GOVT 2302
The Executive –
Historical Background

The Executive Branch
A few basic facts might help before we discuss its historical development – which as you can guess hits many of the same points covered in the section on the legislature and will cover on the judiciary.

On the national level, Article Two of the Constitution establishes the executive branch.
Wikipedia

On the state level, Article Four of the Texas Constitution establishes a plural executive.

Terms for Chief Executives
National: President
State: Governor
Cities: Mayors , though some cities hire city managers to run their cities day to day.

Note: the term “president” was used for the national level rather than “governor” because “to preside” sounds more passive than
“to govern.” It sounded less powerful. Some argued that the term was not dignified enough.

Within the system of separated powers, the executive is the branch responsible for the implementation of the laws passed by the legislature.

This means that the executive possesses the “sword,” it has the means to enforce the law.
Recall that the legislature possesses the “purse.” That is the course of its strength.

In order to facilitate the execution of the laws, it is – at least on the national level - the autocratic branch. It is headed by a single person.
The singular form is intended to allow for “energy” in the executive, but can also allow for the arbitrary use of power.

It is singular because the executive power is vested in one person – the President. We will read through this in the next section.

The executive branch in Texas is designed to be “plural.” In addition to the Governor ( history ), five separate, distinct positions are created and made independent of the Governor.
Background from TSHA .

These include:
Lieutenant Governor
Comptroller of Public Accounts
Attorney General
Commissioner of the General Land
Office
Secretary of State

All of these positions are appointed by the President on the national level. This gives the president greater authority over national departments than the governor has over state departments.

Texas also has two independently elected boards:
Railroad Commission
State Board of Education

The plural form is intended to prevent a single individual from concentrating power.

This reflects the effort to restrict the autonomous power of each institution in Texas.

The singular form on the national level was intended to give to the national level the power lacking under the Articles of Confederation
– which had no executive authority if you recall.

Not everyone thought such power was necessary.

On the national level, the executive was considered by the Anti-
Federalists to be a potentially dangerous branch since it is given the power of Commander in Chief and also is in charge of the collection of taxes.

Not surprisingly, a central dispute throughout American history has been about how expansive the powers of the executive should be.
This is especially true in times of crisis or war.

The Texas Constitution creates a
“plural” executive. Multiple individuals are elected separately to head different executive offices autonomously.

The national chief executive is called “the President” and the office is elected together with a
“Vice-President” that serves as
President of the Senate.

The President is assisted by a variety of advisory bodies.
There are three general advisory institutions, each contains a number of offices with them.

White House Staff
Executive Office of the President
The Cabinet

White House Staff
These people work directly for the president and are responsible for organizing his activities.

Executive Office of the President
Developed in the late 1930s to assist the president in setting the policies to be implemented by the bureaucracy. ( history )

The Cabinet
Composed of the heads of the executive departments. Each department contains a large number of smaller agencies. They do the actual implementing of law.

The executive branch is unique since it is divided into two fundamentally different levels
One is political, the other is professional.

The Administration
The Bureaucracy

The presidential administration is composed of individuals who are affiliated with the president and base their positions on the results of elections.

The bureaucracy is composed of people who are hired to perform certain services.
Career civil servants.

During the 19 th century, the civil service was often politicized. The victor in presidential races saw the jobs available to him and his party as “spoils” to be handed out as they pleased.

Civil Service reform in the late 19 th
Century de-politicized the bureaucracy, made it more likely to be controlled by professionals, but has led to conflict between the civil servants, who hold their jobs for decades, and the presidential administrations who are in office for 4 or 8 years.

Given the number of agencies created over American history, the bureaucracy is vast. Click here for links that list the number of agencies that exist.
Links to the U.S. Executive
Link to the Texas Executive

Now for history

Let’s begin with a crucial transformative event; a turning point in Anglo – American history.
The Norman Invasion

King William ( William the
Conqueror ) led an invasion of
England that transformed decentralized feudal Anglo-Saxon
England into a centralized administrative state

Anglo Saxon rule was feudal and based on custom and arbitrary rule. There was no legislation as we would recognize it. Society was organized by norms and customs.

Rule was decentralized and local, which gave the barons discretion in how law was implemented. It also allowed for arbitrary rule and abuse.

Beginning with William, the power of the monarch increased over the nobility due to the establishment of an efficient administrative apparatus that bypassed the nobility and allowed the monarch to connect directly to the population.

Example: The Domesday Book
This was an early census which gave William information about the productive capability of the country. This would allow him to assess taxes when he needed revenue.

Early kings continued to expand the administrative capability of the state. This apparatus allowed the monarchs to intervened between the barons and the population. This weakened the power of the barons.

Henry I
1100 – 1135
Assumed law making power by passing the Charter of Liberties .
Also known as the Coronation
Charter. The Charter was intended to calm the worried nobility.

We discussed the Charter of
Liberties previously. It predated the
Magna Carta and became a rough template for it. Again – by passing the Charter, Henry demonstrated that he was law maker as well as executive. He judge as well.

Henry also created an early version of a tax collecting mechanism: The
Exchequer . It managed and collected revenue.

Henry II
1154 – 1189
Established a permanent bureaucracy with a degree of independence from the monarch

He is the monarch played by Peter
O’Toole in The Lion in Winter .
You can see the entire movie in You
Tube clips .

“Henry empowered a new social class of government clerks that stabilized procedure . . . would subsequently prove sufficiently tenacious to survive the reign of incompetent kings” – from
Britannia .

This may as well be considered the birth of the bureaucracy.
And notice that it is meant to provide stability in governance.

Judicial developments occurred at this time also. Common law established. It would replace feudal customs. Royal courts were established and jury trials developed.

John I
1199- 1216
As we already know, he was the king that was made to sign Magna
Carta . His claim to fame was his ability to upset everyone, thus leading the barons to organize against him.

As we know, this document led to the establishment of a legislative institution with oversight over the monarch.
Link to the Text .

Edward I
1272 – 1307
Further refined the administrative state by creating four distinct institutions. He was called
Longshanks , and was the villain in the Mel Gibson movie Braveheart.

Edward I added to the bureaucracy initiated by Henry II to increase his effectiveness as sovereign. He expanded the administration into four principal parts: the Chancery, the
Exchequer, the Household, and the Council. The Chancery researched and created legal documents while the Exchequer received and issued money, scrutinized the accounts of local officials, and kept financial records. These two departments operated within the king's authority but independently from his personal rule, prompting Edward to follow the practice of earlier kings in developing the Household, a mobile court of clerks and advisers that traveled with the king. The King's Council was the most vital segment of the four. It consisted of his principal ministers, trusted judges and clerks, a select group of magnates, and also followed the king. The Council dealt with matters of great importance to the realm and acted as a court for cases of national importance. – from britannia.com

The Chancery researched and created legal documents

The Exchequer received and issued money, scrutinized the accounts of local officials, and kept financial records

The Household a mobile court of clerks and advisers that traveled with the king

The Privy Council principal ministers, trusted judges and clerks, a select group of magnates, and also followed the king. The Council dealt with matters of great importance to the realm and acted as a court for cases of national importance

Henry VIII
1509 – 1547
The power of the monarch expanded when the monarch also became the Supreme Head of the
Church of England.

By replacing the Catholic Church with the Church of England, Henry ensured that the crown would have its own source of funds.

Loyalty to the king became especially important given ongoing hostility with the Catholic Church.
To be Catholic was to be considered a potential enemy of the monarch and traitor to
England.

England moved into an era of
"conformity of mind" with the new royal supremacy (much akin to the absolutism of France's Louis XIV): by 1536, all ecclesiastical and government officials were required to publicly approve of the break with Rome and take an oath of loyalty – Britannia.com

Elizabeth I
1558 - 1603
Perhaps the apex of monarchic power, but she had no heir so power was passed to the
House of Stuarts upon her death.

Then as we know, conflict with
Parliament increased, leading to rebellion and ultimately the establishment of a constitutional monarchy.

The Stuarts
James I (1603 – 1625)
Charles I (1625 – 1649)
The Commonwealth (1649 – 1660)
Charles II (1660 – 1685)
James II (1685 – 1689)

James the First
As we know, he was a proponent of the divine right of the monarch. He was also called “the wisest fool in
Christendom.”

Developed a theory of divine right
The True Law of Free Monarchies

“ . . . the king owns his realm as a feudal lord owns his fief, because kings arose ‘before any estates or ranks of men, before any parliaments were holden, or laws made, and by them was the land distributed, which at first was wholly theirs. And so it follows of necessity that kings were the authors and makers of the laws, and not the laws of the kings.’”

He advised against holding
Parliaments except when necessary to gain revenue.
Ruled without Parliament from
1614 – 1621.

His rule was marked with a conflict regarding the monarchy’s relationship with Parliament.
James saw Parliament as inferior to him, while Parliament saw them as being equals.

As with the rest of the Stuarts, he flirted with Catholicism which further angered the protestant
Parliament and led them to believe that he intended to establish an absolute monarchy.

Charles I
1625 – 1649
Believed that the Royal Prerogative was divinely ordained and levied taxes without the consent of
Parliament.

Presented with the Petition of
Right as a reminder of the ancient rights and liberties monarchs had granted.

1628: The Petition of Right
Written to remind Charles of certain ancient liberties:
- taxes cannot be levied without consent of Parliament.
- martial law cannot be imposed in times of peace
- the writ of habeas corpus must be honored
- soldiers cannot billeted unless authorized by Parliament.

Ruled without Parliament from
1629 – 1640. The period of
Personal Rule .
Parliament was dissolved in order to keep it from impeaching one of
Charles’ advisors.

January 4, 1642
Charles enters Parliament to arrest five members who were prepared to impeach some of the king’s advisors and who had introduced legislation to remover the army from the king’s control.
Trivia: Isaac Newton was born that day.

This explains why members of
Congress are privileged from arrest when in session.

The English Civil Wars begin around that time. It was a war between the monarchy and
Parliament that ended with the execution of Charles on charges of high treason.

When urged to enter a plea at his trial, he stated his objection to doing so with the words: "I would know by what power I am called hither, by what lawful authority...?"

The opposition held that: the King of England was not a person, but an office whose every occupant was entrusted with a limited power to govern ‘by and according to the laws of the land and not otherwise’

The execution of Charles, and the final defeat of the forces of the monarchy in the Battle of
Worcester , was followed by the
Commonwealth .

Charles was followed by the brief rule of Oliver Cromwell.
Question: during this time was
Britain a Republican
Commonwealth or
A Military Dictatorship?

Cromwell, through his army, disbanded the rest of government, including Parliament. He would eventually call himself Lord
Protector and possessed monarchic power himself until his removal from office.

Question: By eliminating the monarch, did the legislature remove a check on its own power?
Is a monarch necessary to restrain
Parliament? To keep the peace?

A proper balance had to be struck between executive and legislative power.

The Monarchy was reestablished in
1660, but the new Stuarts repeated the same mistakes as the old. The last of the Stuarts, James
II, would be removed from office in the Glorious Revolution and would be replaced with William and
Mary.

Oak Apple Day is celebrated (by some) in Britain to acknowledge the restoration of the Monarchy.

By signing the British Bill of Rights , they recognized officially certain limits on their power.

The Kings could not:
- establish their own courts
- interfere with Parliament
- rule by prerogative
- rule over a peacetime army
- levy taxes without consent of
Parliament.

Britain transformed into a
Constitutional Monarchy

The monarchy is replaced with a constitutional system which achieves a balance between legislative and executive power.
The relationship of each with the judiciary will be discussed later.

While conflict raged in Britain, colonial governors – appointed by the crown - ruled the colonies.

For more information about colonial governors click here .

They served as agents of the British monarch.
Their precise roles varied depending on the type of charter each colony was established under.

Corporate
Proprietary
Royal

Early monarchs were seen as mediators who could resolve disputes between the colonies.
By the mid 18 th Century Britain attempted to usurp control of the colonies.

The colonies refused to establish executive authority over the colonies on their own.
Rejected the Albany Plan.

As a result of the victory in the
French and Indian Wars, Britain gained new possessions west of the Appalachian Mountains and sent British officials to control them.

George III imposed executive authority to solve security and commercial problems
As with the Stuarts, his arrogance, refusal to seek consent, zealous imposition of taxes and use of military force led to resistance and revolution

A handful of the grievances listed in the Declaration of Independence concerned the Kings attempt to usurp colonial executive power.
Many of these focus on his control of the military

- “he has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.”
- “he has kept among us, in times of peace, standing armies, without the consent of our legislatures.”

- “he has effected to render the military independent of, and superior to, the civil power.”
- “for quartering large bodies of armed troops among us.”

- “for protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.”

- “he is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.”

The colonial experience with central power under a monarch led to the establishment of a constitutional system with no national executive

The Articles of Confederation

Executive power rested with each of the separate states.
The inability of the national government to implement legislation led to the call for a constitutional convention.

The Constitutional Convention
Presiding officer:
George Washington

Notice that he is a presiding officer
– a president not a governor.

In order to ensure that the endeavor would be supported, or at least a level of trust would exist for the effort, it became vital for
Washington to attend.
He would eventually preside over the convention.

He already had earned a degree of trust by not using his position as general of the revolutionary army as a means of becoming a monarch himself.

He was compared to the Roman
General Cincinnatus

After given near absolute power in order to address a threat, he gave it up.
This was taken as a necessary characteristic of the proper executive official.

Washington became the model for the singular executive in the
Constitution.

The experience of Texas under the constitution of 1869 was different.
The Constitution established considerable power for the national government, powers which were expanded by the discretion of E.J. Davis .

One could argued that the expanded power of the United
States executive was due to the trust American had with
Washington and the limits on the
Texas Executive was due to the distrust Texans had with Davis.