What the Executive branch Embraces. The second, great organ, department, or government component, the third, if we accept some writers’ view 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 concerned with the execution of the will of the state as that will have been formulated and expressed in terms of the law.
In this sense, the time embraces the supreme head of the government, the chief of state, as he is called on the continent of Europe (president, king, emperor) and the ministers and the whole mass of subordinate executive and administrative functionaries. They constitute what in Great Britain and the United States is known as the civil service.
Thus, it comprehends the entire governmental organization, except the legislative and the judiciary and possibly the diplomatic corps. Therefore tax collectors, inspectors, commissioners, policemen, and perhaps officers of the army and navy are a part of the executive organization.
What The Executive Branch
According to the partisans of the duality theory of governmental functions, discussed in the other 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 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 entrusted 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 chapter, some writers distinguish between the functions of execution and administration and, consequently, between government branches’ executive and administrative organs. Other writers, like Carre 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. It would seem, correctly so, since there appears to be no government constituting 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 procedure. Consequently, it must be organized on principles that 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 people’s body. Its peculiar function is to deliberate, consult upon society’s general needs and lay down rules of conduct for private individuals and public officials’ guidance.
However, the executive’s role 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. Therefore, the prime requisites for efficiency in the discharge of such functions are 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 look at once secure energy in the executive and safety to the people.
Therefore, a single person or a tiny body of persons is better fitted for the discharge of such duties than a numerous assembly composed of many minds and entertaining various views. To organize the executive power by dividing it among several coordinated and equal authorities would necessarily lead to its enfeeblement, especially in times of crises when promptness of decision and action may be essential to preserving the life of the state.
The testimony of political writers and politicians has been practically unanimous in favor of unity in the executive office organization. No one more powerfully defended it than Alexander Hamilton. The energy in the executive, he said,
“is a leading character 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 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, which is best attained by reposting it in a single hand. Plurality in the executive organization 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.
Nobody can be made to answer for it. Where a number is responsible, the responsibility is easily shifted from one shoulder to another. Hence, both the executive’s incentive 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.
In early times, Sparta had two kings, and the principle of “plurality” wag extended to the organization of subordinate offices. France, after the Revolution, experimented with the plural form of the executive under several different constitutions. That of 1795 vested the executive power in a Directory of live persons, but the results were unsatisfactory.
At present, the executive in every sovereign state, with one exception, is organized on the single-headed principle. The exception is found in the Swiss republic’s constitution, which vests the executive power in a council of seven persons. One of the seven bears the title and dignity of the president of the Confederation and performs the ceremonial duties of the executive office. Still, 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 Swiss people’s habits and traditions, and because the ground had already been prepared through local experience. For a long time, the collegial form of the executive had existed in the separate cantons. 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 the Parliamentary Governed States. While Switzerland is the only independent state in which both the titular and the actual executive power is entrusted 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 German states, notably Prussia, Bavaria, Baden, and Wiirttemberg, 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 Swiss Confederation president, 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 the Reich executive.
Nearly everything Hamilton, Story, Mill, and the others said against plural executives would seem to apply equally to cabinets’ executive government. But experience has not demonstrated the validity of their criticisms. The fact that this government system has continued to spread throughout the world is evidence enough that the government by a plural executive is not in practice attended by the evils 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 executive’s plural form 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 the liberties of the people in general.
For this reason, the system was originally introduced into Switzerland and has been retained there until this day. It is mainly because the executive is often subjected to the control of a council in those branches of administration that 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 d’etat, 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 his 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.
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. Indeed, in two states, namely, Pennsylvania and Vermont, the executive power was virtually vested abroad.
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 (Bundesrat) shared an important part of the executive power with the emperor. So much so, 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 council orders, require for their validity the approval of the Privy council.
However, the approval is a mere form. The president of the French Republic is required to consult the Council of State in many cases, especially regarding issuing ordinances. Still, 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. While the value of advice is fully recognized, they are unwilling to sacrifice the advantages of responsibility to establish 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 executive power exercise. 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. It requires for its efficient performance highly technical and special knowledge, not only on 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 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.
Mode of Choice or The Chief Executive
Four different methods of choosing the chief executive have been followed in practice first, the hereditary principle second, direct election by the people third, in the direct election by a body of intermediate electors, themselves either popularly elected or chosen by some branch of the government and, fourth, election by the legislature.
In all the monarchical states of Europe today, the nominal or titular executive is hereditary in a particular family or dynasty. However, as pointed out in an earlier chapter, elective monarchs were not unknown in former times, and it is still the legal theory that the British monarchy is elective.
Before the rise of popular government, this principle of selection was practically universal, and it still survives in large parts of the world today. Still, it is tolerated perhaps rather than preferred, being more the result of historical conditions than deliberate creation. It is doubtful whether the principle is destined to be extended in the future either through the reorganization of existing states or the establishment of new ones.
The value of a hereditary executive in the state’s government was well set forth by the English writers Bagehot and Todd. Bagehot, in his defense of monarchy, declared that the masses have little respect or reverence for an executive which they assist every half-dozen years in creating. He argued that a hereditary monarch is a powerful means of attaching the masses to the government and securing their loyalty and obedience.
Among the advantages of the hereditary principle, says Burgess, that is manifest even to one surrounded by the prejudices of the New World are, first of all, a respect for government and a readiness to obey the law which can in no other way be attained until the political society shall have reached a degree of perfection far beyond anything which at present exists anywhere in the world.
But When all is said that can be said in favor of the here dietary principle as a mode of selecting the executive, the testimony of experience is against it. It can be looked upon only as a survival of a past age, and its ultimate disappearance will doubt. Less follow in the course of the political evolution of the future.
Direct Popular Election.
The executive’s choice by the direct vote of the people represents the opposite principle to that of the hereditary method. At present, the national executives of a number of the South American republics, notably those of Bolivia, Chile, Mexico, Brazil, and Peru, are chosen by direct popular vote, and this is true of the local state executives in the United States and the local executives of all the Swiss cantons except Freiburg and Valais. In form, the method of electing the President of the United States is indirect, though, owing to a metamorphosis of the electoral system, the method has, in fact, come to be practiced almost direct.
Since the close of the World War, of the new republics established in Europe, only Germany provided for the system of direct popular election. Under the constitution of 1848, the French republic president was elected by direct vote of the people.
Still, the exploitation of this system by Napoleon III to convert the republic into an empire with himself as emperor wholly discredited the system in French eyes, and it was abandoned in 1871. There is little public sentiment in France today in favor of returning to the method of popular election.
The advantages of the method of the popular election are that it is most distinctly in accord with modern notions of popular government, stimulates interest in public affairs, affords a means of political education for the masses and secures the choice of a chief magistrate in whose ability and integrity the people have confidence and to whom he is theoretically at least (except in states which have the cabinet system) responsible for his official conduct.
The principal objections to direct popular election are the incompetency of the masses in a country of the vast area to judge wisely of the qualification of a candidate for so important an office, their liability to be influenced by demagogues, and the general demoralization and the political excitement which are almost inseparable from a contest of such magnitude.
The election of a supreme magistrate for a whole nation, wrote Chancellor Kent, affects so many interests and addresses itself so strongly to popular passions and hold out such powerful temptations to ambition that it necessarily becomes a strong trial to public virtue and even hazardous to the public tranquillity.
Among the framers of the United States constitution, only three or four favored the direct popular election of the chief magistrate. Nearly all the delegates who expressed an opinion on the subject were full of profound distrust of such a method. Roger Sherman declared that the people would never be sufficiently informed of men’s character to vote intellectually for the candidates that might be presented.
Charles C. Pinckney thought the people would be incited by designing demagogues. Gerry stigmatized the proposition as radically vicious; Mason went so far as to say that it would be as unnatural to refer the choice of a proper person for President to the people as to refer a trial of colors to a blind man and Hamilton feared that it would convulse the community with extraordinary and violent movements and lead to beats and ferments that would disturb the public tranquillity.
However, experience has shown that the evils that the framers of the constitution predicted were greatly exaggerated, and, happily, their worst fears have not been realized. Nevertheless, it cannot be denied that some of these evils have not been absent.
The long period of business depression, the intense strain upon the public virtue, the heated political excitement, and the lavish expenditure of money on behalf of presidential candidates, which have come to be regular features of our quadrennial contests over the choice of the chief magistrate in the United States, have abundantly shown that the method of popular election is not in all respects idea One of its worst features is what Mill called the mischief of intermittent electioneering.
When the highest dignity in the state, he declared, is to be conferred by popular election once in every few years, the whole intervening time is spent in what is virtually a canvass. President, ministers, chiefs of parties, and their followers are all electioneered.
The whole community is kept intent on the mere personality of politics. Every public question is discussed and decided with less reference to its merits than its expected hearing on the presidential election. If a system had been devised, Mill went on to say, to make party spirit the ruling principle of action in all public affairs and create an inducement to make every question a party question, it would have been difficult t0 contrive any means better adapted to the purpose.
The indirect election method is the system employed in choosing the national executives of the United States, Argentina, Spain (1931), and Finland (Constitution of 1919). However, the elective scheme for choosing the President of the United States has, as has been said, come to be almost directly in fact. The advantages claimed for the indirect system are that it affords a means of avoiding the heats, tumults, and convulsions of direct election, and at the same time leads to a more intelligent choice by restricting the immediate selection to the -a small body of capable representatives:
The choice of several to form an intermediate body of electors, said Hamilton, in defense of the scheme adopted for the election of the President of the United States, and the metamorphosis of which was not then foreseen, will be much less apt to convulse the community with any extraordinary and violent movements than the choice of one who was himself to be the final object of the public wishes.
It was desirable, he continued, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station. Their fellow-citizens selected a small number of persons from the general mass. Will be most likely to possess the information and discernment requisite to so complicated an investigation.
In theory, the method of indirect election possesses conspicuous merits. Still, the difficulty lies in the fact that the electors are apt to be chosen under party pledges to vote for a particular candidate and become mere agents for registering the voters’ will. This is almost inevitable in states where political parties are highly developed and well organized.
This is exactly what happened in the United States as soon as party lines came to be fully drawn, and party discipline became effective. In the early presidential elections, the best results expected of the electoral scheme were fully realized, the electors exercising their full judgment in choosing the President, but over time, they became mere party puppets with no discretion or freedom in the discharge of what were originally intended to be solemn and important functions. Their duties now consist of registering the party voters’ choice, a function which an automaton without intelligence volition could as fittingly discharge.
Thus what was intended to be a scheme of indirect election, in which the immediate choice of the chief executive was to be made by a select body of competent men, has in the course of a remarkable development become in reality a system of direct election by the millions, who still go through the form of voting for electors whose real office has long since disappeared. Such was the scheme of which Hamilton did not hesitate to affirm that if the manner of, it be not perfect, it is at least excellent, and which Was the only part of the constitution “that escaped without severe censure or which received the slightest mark of approbation from its opponents. ”
Election by the Legislature.
Finally, the chief executive may be chosen by the legislative branch of the government. This method is followed in Switzerland in France (Where the two chambers organized in the national assembly at Versailles constitute the electoral body for choosing the president of the republic) in Czechoslovakia, Poland, Portugal, Venezuela, and China.
In Prussia, where there is no president of the republic, the minister-president is elected by the Landtag, the lower chamber of the legislature-and this system is in force in various other German states. This was the system employed for the governor’s election in a number of the American states for a time after the Revolution and is still the method prescribed in several of them in case no candidate receives a majority of the popular vote. The method was decided upon by the Philadelphia Convention of 1787 for the President of the United States election. Still, it was finally abandoned upon reconsideration for the scheme mentioned above.
The main objection to choice by the legislature is that it violates the principle of the separation of governmental powers by imposing upon the legislative branch a duty alien to its primary function and makes the executive, to some extent, an agent or instrument of the legislature. If the executive owes his office to the legislature, bargains, intrigues, and cabals between him, and it will not be wanting.
It would be in the power of an ambitious candidate, observed Judge Story, by holding out the rewards of office, or other sources of patronage and honor, silently but irresistibly to influence a majority of votes and thus by his own bold and unprincipled conduct to secure choice, to the exclusion of the highest and purest and most enlightened men in the country.
A similar opinion was entertained by Chancellor Kent, who remarked that all elections by the representative body are peculiarly liable to produce combinations for sinister purposes. Both reason and experience (for example, in France, where the president has been reduced to a position of dependence upon the legislature and where he may be forced by it to resign his office) teach that election by the legislature not only impairs the independence of the executive and tends to make him subservient to its will, but creates a powerful temptation to an ambitious candidate to gain the support of the legislature by promises of official reward or influence. Once elected, he is under the same temptation to secure reelection. Tobe fully independent of legislative control and free of such temptations, the executive must derive his office from a different source.
Finally, it should be observed that the imposition of so important a political duty upon the legislature is likely to interfere with its normal function of lawmaking, by introducing a distracting element which on occasions of great and exciting contests must necessarily consume its time, lead to conflicts and deadlocks, and give a party coloring to the consideration of many measures which are in reality nonpartisan in character.
The chief argument favoring choice by the legislature is that the selection is likely to be more wisely made than when done by the masses of voters or by a body of intermediate electors. Being actively concerned with public affairs and acquainted with the leading statesmen, the legislative branch members are of all persons most qualified to choose a fit man for so high a station.
John Stuart Mill was an advocate of this method for the election of executives of republics, although he questioned whether it was the best for all times and places. “It seems better,” he said, that the chief magistrate in a republic should be appointed avowedly, as the chief minister in a constitutional monarchy is virtual by the representative body. The party which has the majority in parliament would then, as a rule, appoint its own leader, who is always one of the foremost, and often the very foremost, the person in political life.
Whatever the merits and demerits of the legislature’s system of election, the present practice is distinctly in favor of it. Among republics, outside of America, it is now the most widely accepted mode of election. In France, where it has existed since 1871, proposals to substitute the popular election system have been rare, and they have found few advocates.
Numerous proposals, however, have been made and advocated for the enlargement of the electoral body which chooses the president, by joining with it some delegates representing certain local bodies or interests such as the departmental councils, the academies, the universities, the chambers of commerce, the labor unions, etc.
It may be interesting to note in this connection that the people of Switzerland in 1900. defeated by an immense majority a proposal to substitute popular election of the federal executive council in the place of the legislature’s existing method of election. This was a striking illustration of the Swiss conception that executive functionaries’ popular election is not an essential feature of democracy.
In parliamentary-governed states or those in which the cabinet system is fully established, the actual executive is virtually chosen by the legislature or by the lower house of the legislature. In those states-so numerous and so well governed-there is no attempt to separate the executive and legislative powers. Still, on the contrary, the plan is devised to secure cooperation and harmony between them.
While the titular executive nominally appoints the actual executive-the cabinet or at least the prime minister-may, the appointment must conform with the wishes of the popularly elected representatives in the legislature, as explained in a previous chapter.
The Term of The Chief Executive
Views of Hamilton and Story
The ingredients which constitute energy in the executive, said Alexander Hamilton, are first, unity secondly, duration thirdly, an adequate provision for its support fourthly, competent powers. Simultaneously those that constitute safety in the republican sense are, first, a due dependence on the people; secondly, a due responsibility. The element of duration was, he observed, necessary to secure the executive magistrate’s personal firmness in the employment of his constitutional powers and to ensure the stability of the system of administration that may have been adopted under his auspices.
Hamilton stood almost alone among the distinguished men Who framed the constitution of the United States in advocating a good behavior tenure for the President, the idea being repugnant to the views of the majority of the delegates as being inconsistent with republican ideas, and hence it received little consideration at the hands of the convention. Concerning the length of term sufficient to secure the elements of firmness in the executive and stability in the administration, Hamilton declared that the longer the office duration, the greater would be the probability of obtaining so important an advantage.
In this Opinion, judge Story fully concurred. He declared few men would be willing to commit themselves to a course of policy whose wisdom might be clear to themselves if they could not be permitted to complete what they had begun. Of what consequence, he observed, will it be to form the best plans of executive administration, if they are perpetually passing into new hands before they are matured, or maybe defeated at the moment when their reasonableness and their value cannot be understood or realized by the public-who will plant when he can never reap.
The practice of States.
That the term of the chief executive ought to be long enough to secure these advantages, no one will deny. Still, as to what this period is, the testimony of political writers and states’ practice differ. In practice, the executive tenure ranges from two years, which is the rule in many of the North American states, to seven years, which is the term of the French Republic, Portugal, Germany, Czechoslovakia, Poland, and Venezuela. In the state of New Jersey, the executive has a three-year term. The remaining states are divided about equally between two and four-year terms.
The term of the Swiss Executive Council is three years that of the presidents of the United States, Brazil, and Austria, four years the presidents of Peru and China are chosen for five years and those of Chile, Argentina, Mexico, and Finland six years. The titular chief executives of the self-governing dominions of Great Britain hold during the crown’s pleasure. The cabinets in these and all other states having the cabinet system of government hold office, of course, so long as they can command the legislature’s support.
Arguments for and against Short Terms.
The argument favoring short tenures for the executive is that the shorter the term of office, the greater the security against power abuses. Conversely, the longer the term, the less will be the means of enforcing responsibility and the greater the executive’s personal ambition.
The belief has always been widespread in democratic countries that executives with long tenures are exposed to a strong temptation to transform their offices employing a coup d’etat into monarchical tenures as Napoleon did when he converted his consulship ten years into one for life and then into an imperial office.
On the other hand, as Judge Story remarked, the testimony of experience shows that a concise term is, practically speaking, equivalent to a surrender of the executive power as a check-in government. Besides, it leads to an intolerable vacillation and imbecility.
A man is apt to take a slender interest, said Hamilton; it is short-lived an advantage and feels little inducement to expose himself to any considerable inconvenience or hazard. The most he added that could be expected of most men in such positions would be the negative merit of not harming instead of the positive merit of doing good.
Moreover, unless the practice of reelection is followed, the office must continually be occupied by an inexperienced executive since he cannot acquire any considerable degree of familiarity with its duties in so brief a period. Finally, short tenures necessitate a frequent recurrence of elections, with the inevitable distractions and disturbance to a business inseparable from important political contests.
A four-year tenure has much more to commend it. It is a period, observed Chancellor Kent, perhaps reasonably long enough to make the executive feel firm and independent in the discharge of his trust and to give stability and some degree of maturity to his system of administration and certainly short enough to place him under a dire sense of dependence on the public approbation At all events, it is not long enough, as Judge Story remarked, to justify any alarms for the public safety.
On the other hand, a six-year or seven-year term would seem unduly long under a system in which the president actually exercises the powers conferred upon him and is supposed to be responsible to those who elect him for how he exercises them. A responsibility that cannot be enforced at shorter intervals than once in six or seven years manifestly loses much of its effectiveness.
The Question of Eligibility.
Closely connected with the length of term is the question of the chief executive’s eligibility for a second term. The constitution of the United States, which fixes the term of the President at four years, expressly declares that he shall be eligible to succeed himself, and there is no constitutional limitation as to the number of terms which he may serve.
However, tradition and custom have limited the number to two, and, with two exceptions, no incumbent of the office has ever attempted to break this well-established rule. In contrast, several have refused to be candidates for a third term in the face of a public sentiment which apparently demanded their reelection.
This usage, observed by Chancellor Kent, has indirectly established by the force of public Opinion a salutary limitation to his capacity for a continuance in office. The constitution of the Southern Confederacy fixed the term of the executive at six years. It declared the President ineligible to succeed himself, and this principle has been introduced into the constitutions of a few states, for example, Portugal (term 7 years) and Mexico (term 6 years).
The constitution of Mexico in 1857 fixed the term of the president at six years and was silent on the question of eligibility. Under it, Diaz was re-elected for six successive terms. However, the constitution of 1917 (which lixed the term at four years, later changed again to six) declares the president ineligible for reelection. In some states, the president is ineligible to succeed himself but is reeligible after the lapse of an intervening term. Among these are Brazil, Chile, Argentina, Spain, and Peru. The constitutions of China, Austria, and Czechoslovakia allow the president to serve two terms, after which he is ineligible for reelection.
The German constitution, which fixes the term bf the president at seven years, expressly declares that he is eligible to ref-Election. But this provision was the object of criticism by the Social Democrats, who argued for a shorter term-five years coupled with ineligibility to reelection. Although possessing the long term of seven years, the president of the French Republic is eligible to succeed himself. Still, a custom now definitely established limits him to a single term.
Only one president (Grevy) has ever been re-elected to a second term. None of his successors have been candidates for reelection. In fact, most of them have declared in their messages of thanks at the beginning of their terms, or otherwise made known their intention, that they would not seek reelection. Therefore, it may now be said that the single-term tradition has become an established rule of French constitutional practice.
Arguments in Favor of a Single Term-
The principal argument favoring restricting the executive to a single term is that it would serve as a check upon his personal ambition and prevent him from a cringing subservience to procure his reelection or from resorting to corrupt intrigues for the maintenance of his power. If the chief executive may immediately succeed himself, it is contended, the value of short terms is in effect destroyed.
Ineligibility to a second term, therefore, would tend to secure greater independence in the executive and at the same time greater security to the people. An executive capable of succeeding himself is exposed to a strong temptation to conduct his administration with the one end given securing reelection.
Writing on this point about a century ago, De Tocqueville declared. It is impossible to consider the ordinary course of affairs in the United States without perceiving that the desire of being reelected is the chief aim of the President that his whole administration, and even his most indifferent measures, tend to this object and that, as the crisis approaches, his personal interest takes the place of his interest in the public good.
The principle of re eligibility renders the corrupt influence of elective government still more extensive and pernicious. It tends to degrade the political morality of the people and, to substitute adroitness for patriotism. Again he affirmed, What cannot be denied, that whatever the prerogatives of the executive power may be, the period which immediately precedes an election, and the moment of its duration, must always be considered as a national crisis, Which is perilous in proportion to the internal embarrassments and the external dangers of the country.
Moreover, if the executive may succeed himself, a large portion of the latter part of its first term will be occupied with matters relating to his candidacy, to the neglect of his official duties. On this point, De Tocqueville truthfully remarked that the head of the executive government is wholly occupied by the coming struggle at the approach of an election. His plans doubt he can undertake nothing new. He will only prosecute with indifference those designs which another will perhaps terminate.
Movement in the United States to Limit the President to a Single Term-
In recent years, there has developed considerable sentiment in the United States in favor of lengthening the term of the President and making him ineligible to succeed. As is well known, the convention which framed the constitution originally agreed upon a seven-year term for the President without the privilege of reelection, but when it was decided that Congress should not elect him, the main objection to eligibility was removed.
In 1912 President Wilson was elected on a platform that pronounced a constitutional amendment making the President ineligible for reelection. However, he himself did not approve it and, in fact, declared against it. In 1913 the Senate, by a vote of 47 to 23, adopted a resolution to amend the constitution to fix the presidential term at six years and render the occupant of the office ineligible for a second term.
The Judiciary Committee of the House of Representatives made a favorable report on the proposal. In its report, it enumerated the following reasons in support of the amendment.
First, it would remove the President’s temptation to use his office’s powers and patronage improperly to obtain reelection.
Second, it would tend to improve the administration of the laws generally and to increase the nonpartisan and businesslike efficiency of the executive department by taking away from the President all inducement to build up a political machine instead of attending to his duties as chief magistrate of the republic and third, it would save the President from the humiliating necessity of going on the stump to repel assaults made upon him.
However, the resolution never came to a vote in the house, though there is still much sentiment in favor of the proposed change.
Arguments in Favor of Reeligibility.
To many minds, however, the advantages of eligibility are greater than the disadvantages. By no one were those advantages more clearly and forcibly stated than by Hamilton in The Federalist. The eligibility of the executive is necessary, he declared, to enable the people, when they see a reason to approve of his conduct, to continue him in the station to prolong the utility of his talents and virtues and to secure to the government the advantage of permanency in a wise system of administration.
First of all, the executive’s restriction to a single brief-term would tend to diminish the inducements to good behavior. “There are few men,” he observed, who would not feel much less zeal in the discharge of duty when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them.
The desire for reward and fame, he continued, is one of the strongest incentives of human conduct. The best security for humanity’s fidelity of humanity is to make their interest coincide with their duty. Furthermore, the rule of ineligibility would tend to create in the executive a propensity to make the best use of his opportunity. At the same time, it lasted, for promoting his personal ends, and he might not scruple to resort to the most corrupt expedients to make the harvest as abundant as it was transitory. There is, said Hamilton, an excess of refinement in the idea of disabling the people from continuing in office those who have entitled themselves to the public approbation and confidence.
If he argued, the executive could expect to prolong his honors by his good conduct, and he might hesitate to sacrifice his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition.
In the next place, the erect would sometimes be to deprive the state of the services of a wise and experienced official by compelling him to abandon his office at the very time when because of his experience, he is best fitted to serve it. It would be said Judge Story, be equivalent to banishing merit from the public councils because it had been tried. What could be more strange observed this distinguished jurist, than to declare when wisdom was acquired that the possessor of it should no longer be enabled to use it for the very purpose for which it was acquired.
Finally, it would, to quote Hamilton again, Operate as a constitutional interdiction of stability in the administration. An interruption would follow every election in the continuity of executive policies, and the latter part of each term would be a period of doubt of weakness and passive inactivity. The administration, in short, would drift along without plan or policy.
In conclusion, it may be observed that the wisdom and expediency of restricting the chief executive to a single term necessarily depend largely upon the length of the term and the extent of the powers that he actually exercises. Manifestly an executive with a term of six or seven years might be made ineligible to a second term with far less impropriety than one whose term is two years, for the obvious reason that his responsibility would be greatly diminished and his means of influence and patronage immensely increased to check in a great measure the just expression of public opinion and the free exercise of the elective franchise. Likewise, there would be no great danger in the perpetual eligibility of a president, like France, who is merely a titular figurehead with few powers that he can actually exercise.