Principles of organization :
What the Executive Organ Embraces. The second great organ, department, or branch of government the third, if we accept the view of some Writers that the electorate is also an organ is the executive. In a broad and collective sense the executive organ embraces the aggregate or totality of all the functionaries and agencies which are concerned with the execution of the will of the state as that will has been formulated and expressed in terms of law.
In this sense the term embraces not only the supreme head of the government the chief of state, as he is called on the continent of Europe (president, king, emperor) but also the ministers and the whole mass of subordinate executive and administrative functionaries who constitute what in Great Britain and the United States is known as the “civil service.” As thus understood it comprehends the entire governmental organization, with the exception of the legislative and the judiciary and possibly the diplomatic corps. Thus tax collectors, inspectors, commissioners, policemen, and perhaps officers of the army and navy are a part of the executive organization.
According to the partisans of the duality theory of governmental functions, discussed in a previous article, even the judges of the courts might properly be regarded as falling within the category of executive functionaries, since, according to this theory, their function of applying the laws is really an incident or phase of the general process of execution. Ordinarily, however, when we speak of the “executive” or the executive department we mean the chief magistrate together with his advisers and ministers, or, as in Switzerland, the board or council which performs the duties which in other countries are intrusted to a single person, or as in the states of the American union, the governor together with principal elective state officers who share with him the executive power.
As pointed out in a preceding article some writers distinguish between the functions of execution and administration and consequently between the executive and administrative organs or branches of government. Other writers, like Carré ‘de Malberg while admitting the essential differences between the nature of the executive and of the administrative functions, do not recognize the existence of an administrative organ distinguishable from the executive organ, and it would seem, correctly so, since in fact there appears to be no government which is actually constituted with two such organs separate and distinct from each other,
Unitary Character of the Executive Organ :
The executive function differs essentially in its nature from the legislative function and consequently it must be organized on principles which are very different from those upon which the legislature is constituted. Necessarily the legislative organ must be a more or less numerous body, that is, it must be an assembly composed of representatives elected at-frequent intervals from the body of the people. Its peculiar function is to deliberate, consult upon the general needs of society, and lay down rules of conduct for the guidance of private individuals and public officials.
The function of the executive, however, is not primarily to deliberate, but to execute, enforce, and carry out the state will as expressed by the legislature and the constituent assembly and as interpreted by the courts. The prime requisites for efficiency in the discharge of such functions are, therefore, promptness of decision, singleness of purpose, and sometimes secrecy of procedure. It may be stated in general terms, said Judge Story, that that organization is best which will at once secure energy in the executive and safety to the people.
A single person or a very small body of persons is therefore better fitted for the discharge of such duties, than a numerous assembly composed of many minds and entertaining a variety of views. To organize the executive power by dividing it among a number of coordinate and equal authorities would necessarily lead to its enfeeblement, especially in times of crises when Promptness of decision and action may be essential to the preservation of the life of the state.
The testimony of political writers and statesmen has been practically unanimous in favor of the principle of unity in the organization of the executive office. No one more powerfully defended it than Alexander Hamilton. Energy in the executive, he said,
“is a leading characteristic in the definition of good government. It is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. ”
The most distinguished statesmen, said Judge Story,
“have uniformly maintained the doctrine that there ought to be a single executive and a numerous legislature. They have considered energy as the most necessary qualification of the executive power, and this is best attained by reposing it in a single hand. Plurality in the organization of the executive also tends to conceal faults and destroy responsibility.”
Responsibility under such an arrangement, observed Mill, is a mere name. What the board does, he went on to say, is the act of nobody and nobody can be made to answer for it. Where a number are responsible, the responsibility is easily shifted from one shoulder to another, and hence both the incentive in the executive and the advantages of the restraint of public Opinion are lost.
Examples of Plural Executives :
Nevertheless history furnishes some examples of the plural form of executive, but most of them were short-lived. In ancient Athens the executive power was split , up into fragments and divided among generals, archons, etc., each being independent of the others. The Roman constitution for a long time provided for two consuls, each of whom was invested, not with a part of the executive power, but the whole of it, and each could in effect veto the action of his colleague.
Sparta, in early times, had two kings, and the principle of plurality was extended to the organization of subordinate offices. France after the Revolution experimented with the plural form of executive under several different constitutions. That of 1795 vested the executive power in a Directory of five persons, but the results were unsatisfactory.
At the present time, the executive in every sovereign state, with one exception, is organized on the single-headed principle. The exception is found in the constitution of the Swiss republic, which vests the executive power in a council of seven persons. One of the seven bears the title and dignity of president of the Confederation and performs the ceremonial duties of executive office, but in reality he is merely chairman of the council and has no more actual power than his colleagues.
The practical working of the institution in Switzerland has been attended with less difficulty than the plural form elsewhere, mainly on account of certain habits and traditions of the Swiss people, and because the ground, had already been prepared through local experience. For a long time the collegial form of executive had existed in the separate cantons, and hence when it was introduced into the Constitution of the Confederation, in 1848, the institution had passed the experimental stage.
Organization of the Executive Power in Parliamentary-Governed States :
While Switzerland is the only independent state in which both the titular and the actual executive power is intrusted to a collegial body, it is important to bear in mind that in all countries where the cabinet or parliamentary system of government in its normal form is found, the executive power is actually exercised by a body of ministers. In short, if we disregard the titular executive (king or president) who is ordinarily a figurehead, they all have executive organs constituted on the collegial principle. It may also be remarked that in some of the German states, notably Prussia, Bavaria, Baden, and Wurttemberg, titular executives have recently been done away with entirely and the executive power is vested in the ministers.
In most of them the Landtag elects a minister-president, who occupies a position analogous to that of the president of the Swiss Confederation, and he chooses his colleagues. In Baden the Landtag elects all the ministers, so that the system is essentially the same as that of Switzerland. In the German national assembly of 1919, the Independent Socialists advocated a similar form of executive for the Reich.
Nearly everything Hamilton, Story, Mill, and the others said against plural executives would seem to apply equally to executive government by cabinets. But experience has not demonstrated the validity of their criticisms. The fact that this system of government has continued to spread throughout the world is evidence enough that government by a plural executive is not in practice attended by the evils which have been attributed to it by many writers.
It may be remarked in passing that the plural type of executive is not uncommon in the organization of local governments. The commission form of municipal government which has been lately introduced in many parts of the United States is a conspicuous example. As already mentioned, the Swiss cantonal executives are all organized on the collegial principle.
Advantages Claimed for the Plural Form of Executive :
It has been argued in favor of the plural form of executive that it furnishes greater guarantees against the dangers of executive abuse and oppression and renders more difficult executive encroachments upon the sphere of the legislature and upon the liberties of the people in general. It was for this reason that the system was originally introduced into Switzerland and has been retained there until this day. It is mainly for this reason also that the executive is often subjected to the control of a council in those branches of administration which afford the largest temptations and opportunities for abuse of power.
An executive constituted on such a principle manifestly could not plan and execute a coup detat, nor invade the spheres properly belonging to the other departments, with the same ease and readiness With which a single ambitious individual could, unrestrained by a council and unopposed by colleagues Who shared with him responsibility.
Finally, it is contended by some that an executive organized on the plural principle, while perhaps lacking the advantages of unity and energy, yet is likely to possess a higher degree of ability and Wisdom than can be found in any single person.
The executive power, it is pointed out, involves much more than the mere ministerial function of executing the commands of the legislature , it often involves the formulation of constructive policies, as well as important powers of direction, requiring the exercise of wide discretion and judgment, duties that can be more wisely performed by a body of persons than by a single individual.
Executive Councils :
Sometimes, the unity of the executive Powers is in effect destroyed or impaired by vesting it ostensibly in one person, but really dividing it between him and a council to whose advice and control the chief executive is made subject. Thus in the early constitutions of the American states the executive in nearly every instance was subject to the control, in a large degree, of such a council and indeed in two states, namely, Pennsylvania and Vermont, the executive power was virtually vested in a board.
A strong but unsuccessful effort was made in the convention which framed the constitution of the United States to associate an executive council with the President. In the old German Empire the Federal Council (Bundesrath) shared with the emperor an important part of the executive power, so much so, indeed, that some of the German writers treated the Federal Council as the real executive and the emperor as merely its agent.
In Great Britain, likewise, various acts of the executive, particularly those known as orders in council, require for their validity the approval of the Privy Council, although the approval is a mere form.The president of the French Republic is required to consult the Council of State in many cases, especially in regard to issuing ordinances but the French idea is so averse to the diffusion of responsibility that the executive is not compelled to act upon the advice which the Council may give him.
There is a saying of the French that to act is the function of one to deliberate, that of several and while the value of advice is fully recognized they are unwilling to sacrifice the advantages of responsibility In order to establish a control over the executive.
The President of the United States, said De Tocqueville,
“was made the sole representative of the executive powers of the Union, and care was taken not to render his decisions subordinate to the vote of a council-a dangerous measure which tends at the same time to clog the action of the government and to diminish its responsibility. The Senate, has the right of annulling certain acts of the president but it cannot compel him to take any steps nor does it participate in the exercise of the executive power. The Americans have not been able-to counteract the tendency which legislative assemblies have to get possession of the government, but they have rendered this propensity less irresistible.”
No objection, it would seem, can be urged against the practice of associating a merely advisory council with the executive. Such an arrangement ought to bring strength and wisdom to the executive department. Mill justly observed that a man seldom judges right when he makes habitual use of no knowledge but his own or that of a single adviser.
The work of administration is often complex and difficult and requires for its efficient performance highly technical and special knowledge, not only on the part of those who actually perform the service, but often on the part of the chief magistrate who directs the administration. Such knowledge he rarely possesses, hence the advantage of an advisory council composed in part of men who do possess it is clearly evident.
But the ultimate decision in most cases ought to be with the executive, and the responsibility ought to rest upon him. It is easy, as Mill remarked, to give the effective power and the full responsibility to one, providing him when necessary with advisers, each of Whom is responsible only for the opinion he gives.