lords and on the other in the Crown, who exercised it through the Lord Chancellor and the Privy Council.

As time went on, relations of a peaceful kind with foreign nations were established and the making of treaties and sending and receiving of diplomatic officers were added to the military functions of the Crown. These were conducted by the Secretary of State. Parliament soon began to insist that, in exchange for its grants of money, the King should reform abuses, first requested by petition, but tending to assume the form of definite bills. Thus in addition to taxation, Parliament acquired the function of legislation. As population increased and the problems of local administration became more complex, the courts, and especially the Justices of the Peace, added to their judicial functions much of an administrative character. Thus by the time of the Revolution of 1688 the functions of government were distributed among three fairly distinct departments. The Crown controlled military, naval and foreign affairs, the administration of finances and power of appointment. Parliament controlled the raising and appropriation of revenue and the enactment of general laws. The Courts and Justices of the Peace administered criminal and civil laws and performed practically all functions of domestic administration, except finance. This division of power was described by John Locke, taken from him by Montesquieu and Blackstone and from them by the American Constitutional Fathers. (See Medley, English Constitutional History, 2d ed., pp. 112, 231, 367, 392.)

26 Before 1782 the important ministerial offices were Lord Chancellor, Lord High Admiral in Commission, Secretary at War, two Secretaries of State, one each for northern and southern Europe, Lord Treasurer in Commission, Chancellor of the Exchequer and Board of Trade. None of these really concerned domestic administration except finances. The Secretary of State for Home Affairs was created in 1782; Board of Works and Public Build

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time did the responsibility of the Cabinet to Parliament become established. Even during the 19th and 20th centuries, the prerogative in foreign relations has been exercised by the Crown in Council quite independently both of party politics and of parliamentary responsibility.28 The distinction has continued to exist. between the foreign relations power exercised rather independently by the Crown in Council and the executive power exercised by the Crown under powers delegated by Parliament and through ministers responsible to that body.

The executive power as known to the constitutional fathers in the colonial governor was similar to that of the British Crown in the 18th century with the very important exception of the foreign relations power. The colonial governor exercised merely such powers as summoning and dissolving the legislature and appointing and removing officers.

"Administrative matters," says Goodnow, "outside of those directly connected with the military powers of the governor had not been attended to by the central colonial government but, in accordance with English principles of local government, by various officers in the local districts of the state who were regarded as local in character and who often at the same time discharged judicial functions.” 29

This was also true of the succeeding state governors. Since all powers of the national government under the Continental Congress and Articles of Confederation were vested in Congress no conception of the scope of executive or legislative power could be gained from this experience, though the need of a more efficient control of foreign relations was strongly felt and was one leading motive toward the formation of the Constitution.30

ings, 1851; Committee on Education, later a Board of Education, in 1856; Local Government Board, 1871; Board of Agriculture and Fisheries, 1889. (Medley, op. cit., p. 112 et seq.)

27"The first definite recognition of this corporate responsibility (of the cabinet) may be said to date from 1782." (Medley, op. cit., p. 109.)

28 See Low, The Governance of England, N. Y., 1915, p. 301; Ponsonby, Democracy and Diplomacy, London, 1915, p. 45 et seq.

29 Goodnow, op. cit., p. 71.

30 Farrand, op. cit., 1: 426, 513.

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