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: 2

24

"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."

Both of these writers grouped judicial and "executive powers 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,28 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

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.

85. A Fourth Department. Opinion of Constitutional Fathers. When the presidency was first considered in the federal convention it was undoubtedly conceived as analogous to the colonial and state governors who exercised at that time neither foreign relations powers nor administrative powers but merely political powers in domestic affairs.31

33

The Senate was thought of as the repository of power in foreign relations.32 As discussion advanced, however, the analogy of the Presidency to the British Crown was pressed upon the convention by such men as Hamilton and Gouverneur Morris, while Madison referred to Montesquieu's conception of "executive power as a definition of the President's powers. 34 The view of these men which vested the President with political powers regarding foreign relations was, in the main, accepted, but to curb possible autocratic exercises of power by the President, the Senate was given a veto on treaties, while the power to declare war was left with Congress.. The powers finally delegated to the President, and included in Article II of the Constitution as finally drafted by Gouverneur Morris, are mostly in the diplomatic fields.

The powers of domestic administration which we now regard as the essential executive powers were not within the power of either the colonial governor or the British monarch in the eighteenth century and it was not intended that they should be within the President's discretionary control. The fathers intended that these 31 James Wilson, Farrand, op. cit., 1: 65, 153.

32 Ibid., 1: 426.

33 Hamilton, Farrand, 1: 288; G. Morris, Ibid., 1: 513; 2: 104; Mercer, Ibid., 1: 297; Sherman, Ibid., 1: 97.

34 "A dependence of the Executive on the Legislature would render it the executor as well as the maker of laws; and according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive and Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded and applied them for certain purposes as the latter did for others. The difference beween them seemed to consist chiefly in two circumstances-1. The collective interest and security were much more in the power belonging to the Executive than to the Judiciary department. 2. In the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter." Madison, Farrand, op. cit., 2: 34.

powers should be exercised by officers largely under the detailed control of Congress and in the early acts organizing departments. of government this plan was carried out.

"In the United States," says Willoughby, "it was undoubtedly intended that the President should be little more than a political chief; that is to say, one whose functions should in the main consist in the performance of those political duties which are not subject to judicial control. It is quite clear that it was intended that he should not, except as to these political matters, be the administrative head of the government, with general power of directing and controlling the acts of subordinate administrative agents." 35

Later, through the use of the implied or perhaps inherent power of the President to remove officers, and by a wide interpretation of the clause requiring the President "to take care that the laws be faithfully executed," originally indicating supervision rather than direction, the administrative powers of the President increased. At the same time the term "executive power" changed in meaning and although it still included the notion of political functions, its primary association was with the new administrative functions.

Thus when the constitutional convention gave "executive power" to the President, the foreign relations power was the essential element in the grant, but they carefully protected this power from abuse by provisions for senatorial or congressional veto. This power ought to be distinguished from the power of the President as head of the administration which he exercises independently within the limits of congressional legislation and which by present usage forms the essential element in "executive power."

Whether consideration is given to the works of theoretical writers known to the fathers, the precedents of England, the colonies or the Confederation, or the discussion of the Federal convention itself, we may conclude that The Federalist expressed the opinion of the constitutional convention as to the nature of the foreign. relations power, so far as they had an opinion on that subject, when with prevision of the later significance of the term "executive power" it classified the treaty power as a fourth department of government; 36

35 Willoughby, op. cit., p. 1156. See also Goodnow, op. cit., p. 78.

36 The Federalist, No. 75 (Hamilton), Ford ed., p. 500. Hamilton later shifted to a defense of the wholly executive nature of the foreign relations power. Supra, sec. 76.