The American executive and executive methods

Front matter

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Prefatory Note

This note is but to state that the publication of this book, long delayed because of unanticipated and imperative duties under which I have been placed, is made possible even now only by the able co-operation of John F. Sanderson, Esq., whom I have associated with me in this labor in order to complete the series.

J. H. P.

New York City, Oct. 31, 1908.

Contents

CHAP.

PAGE.

I. Colonial Govebnobs 3

Chapter I Colonial Govisnobs

The American Executive is an institution of native origin. The American executive power has been always a constitutional, in the sense of a written, power. It has been always conferred and limited, specified, and occasionally defined, either by royal charter, commission and instructions, by corporate by-laws, by proprietary frame of government, or by written constitution. The American Executive is not the successor of the British king. The Declaration of Independence when proclaimed found colonial governments organized, with legislative, executive and judicial powers long in use, and with a settled form of administration based upon the common law of England modified as suited to their condition, the English statutes applicable, and their own statute laws and local usages. Connecticut and Rhode Island, ha^^ng elective executives, continued under their royal charters, Connecticut until 1818, Rhode Island until 1842. As the executives of the other colonies were constituted by royal or proprietary authority, these formed new constitutions in which the executive power was composed of familiar elements. The state executive was modeled upon and took the place of the provincial governor. We will look, therefore, for a moment, at the prototype of the oflSee that has become in one of its variations the first in power and dignity in the world.

The oflBce and function of provincial governor developed during a period of change in English constitutional history. The first permanent colonial settlements were made under the Stuart kings, and continued during the war of king and Parliament, the parliamentary and military despotism of Cromwell, the Stuart reaction and the changes wrought by the Revolution of 1688 — ^through the period during which the principles of ministerial responsibility, cabinet administration and party rule were becoming established. Oeorge III. had himself instituted and was engaged in a constitutional reaction at the time the colonies revolted. He sought to rule as well as to reign but was compelled to yield. Habeas corpus, resistance to law by proclamation, the right of the people to vote their own money for supply, and other principles of the petition of right and declaration of right, contended for during this period in England, became the established rights of Englishmen, and as such were appropriated to themselves by the colonists. The Declaration of Independence was framed in protest against executive abuses and usurpations, but it was in reality an expression in permanent form of resistance to the asserted authority of Parliament. *

iThe Declaratory Act of 1766 asserted that the king's maj-

As a large portion of the local authority of the colonial governors was interpreted by the principles of royal prerogative, a preliminary statement of this prerogative may be made, although no complete description of prerogative powers was ever practicable. **The Crown writers considered it not necessary to maintain that all the royal prerogatives exercisable in England, were of course exercisable in the colonies, but only such fundamental rights and principles as constituted the basis of the throne and its authority, without which the king would cease to be sovereign in his own dominions. Hence the attributes of sovereignty, perfection, perpetuity and irresponsibility,

esty, with the advice of Parliament had, and of right ought to have, fuU power to make laws of sufficient validity to bind colonies in all cases whatever. Pitt asserted the legislative power of Parliament but said: ''Taxation is no part of the governing or legislative power. Taxes are a voluntary gift of the Commons alone." Lord Camden maintained the distinction and Lord Mansfield ridiculed it. Royal governors supported their demands with arrogant claims of royal prerogative and set up their instructions against the express provisions of royal charters and colonial laws. Boyal ministers asserted that the king's instructions were the laws of the land " for the king is legislator of the colonies." In 1774 Lord Mansfield decided that the king in council might lawfully impose a duty upon exports from a newly ceded territory, conquered from France (the Island of Grenada) unless precluded by some prior act, but that in the particular case the Order in Council in question (1764) imposing the duty was invalid because the king in his proclamation of 1763 had precluded himself from exercising a legislative authority over the island in consequence of his grant of legislative powers to its governor, council and assembly, Campbell v. Hall, Cowper, 204.

which were inherent in the political capacity of the king, belonged to him in all the territories subject to the Crown, whatever was the nature of their government and laws in other respects. Bver3rwhere he was the head of the Church and the fountain of justice, everywhere he was entitled to a share in the legislation (except where he had expressly renounced it), ever3rwhere he was generalissimo of all forces and entitled to make peace or war. But minor prerogatives might be yielded where they were inconsistent with the laws or usages of the place, or were inapplicable to the condition of the people.

**In every question that respected the royal prerogatives in the colonies where they were not strictly fundamental in their nature, the first thing to be considered was whether the charter of the particular colony contained any express provision on the subject. If it did, that was the guide. If it was silent, then the royal prerogatives in the colony were precisely the same as in the parent country ; for in such cases the common law of England was the common law of the colonies for such purposes. Hence, if the Colonial Charter contained no peculiar grant to the contrary, the king might erect courts of justice and exchequer therein; and the colonial judicatories, in point of law, were deemed to emanate from the Crown and under modifications made by the colonial assemblies under their charter. The king also might extend the privilege of sending representatives, to new towns, in the colonial assemblies. He might control and enter a nolle prosequi in criminal prosecutions, pardon crimes and release forfeitures. He might present to vacant benefices and he was entitled to royal moneys, treasure trove, escheats and forfeitures. No colonial assemblies had a right to enact laws without the assent of the Crown either by charter or commission or otherwise, and if they exceeded the authority prescribed by the Crown, their acts were void. The king might alter the constitution and form of government of the colony where there was no charter or other confirmatory act by the colonial assembly with the assent of the Crown, and it rested merely on the instructions and commissions given from time to time by the Crown to the governors. The king had the power to vest in the royal governors in the colonies from time to time such of his prerogatives as he should please : such as power to prorogue, adjourn and dissolve the assemblies; to confirm acts and laws ; to pardon offences ; to act as captain-general of the public forces; to appoint public officers; to act as chancellor or supreme ordinary; to sit in the highest court of appeals and errors; to exercise the duties of vice-admiral ; and to commission privateers. These last, and some other prerogatives of the king, were commonly exercised by the royal governors withoilt objection.'' ^

The king in council assumed, about 1680, an appellate jurisdiction, which was disputed by some of the colonies, but was in full and undisturbed exercise throughout the colonies at the time of the Revolution.^ In Maryland, Connecticut and Rhode Island, the laws were not required to be sent to the

1 1 Story, Constitution, sec. 184. ^Ihid,, sec. 176.

king for his approval. In Connecticut and Ehode Island the governor had no negative upon the laws; in Pennsylvania the council had no negative but was merely advisory to the governor; in Massachusetts the council was chosen by the legislature and not by the Crown, but the governor had a negative on the choice.^ In all the colonies local representative bodies were established, and the local legislatures were asserted to possess full local legislative power independently of Parliament. For a long period prior to the Revolution the provinces of New Hampshire, New York, New Jersey, Virginia, the Carolinas and Georgia, were under provincial or royal government. Proprietary governments existed in Maryland, Pennsylvania and Delaware; charter governments in Massachusetts, Rhode Island and Connecticut. Delaware had a separate assembly, but was under the executive authority of Pennsylvania. The proprietary governor was the agent of a private person or group of persons; the royal governor received his power from the Crown. The extent of the powers of these did not greatly vary, and they had as a rule beside their special and internal responsibilities certain functions pertaining to the general administration of the royal government, such as those relating to Indian affairs and trade regulations under the navigation laws.

With local variations, the general constitution of executive government in the colonies, was a single head, appointed by the Crown or proprietary, except

1 1 Story, Constitution, sec. 176.

in Connecticut and Rhode Island, with a council, in the appointment of which the governor had more or less influence. The early governor was not the executive of a settled political conununity. Political functions were joined to commercial. Turbulence and an exposed frontier developed a military element. The powers conferred were expressed at first in very general terms, although, as time passed, the commissions and instructions increased in length and particularity. Lord Delaware, in 1610, was commissioned governor and captain-general with power to enforce martial law **and upon all other cases as well capital as criminal and upon all other accidents and occasions there happening, to rule, punish, pardon and govern according to his discretion or instructions, or by laws enacted by him, or with the advice of his council.'' Governor NichoU's commission was similar. The modern separation of powers was not thought of, and the governors exercised a more or less limited faculty of legislation by ordinance or regulation. In the earliest periods the governor was sometimes a member of the Assembly ; sometimes governor and council and Assembly sat together, the governor exercising the right both of vote and of veto. In Maryland he used proxies and sununoned additional members of Assembly by special writ. Separation of the Assembly, the representatives of the people constituting the lower house, commenced in 1666, in Virginia, and prevailed in all the Colonies except Pennsylvania. The governor's right to sit in the upper house was advised against by the Crown officers in 1725, but a controversy on the subject continued.

A

The governor succeeded in retaining his veto and a general control of councilors through his influence in their appointment. In most colonies the council was the highest court of appeal.

The governor's appointment took the form of an order of the king in council on the nomination of the Board of Trade or the proprietaries. The commission was usually at the king's pleasure. It was terminated by the king's death, until by 7 and 8 ^ . William III. and 1 Anne it was provided that the commission should continue for six months after the demise of the Crown. The governor was expected to reside within the colony, and it became usual to insert in his commission or instructions a clause forbidding him to come to Europe without special permission from the Crown. Disability was provided for by succession of a lieutenant-governor, senior councilor, or appointee of council. His emoluments were salary, fees and shares of fines and forfeitures. He recommended to the Assembly legislation desired by the Crown, and was expected to report fully to the home government the condition, wants, conmierce, military resources, revenue and administrative and legislative proceedings of his colony. The Board of Trade, originating in 1696 in a Crown commission, became the home organ for conducting colonial affairs, and the governor's correspondence was with the Board and one of the principal secretaries of state. Except in Massachusetts and Pennsylvania councilors were appointed by the Crown. Twelve was the usual number. The practice came to be to appoint one out of three proposed by the governor. He made provisional appointments. Local representation was an element in choice of councilors. They were removed by the Crown and were subject to suspension by the governor. Sometimes certain officers were ex officio councilors. Meetings of the council were called by the governor, though they were sometimes stated. The functions of the councils were judicial and advisory, and legislative when sitting as an upper house of Assembly.

The general principle pervading the provincial executive authority was that of agency for the Crown, interpreted by the traditions of the royal prerogative. Power of appointment; chief command; calling and dissolving assembly ; co-ordinate power in legislation ; the right to grant charters to cities and towns, to establish ports, markets and fairs, to pardon except for treason or felony; — these were principal powers of the governor. His power was based on his commission and on his instructions. **The conmiission contained the grant of power, while the instructions told how that power was to be used and frequently limited its scope. For example, the commission empowered the governor to act with a quorum of three councilors, the instructions required a council of five except in emergencies; the commission authorized him to appoint judicial officers, the instructions made necessary the advice and consent of the council for the making of such appointments; the commission authorized him to erect courts, the instructions forbade the erection of courts without special warrant from the Crown; finally, the commission empowered him to make laws in conjunction with the council and Assembly, the instructions forba^.b him to assent to certain classes of laws/'^

The executive was further limited to govern ''according to such reasonable laws and statutes" as might be enacted by the provincial legislatures and by local usages of various sorts based upon precedent. \

His commission authorized him to arm, muster and command all persons residing within his province, to transport them from place to place, to resist all enemies, pirates or rebels, if necessary to transport troops to other provinces to defend such places against invasion, to pursue enemies out of the province, to do independently these and other things properly belonging to the office of commander-in-chief. By advice of his council he might establish fortifications and execute martial law. His vice-admiral's commission conferred extensive powers. He conducted affairs with other colonies and with the Indian tribes and, with the advice and consent of his council, concluded treaties. Indian wars and boundaries were fruitful subjects of discussion. The governor's power of military appointment was independent ; of civil appointment limited. He kept the public seal, made grants of lands and of charters of incorporation. When his instructions were silent he was authorized, with the advice and consent of council, to take provisional action, giving immediate notice to the home government. His pardoning power was limited; he

1 Th« Provincial Governor, E. B. Greene, p. 94.

controlled prosecutions. The important judicial function of the governor and council was the hearing of appeals under various liuiitations of amount involved. As keeper of the seal he had a theoretical equity jurisdiction which was not favorably regarded. *'As a part of the ecclesiastical jurisdiction he had the probate of wills and the issue of marriage licenses; either alone or with the council he usually acted as a court of probate; in Massachusetts and New Hampshire at least, the governor and council constituted a court for the decision of questions of marriage and divorce.''^ Beyond his absolute reto, his influence in legislation was more political than legal. His appointment of sheriffs had its influence upon the elections. Salaries, the voting of supplies, and the control of appropriations by his warrant, were subjects of interminable controversy in the assemblies. ** * Every proprietary governor,' it was said, *has two masters; the one who gives him his commission and the one who gives him his pay,' adding, *the subject's money is never so well disposed of as in the maintenance of order and tranquillity and the purchase of good laws.' "^ He was subject to removal by the home government, acted under the sanction of an oath and was subject to penal provisions. In 1700 the jurisdiction of the King's Bench over him in criminal matters was defined by Parliament. In 1770 his civil liability was decided by Lord Mansfield — **He must be accountable in the Court of

iThe Provincial Governor, E. B. Greene, p. 142. ^Ihid., p. 175.

King's Bench, for otherwise he could be held to account nowhere."^ Legal action was rare. The resort to Westminster Hall for remedy was almost impracticable.

1 Fabrigas v, Mostyn, 20 How. St. Tr., 231.

U

Chapter II The American State Executive Under The Con- Federation

The Declaration of Independence marked an era in constitutional history. In 1776 and soon after, the colonies, excepting Connecticut and Rhode Island, framed new constitutions, embodying the new principle, now widely adopted as the fundamental principle of a frame of government, namely, the separation, so far as practicable, of the legislative, executive and judicial powers, including the determination of the functions to be exclusively vested, or shared, or checked.^ Those functions which were selected, enumerated and vested in the executive were accounted to be properly executive in their nature, and were derived chiefly if not wholly from those formerly exercised by the provincial governors. These selected functions, continuing under new limitations, were interpreted by the common law — the common law of the colonies, with its retrospective view. No novelties were introduced; the ordinary

1 Virginia, 1776: The legislative, executive and judiciary departments shall be separate and distinct so that neither exercise the powers properly belonging to the other, nor shall any person exercise the power of more than one of them at the same time, except that the justices of the county courts shall be eligible to either house of assembly.

practical administration continued as before, substantially modified only by the new definitions and by its independence of the Crown. Practical experience and an observation from afar of the course of events in England, had enabled the colonists to undertake the new definitions of power with clear views. The royal attributes of sovereignty, perfection, perpetuity and irresponsibility, ascribed to the king, were seen to be inherent in the people. The American executive was not a sovereign, but an agency. He was a mortal man. His imperfection and mortality were recognized. Provision was made for his impeachment and punishment, and for a temporary succession in case of his disability.

The legislative powers under American state constitutions are general. Like the parliamentary power, they have a legal omnipotence, subject only to the limitations and exceptions defined by the Constitution of the state and of the United States. But the executive and judicial powers are granted and enumerated. They are not general in the sense in which the legislative powers are general. Having been granted and enumerated they are both interpreted by the common law. The constitution of Virginia of 1776 declared that the governor should not *' exercise any power or prerogative by virtue of any law, statute or custom of England'' and gave emphasis to the declaration by providing that he should not *' prorogue or adjourn the Assembly, nor dissolve them at any time." The South Carolina constitution of 1776 vested the executive power in the *' president and conmoiander-in-chief limited and restrained as aforesaid." North Carolina and Delaware made similar provision. The Maryland constitution of 1776 provided that the governor should not ** under any pretense exercise any power or prerogative by virtue of any law, statute or custom of England or Great Britain."

In 1776/ Connecticut enacted the continuance of the charter of 1663 as the supreme law of the State ** under the sole authority of the people thereof, independent of any king or prince whatever." Rhode Island after enacting a change of allegiance seems to have proceeded silently under her old charter. The other states, not having elective executives, formed new constitutions. The preamble of the New Hampshire constitution recites: '*The sudden and abrupt departure of His Excellency John Wentworth Esq. our late governor, and several of his council, leaving us destitute of legislation and no executive courts being open" we are therefore ** reduced to the necessity of establishing a form of government." And the preamble of the constitution of New York, reciting the exclusion of the colony from the protection of the king of Great Britain expressed the inconvenience of the existing government by a congress (of the state), and by committees, in which, as of necessity, many

1 The constitutions of this period are : South Carolina, 1776, 1778, 1790; New Hampshire, 1776, 1784, 1792; New Jersey, 1776; Maryland, 1776; Virginia, 1776; North Carolina, 1776; Pennsylvania, 1776, 1790; Delaware, 1776, 1792; Georgia, 1777, 1789; New York, 1777; Vermont, 1777, 1786, 1793; Massachusetts, 1780. Some intermediate constitutions are not referred to. Vermont is included though not fully recognized until 1791.

2 17 legislative, judicial and executive powers had been vested.^

The settled form of constitutional organization came to be: a governor, exercising a sole authority checked in part by the advice and consent of a Senate or upper house; and two houses exercising legislative powers subject to the executive's suspensive veto. Under the Confederation the constitutions adopted show the transition from the provincial to the modem form of organization. In Pennsylvania, until 1790, the executive power was vested in a governor and council, the legislative in a House of Representatives. In New Hampshire, Vermont, New Jersey and Georgia, the council constituted a Senate or upper house of Assembly. The Senate of Vermont

IGreneral Gage, the last royal governor of Massachusetts, was besieged in Boston. Eden of Maryland, Dunmore of Virginia and Campbell of North Carolina, found refuge on British ships of war. Grovernor Franklin of New Jersey was sent under arrest to Connecticut. Governor John Penn, of Pennsylvania, was imprisoned in 1777, refusing to sign a parole.

Governor Gage arrived from England, May 17, 1774, to succeed Governor Hutchinson. He was received with every mark of respect by the civil authorities, the military and a vast concourse of the inhabitants. When his commission was read in the council chamber salutes were fired and the people cheered. A few days after he was escorted to Salem and was there received by a procession. The Assembly met May 26, in Boston. It elected twenty-eight councilors, of which Governor Gage negatived thirteen. He gave notice of the king's command for holding the General Court at Salem and adjourned the court to meet there. "Hence the assembly was in session on the seventeenth day of June in the old and quiet town of Salem. It contained members who voted for the resolve of 1764, inviting all the assemblies to concert of was constituted in 1836. In New Hampshire from 1790 and in the original constitutions of South Carolina, Virginia, Maryland, North Carolina, Delaware, New York and Massachusetts, a council to the governor, as a body separate from the upper house, was constituted. It was variously styled ''council of state," ** privy council," or simply, **the council." In New York it took the form of a council of appointment. The Maine constitution of 1820 adopted the council as it existed in Massachusetts, and it became a permanent institution in these two states and in New Hampshire. In Maryland it continued until 1851; in Virginia, the number being reduced to three in 1830, it continued until the Civil War ; in New York, the council of appointment continued until 1821;

action; for the call of the Congress of 1765; for the circular letter of 1768, — and who were of the 'glorious ninety-two' who refused to obey the king's order to rescind the letter. The doors of the chamber in which they met were locked as was usual when important business was to be transacted. Samuel Adams submitted resolves designating the first day of September as the time, and Philadelphia as the place for holding the Congress, providing for the appointment of five delegates, and for a tax on the towns of five hundred pounds to defray the expenses. Thomas Flucker, bearing a message from the governor, applied for admission. On being denied, he stood on the stairway leading to the hall, and read to the crowd a proclamation dissolving the assembly [a power not granted the governor who was in time to take the place of the royal governor]. The House, however, went on with its business. The resolves were adopted and the speaker was ordered to transmit them to the speakers of the assemblies of the continent." Frothingham's Rise of the Republic, 331. This wiU suffice to indicate how the royal executive authority came to an end in the colonies.

South Carolina and Delaware abandoned the council in 1790. In Pennsylvania the council was elected from districts under a system of rotation. In New Hampshire and Vermont it was elected; in New Jersey one member of council was elected from each county and seven members were a quorum to advise the governor. In South Carolina three were chosen by the Assembly and three by the legislative council ; in Delaware two each by such bodies; in New York the council of appointment was chosen by the assembly from the senate; in Massachusetts, North Carolina, Virginia and Maryland, the council was chosen on joint ballot of the two houses of the legislature. It became elective in Massachusetts in 1855.

The provision was general that the acts and proceedings of the council should be recorded and signed by those consenting; that any member might cause his protest against any action, and his reasons for it, to be recorded ; and that the proceedings of the council should be subject to the call of either house of the legislature.

The powers of the council were variously specified. The Virginia constitution of 1776 provided that the governor should, with the advice of the council of state, exercise the executive powers of government according to the laws of the commonwealth; the constitution of South Carolina provided that he should not be obliged to consult the council except as therein provided. Appointments, embodiment of the militia, pardons, embargoes, call of extraordinary sessions of the legislature, its adjournment in case of disagreement between the two houses, were subjects commonly assigned to the action and advice of the council.

The principle of the separation of the powers of government in its practical interpretation by the framers of the first American constitutions was applied to the official persons in whom the powers were vested and by whom they were to be exercised, so that, as stated above, those officers entrusted with powers under either branch of the government should not exercise those pertaining to another branch; but as to the mpde of choice of the persons by whom executive and judicial functions might be exercised, a different principle prevailed. Chief executive officers were chosen by the legislature, and the high judicial officers were appointed by the executive, subject to the constitutional check. The modern tendency is to a further separation, so that the chief and principal officers of each of these two branches shall be chosen by the direct action of the people.

Under the first constitutions of New Jersey, Maryland, Virginia, North Carolina, South Carolina, Pennsylvania and Delaware the chief executive magistrate, styled ** governor'' or *' president" was elected on joint ballot of the two houses of the legislature. In New York, Vermont and Massachusetts he was elected by the freemen. In Pennsylvania he became elective in 1790. In New Hampshire he was at first chosen by the council, but the constitution of 1792 provided for his election by the people and he was required to be an inhabitant of the state, of £500 freehold, and of the Protestant religion. The freehold qualification was dispensed with in 1852 and the provision as to religion was stricken out in 1877. In Massachusetts there was a freehold qualification of £1000 ; and the governor was required to declare himself of the Christian religion. In Delaware he was ineligible after three years; in New York he was required to be a wise and discreet freeholder ; in North Carolina he was eligible three years out of six and must have a freehold of £1000; in Virginia he was eligible no longer than three years and was then not again eligible until the lapse of four. There was a freehold qualification for governor in Maryland and he was not to continue more than three years and then not again until after five. South Carolina fixed the governor's salary but at first any mention of salary in the state constitutions was rare. Provision for the succession of a lieutenant-governor, or vice-president, or president of Senate, or speaker of Assembly, was made; sometimes the emergency was absence from the chair, generally disability, frequently absence from the state as well. Liability to impeachment was assumed. In Delaware the president— ^that is, governor — ^was impeachable when he was '*out of oflSce and within eighteen months thereafter." Vermont, until 1850, when the function was transferred to the House of Representatives, had a council of censors who impeached. In New York, the court of impeachment was the president of the Senate, the senators, the chancellor and the judges of the Supreme Court or a majority of them, sitting for that purpose. The governor of Georgia was required to reside where the Assembly might appoint. South