The Modern Doctrine of Executive Power

Author(s): HARVEY C. MANSFIELD, JR.

Source: Presidential Studies Quarterly , SPRING 1987, Vol. 17, No. 2, Bicentennial Issue:
The Origins and Invention of the American Presidency (SPRING 1987), pp. 237-252
Published by: Wiley on behalf of the Center for the Study of the Presidency and
Congress

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The Modern Doctrine of Executive Power

HARVEY C. MANSFIELD, JR.

Professor of Government
Harvard University

Abstract
When executive power is understood in its essential ambivalence between the weak,
formal executive of theory and the strong, informal executive in practice, a quick history of
the doctrine necessary to establish this ambivalence can be constructed: from Aristotle, who
deliberately ignored the executive, to Machiavelli, who conceived it, to Locke, who constitution-
alized it, to Montesquieu, who made it less terrible and enabled a free government to govern
without frightening its citizens.

My purpose is to survey the doctrine of executive power to the time of the framing
of the American Constitution, and in this limited space, to dwell on four major figures
in the development ofthat doctrine- Aristotle, Machiavelli, Locke and Montesquieu.
As I shall argue that the doctrine of executive power is a modern invention, it will
be necessary to consider its alternative, or its pre-history, in the thought of Aristotle.
After that, I shall try to show what doctrine or theory of executive power was avail-
able to the American founders.

1. The Ambivalence of the Executive1

The "executive" has two meanings in politics as used today. One is the
dictionary definition, he who "carries out," as in the U.S. Constitution the president
is given the duty to "take care that the laws be faithfully executed" (Art. II, sect.
3). In this primary meaning the president would serve merely to carry out the wil
of others, that is, of the legislature; and if any actual president confined himself to
this, he would be referred to contemptuously as an "errand boy." He would be nothing
in himself- a mere agent whose duty is to command actions according to the law.
Yet it would be unwise for any legislature to speak openly of its executive as
an errand boy. To do so might diminish his utility by hurting his pride. Executive
pride transcends the primary dictionary definition of "executive"; it is expressed in
the phrase "law enforcement," in which it is clear that carrying out the law does not
come about as a matter of course. "Law enforcement" implies a recalcitrance to law
in the human beings who are subject to it, making necessary a claim by the executive
to some of the authority and majesty of the law itself.
Perhaps the authority of law is more evident in "law enforcement" than its maj-
esty. Whereas the end of law as stated or implied in the law is a noble thought which
we respect, to which we are dedicated, and for which government would execute

237

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238 I PRESIDENTIAL STUDIES QUARTERLY

the law in the primary, instrumental sense, execution as law enforcement puts us in
fear and thus reminds us of the reason why laws are made: to dispel fear and provide
security. It makes use of punitive actions, sometimes done so impressively as to sug-
gest that the purpose of law is to punish. This execution also allows or even requires
the executive to gather in his person the power which enabled the first lawgiver to
awe his unsettled subjects, and to exude the fearfulness of a being who makes and
executes his own law, as if he were an angry god. It would not be too much to say
that executive pride smacks of tyranny, so radically does it enlarge upon the instrumental
executive.

Thus, in recognition of executive pride, we find in the Constitution that taking

care to execute the laws faithfully is only one of the duties imposed on the president,
for the performance of which he is given several enumerated powers. Among these
are powers neither executive in nature (the veto of legislation) nor subordinate
(commander-in-chief of the army and navy). Moreover, he is vested with "the execu-
tive power," which according to Hamilton's famous argument,2 has a nature of its
own that is not exhausted by the enumerated powers; and he takes an oath not to
faithfully execute the laws but to faithfully execute his office.
I propose now to give an outline of the history of the doctrine of executive power
which will account for the ambivalence we see in its nature and in the American Con-
stitution.

2. Aristotle: The Executive as Kingship3

Aristotle's Politics is a comprehensive book, both the foundation and the
most imposing edifice of pre-modern political science. But in seeking a discussion
of executive power we do not find one where we would expect it, among the three
"parts" of regimes, and though we do find it later, it is disappointingly short
and vapid to our taste. An analysis of these two passages in Books IV and VI
(1297b35-1301al5; 1321b2-1323all) will lead back to the discussion of kingship in
Book III (1284b35-1288b7), which takes the place of executive power in Aristotle's
intention.
Aristotle says that all regimes have three parts concerning which the serious legis-
lator must consider what is beneficial for each. These are the deliberative part, the
magistracies, and the judicial part. They resemble our legislative, executive and judi-
cial powers, but the difference quickly becomes apparent. The deliberative is said to
be sovereign about three sets of things: first, war and peace, and alliances and dissolu-
tions; second, the laws; third, death, exile and confiscation, and the audits. While
in the modern scheme legislation is paramount, and executive and judicial are subor-
dinate because they presuppose legislation, for Aristotle the laws are only one concern
of the deliberative part. They are the central concern, as one can see from his listing,
but they are surrounded by topics of deliberation which reveal the limited power of
human legislation to fend off war, to choose one's partners, to prevent disobedience,
and to change what is past.
Whereas the modern scheme, in assuming the supremacy of the legislature, as-
sumes the power and self-sufficiency of the human good which is the object of

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 239

legislation, Aristotle finds it necessary to consider the relation between the human
good and the world around men or "nature," and to concede that the integrity of
the human good is questionable. His discussion of the three parts of regimes occurs
in the context of the mixed regime, and in the argument just preceding, he has indi-
cated how the political scientist might give a better mix to a regime by improving
the military technology available to it. For example, the discovery of infantry tactics
capable of defeating cavalry makes possible a democratized polity (1297bl9-23). But
with such help the political scientist merely chooses a better regime according to the
standard of survivability in a range of choices determined by chance. Is this the best
he can do and the best that men can hope for?
The discussion we are considering is intended to offer more, for the parts or
functions of regimes are distinguished for the purpose of finding the best combination
of qualities, a regime essentially different from those determined by chance which
are corrected by exchanging one lopsided proposition for another or by splitting the
difference between extremes. The "serious legislator," the one who takes seriously the
problem of the capability of human legislation, must deliberate "about common things,"
that is, intelligible things as opposed to chance events. He must open himself to many
possibilities, and the mathematical, combinatory character of the discussion of func-
tions is meant to train him in looking for possibilities that are not actual and to correct
the complacency of making do with what chance supplies. In the Ethics Aristotle says
that we do not deliberate about things we cannot affect or attain, as for example the
Spartans do not deliberate about the best regime for the Scythians (NE 1112a23-5).
This neglect may have been a fault in the Spartans, however, since it means that they
did not deliberate about the best regime for themselves. To deliberate it is necessary
to know the extent of our power: whether we are bounded by an intelligible order
in nature within which we may or may not deliberate or be free to deliberate as we
will. This question, rather than a purely political intention, determines the character
of Aristotle's discussion of the "separation of powers."
Now in considering the "common things" about which men deliberate, Aristotle
asks whether all may "judge" them, on the one hand, or one or several, on the other;
he asks who should have access to the magistracies or offices (archai) and distinguishes
democratic from oligarchic deliberation (1298a8). Indeed his discussion of the deliber-
ative part is confined to the law regarding offices and the issue between democracy
and oligarchy. But in deciding who should have access to the offices of deliberation,
one must consider whether some men are better qualified than others. If they are,
the quality that distinguishes them from other men would also distinguish men from
the rest of nature, the quality of prudence. Thus an oligarchical view of politics im-
plies an "oligarchical" view of nature in which the human good is distinct from and
superior to the rest of nature, while democracy in politics implies that nature is a
"democracy" in which men are nothing special. After "distinguishing" deliberation
in this way according to regimes (1298bl2), Aristotle suggests how the half-truth
in each view might be improved. Democracy might be improved by common delibera-
tion between the people and the notables or by mixing "those skilled in the people"
(demotikoi), i.e., the philosophers who study nature without distinguishing human

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240 I PRESIDENTIAL STUDIES QUARTERLY

things from the rest of nature, with "political men" (politikoi) who strive for office
and so "oligarchically" presuppose that they and hence men are distinctively qualified.
Oligarchy might be improved by a preliminary council (prohoutë) which would submit
its deliberation to the people for confirmation; such a council would represent a predispo-
sition in favor of the human good over the rest of nature, rather than an ignorant
and arrogant assertion of human distinctiveness. In either case the serious legislator
establishes political offices (archai) that take account of the need to mix oligarchy and
democracy, and thus to find foundations or beginnings or ruling principles (archai)
in both the human good and non-human nature.
What are these offices, the second part of regimes? Now we expect to hear of
the executive power of carrying deliberation into effect, but instead Aristotle says that
magistrates have been assigned the duties of deliberating about certain things (no longer
"common things"), of judging and of ordering (epitaxai), especially the latter, for or-
dering is "more ruling" (archikoteron). Ordering, not executing, is the distinctive func-
tion of offices, which otherwise require both deliberating and judging, that is, both
the first and the third functions. Aristotle gives us to understand that ordering through
political offices is the way to secure the distinction between deliberating and judging.
Deliberating is for the sake of an action within our power toward an end of our choice,
and thus implies a realm of choice for humans in which human ends may be sought;
judging regards what has been done, and implies a standard, an "according to what,"
which is for the sake of human guidance and yet beyond human tampering.4
To secure the distinction between deliberating and judging, then, is to establish
and define the human good men can legislate, as distinct from but related to the rest
of nature men cannot legislate. It is also to recognize that every regime has an oligar-
chical function (deliberating) and a democratic function (judging) that must be brought
together for the common benefit without losing their separate identities. They are
brought together by being ordered; in this section Aristotle discusses not the orders
given out by officials, which might be executive decrees or administrative regulations,
but the ordering of officials in relation to each other. He raises the difficulty of or-
dering offices in small cities. In large cities it is possible for one office to serve one
function, but in small cities requiring the same offices and laws as the large, it is neces-
sary to combine several functions in one office. If we carry this thought as far as it
will go, we see that the small city could be the soul of one man in which all the
offices would be ordered, and we realize that Aristotle's discussion of "the separation
of powers" is actually a consideration of the rational part of the soul. For the soul,
like the offices in a regime, orders by ordering itself, and is thereby a beginning prin-
ciple (arche) that is human. Ordering makes possible human government by constituting
a human beginning, as opposed to the "democratic" insistence on beginning with
the equality of all nature, and also by referring that human beginning to nature, as
opposed to the "oligarchic" assertion of human sovereignty. Moderate politics is grounded
in both self-respect and an awareness of human limitations, and both can be found
in the soul.
Thus Aristotle does not adopt Plato's procedure in the Republic of moving from
soul to city to forms; he does not attempt to transcend the soul. When treating the

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 241

third part of the regime, the judiciary, he makes no reference to law, according to
which men judge; rather he dwells on the courts and their forms (eidë). Courts, like
other offices, are composed of men who may judge according to private prejudices
(as if all opinions were equal), but the fact that men are taken out of the many and
given office in a specific multitude constituted by a distinct form gives some protec-
tion from such tyrannizing.5 At the same time, the fact that the courts are so com-
posed of partisans, by lot as well as by choice, prevents men from judging with in-
human disregard for human frailties. Judging must be kept distinct from deliberating
for the double reason that men can deliberate freely with an end in view rather than
with constant reference to an outside standard and to others looking over their shoulders,
and that men can call their deliberators and deliberations to account. Aristotle makes
this distinction without making the distinction to which we are accustomed between
the legislative power and the executive, and without establishing the executive as part
of the regime. When he does come to the executive in Book VI, his treatment is
unenthusiastic and deprecating.
In Book VI Aristotle offers a list of offices or magistracies following a discussion
of political virtue in democracies and oligarchies (1321b4). Accordingly he distinguishes
the necessary offices requiring democratic virtue from offices whose objects are good
order and ornament, requiring oligarchic virtue. On the list of necessary offices, the
sixth, "almost the most necessary and the most difficult of the offices," is that "re-
garding deeds against the condemned and defaulters according to the lists and regarding
the keeping of prisoners." The office is difficult because it involves much odium (apex-
theia), but it is necessary because there is no use in judgments of justice if they are
not "exacted to their end" (lambanein telos, 1327a7). This may be taken as Aristotle's
expression for "execution." But although the office is admittedly important, Aristotle
does not develop the notion of the executive; on the contrary, he counsels that it
be separated from the courts and that it be plural in number in order to divide and
dissipate the odium of it. Thus the greatness of the modern executive branch is re-
duced to the disreputable if honest duties of jailors and hangmen.
Aristotle's intent is clearly to prevent the executive function from attracting at-
tention and to make government less punitive in aspect and deed. He separates the
executive from the judiciary not to secure individual freedom but to promote the dig-
nity of the judiciary, which arises from the dignity of judging (1328bl3-23). In passing
judgment on other men, men call themselves to account by a standard they make,
the law, according to the world or nature as they understand it. Nature understood
as unfriendly to men gives human justice no support, and compels human govern-
ment to imitate angry gods, to rely on fear as the motive for obedience, and to loose
hatred against its enemies. This was Machiavelli's way but not Aristotle's. Aristotle
asserted or discovered an understanding of nature favorable to human ends and the
human good. His political science recognizes the need for execution, hence the in-
evitability of hatred, but he sought to minimize it and to have government apply
its contrary, grace (chads) , to human life.
In Book III, the most fundamental book of Politics, Aristotle culminates his dis-
cussion of the regime with a defense of kingship, the wise man or political philoso-

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242 I PRESIDENTIAL STUDIES QUARTERLY

pher who understands how the human good can be according to nature, and how
nature is graced with intelligent beings. This defense of the noble contribution of
"one" to the common benefit (which would require a long analysis) is not a defense
of the executive, but can be said to take the place of the executive in Aristotle's political
science. In the course of it he raises the question whether it is more choiceworthy
for the best law or the best man to rule, and says that it is impossible to legislate
things about which men deliberate. But again, instead of developing the distinction
between legislating and deliberating to construct an executive, he allows the function
of deliberating on what cannot be legislated to be represented in two other ways -
either as judging in accordance with the law or as ruling by the king in place of the
law, but according to nature. The latter is expressly distinguished from tyranny, for
"the tyrannical skill is not according to nature" (1287b23-4, 40).

3. Machiavelli: The Modern Executive

Machiavelli does not say that the tyrannical skill is not according to na-
ture,6 and he does seem to be the first to make a theme of "execution." We ente
Machiavelli's thought on the executive through his famous pronouncement in favo
of realism in the fifteenth chapter of The Prince. "Many have imagined for themselves,
he says, "republics and principalities that have never been seen or known to exist
but there is such a difference between how men live and how they ought to live th
he who abandons what is done for what ought to be done learns his own ruin rath
than his preservation." Therefore a prince, to hold his state, must learn the capaci
of being "not good" and understand when to use it, and when not, according to necessity
As one explores the meaning of this pronouncement in Machiavelli's writings
one discovers that learning the capacity of being not good means learning how t
punish, and to punish in such a way that men look to the prince as the origin of
benefits to them. This result cannot be achieved by treating men according to the
deserts, whether their deserts are great honors for ambitious men or security for one-
self, for one's wife and children, and for one's property in unambitious men. Thinking
themselves entitled to their deserts, men never thank you for providing them, or never
thank you enough. (I adopt Machiavelli's familiar mode of address.) They will not
help defend you against the undeserving, who are entitled to punishment but wou
never admit it. The cool gratitude of the deserving never equals the warm resentme
of the undeserving; so the prince must find some way of warming that cool gratitude.
This he can do by the threat of punishment, even to the undeserving or precisel
to them: so that they become duly thankful when they receive their just reward
Government must be essentially punitive, which does not mean always punitive. It mean
being occasionally punitive even to the best men in order that all benefits are regarded
as relief from punishment.
How should government punish, then? It should punish by a "memorable execu
tion." Machiavelli gives the example of Junius Brutus, who having overthrown t
Tarquín kings and founded the Roman republic, was soon troubled by sons of his
who expected special favors. Brutus killed them. Machiavelli says solemnly: "It is
rare example in all memories of things to see the father sit on the tribunal and no

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 243

merely condemn his sons to death but be present at their deaths."7 So an execution-
and this is our word, esecuzione- is memorable by being unexpected and abrupt, like
a sacrifice of one's own sons, or if this is too exciting, the killing of someone else's
sons, Brutus' sons. For Machiavelli goes on to say that after a change of government,
it is necessary that "the enemies of the present conditions" suffer "a memorable execu-
tion": "And whoever seizes a tyranny and does not kill Brutus, and whoever makes
a state free and does not kill Brutus' sons, maintains himself a short time."
States are established with a memorable execution. This memorable execution
had the consequences, which were not accidental, or should not have been, first, of
turning possible popular resentment at Brutus for his sons' behavior against those
sons, and second, of filling the people with awe for Brutus himself, as being capable
of such an act. Machiavelli does not detain himself with the question whether Brutus'
sons deserved such punishment; the execution must be done, or you maintain your
power but a short time. For if this is how states are established, it is also how they
are maintained. Every state becomes corrupt in time, as men grow careless and com-
placent, unmindful of the present benefits of government and restless for new honors.
Every state, therefore, must be renewed by being recalled back toward its beginning,
when government was fresh and fearful.
Yet if these renewals are regular and expected, they will not take effect. They
must be sudden, and to be sudden they must be conspiratorial. Machiavelli praises
Brutus not only for his memorable execution but also for playing the fool or simulating
stupidity, and his discussion of Brutus serves as introduction to the chapter "on con-
spiracies" in his Discourses on Livy, by far the longest chapter in that work (III 6).
A conspiracy comes to light, and so becomes memorable, when it is executed; and
the execution of a conspiracy means the execution of the object of the conspiracy.
In a conspiracy the ordinary meaning of "execute" is united with the sinister meaning:
carrying out and punishing capitally. Machiavelli unites those meanings several times
in his chapter on conspiracies. His use of "execute" occurs in conjunction with con-
spiracy or (since conspiracy strictly requires more than one conspirator) as the conclu-
sion of a secret intention. Under his guidance we almost lose sight of the connection
between execution and the law.
Machiavelli tells us that conspiracies can be executed by the government against
the people, as well as by the people against the government. Because government
is essentially punitive, its deliberations must be essentially conspiratorial. You cannot
punish memorably unless you punish shockingly and hence plan secretly. As in a con-
spiratorial plot, the policy is inseparable from its execution; the policy issues in its
execution. One cannot abstract the policy from its sudden revelation in execution,
and have its merits discussed in public, for then it would not be the same policy. Virtue
must know how to shock the conscience and make it fearful. Good men of conscience
have their place in the economy of things, but being good, they think goodness is
enough. They suppose they do not need "bad" men, ambitious men or princes. A
memorable execution reminds them of their weakness by making public a fearful thing.
It makes them feel that necessity must rule morality, for goodness, when deprived
of the pressure of necessity, becomes complacent and corrupt. At the same time, such

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244 I PRESIDENTIAL STUDIES QUARTERLY

an execution satisfies the morality of good men by offering a scapegoat; good men
can take out their hatred of ambitious men, of virtuous princes, against one such
man. In so doing, they in effect choose an agent against the scapegoat, for example
Junius Brutus against his sons. Thus the execution leads to the choice or election
(elezione) of one man as agent of the people in a process that disturbingly resembles
our elections, but without their regularity.
Clearly Machiavelli's understanding of government tends to break down the dis-
tinction between domestic and foreign policy. Since the government or the prince
must conspire against his own people, he treats them as if they were an enemy.
Machiavelli's formulation of prudence in politics is to rely on one's own arms. This
cannot be taken too strictly, because of course one must associate with other men
to accomplish anything in politics, and to associate, one needs a relation of trust.
Machiavelli is not opposed to trust, but he believes that the purpose of trust is to
build up a relation to the point where it becomes profitable to betray it. Relying on
one's own arms means carrying on domestic politics as if it were foreign politics, using
"coalitions" that are like alliances (as political scientists today call them), and thus
managing peace with a view to the necessities of war.
In short, I find seven elements of the modern executive that are items of Machiavelli's
thought. First, there is the central importance of punishment, of sanctions, of en-
forcement; second, the primacy of war and foreign affairs; third, government is in-
direct: the ruler acts for, and is elected by, someone else in his executions, that is,
the people; so the ruler appears as agent; fourth, execution is necessary to all govern-
ments, whether republics or principalities, and so important that it overrides differ-
ences among regimes; fifth, execution is sudden, decisive, "energetic" (to use Hamilton's
expression in Federalist 70), extraordinary, and extralegal; sixth, the executive is one
man, the prince. He can be a prince in a principality or a prince in a republic, but
he is a prince in either situation. He must be one man so that he can have the glory
of success or receive the blame of failure. Seventh is the necessity of secrecy. The modern
executive is very concerned for the secrecy of his counsels, and demands "executive
privilege" to protect it. When even a congressional committee acts in secret, it acts
in "executive session."

4. Locke: The Executive Power

Nonetheless, despite the similarities between the modern executive and
Machiavellian prince, there is good reason for the general neglect of Machiav
founder of the executive. It was John Locke who first conceived the executive
modern form as "the executive power." Surveying his contribution, one could sa
he made two changes in the Machiavellian executive which made it more accep
while preserving the seven elements mentioned.
On the one hand, Locke offered a doctrine of the separation of powers, in
the executive appears as one power. Political power, for Locke, is composed of p
(plural) in civil society, so that political power and its powers depend on the d
tion between the state of nature and civil society. In Locke's thought this disti
is used to give right or legitimacy to the powers of government in civil society

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 245

thus transforms Machiavelli^ notion of execution into a doctrine of right. One is no

longer forced to witness the rampant illegality and the obvious relish in the sensa-
tional crime which cast a pall of suspicion over the moral rectitude of the Machiavel-
lian prince. Although Locke's executive is no angel, he is equipped with a doctrine
and professes a trustworthy good faith.
On the other hand, "executive power" in Locke's Second Treatise is a thinly-veiled
description of an institution in an actual regime, the English constitutional monarchy.
Locke's executive is the English king, that is, the English king as he ought to be "in
all moderated Monarchies and well-framed Governments" (Two Treatises of Government,
II 159). In this way Locke assimilates the English tradition of constitutional law to
his political philosophy, and makes possible an appeal to the authority of previous
writers. His theory could use the knowledge of statesmen and especially of lawyers,
and they in turn could become purveyors and defenders of his doctrine. Locke effected
a synthesis of political philosophy and constitutional doctrine, and within the latter,
a synthesis of royal and commonwealth notions; for he accepted both the actual royal
monarchy and the commonwealth doctrine of the supremacy of the legislature. Vile
and Gwyn have traced the distinction of legislative and executive powers to the time
of the English civil war antedating Locke, particularly to republican dissatisfaction
with Cromwell and the Long Parliament.8 But for the most part that distinction was
drawn in order to weaken the King or Protector by demoting him to "executive"
in the condition of subordinate. When a reconciliation of the parties was attempted,
it was done through the traditional doctrine of the mixed regime and did not resolve
the question of sovereignty as successfully as did Locke.
With Locke, "executive power," was based on, or referred to, the English king,
just as today it refers to the American presidency. For present-day discussion of "the
executive" is actually focussed on a particular office; it is almost always less theoretical
than it seems and more informal than it knows. Aristotle's notion of kingship proceeded
from actual regimes but was discussed as the cause of unity in the best regime.
Machiavelli's political science was presented in the workings of an actual regime, the
Roman republic, which was not, however, a living regime. Locke gave modern polit-
ical science the basis or reference of an actual, living regime, England; and in this
he was followed by Montesquieu and a host of constitutional writers in the Eigh-
teenth Century. The Federalist and Tocqueville attempted to change the basis from
England to America, with some success.
Thus in Locke's thought the executive receives a basis both in right and in prac-
tice. To see how, we begin almost with Locke's beginning in the Second Treatise. Locke
supposes men free and equal in the state of nature. (§4), which is men living together
according to reason without a common power. "According to reason" is according
to the law of nature, which says that man has a duty to preserve the rest of mankind,
as much as he can. What makes this law of nature effectual (or supports its operation)
is not a natural inclination in men to be sociable with other men but an "executive
power" of every man to carry out the law of nature in the state of nature. This execu-
tive power gives him both the right of self-defense and the duty of punishing offenses
against the law of nature. Given the lack of a natural inclination to support the law

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246 I PRESIDENTIAL STUDIES QUARTERLY

of nature, men must have a sanction, and Locke must put the emphasis on punish-
ment. He admits or asserts that this is a "very strange doctrine'- a law that every
man executes and by which every man becomes judge in his own case. Natural execu-
tive power includes, or is, the judicial power. Every man is by nature his own judge
and executive or executioner, because in the state of nature all men are equal and no
one has political power over anyone else, political power being a common power.
Executive power generates political power, however. The natural power which
men have by right to protect other men is used to generate power which can make
that protection operative. For every man's being judge and executive in his own case
leads to great inconveniences. But as soon as political power exists, it is divided into
legislative and executive power for the making of known, settled, standing rules in
legislation and for punishing, which is the power of war and peace (Two Treatises,
II 88). Since the legislative power makes standing rules, Locke immediately draws
the conclusion that neither absolute monarchy nor the absolute prince is a form of
government. No single person, that is, can have both the legislative and executive
power; or, one cannot have both natural power and political power.
Thus the natural executive power of every man in the state of nature can exist
in no man in civil society. The natural executive from which legislative power has
been subtracted becomes the civil executive. And to enforce the division of executive
and legislative power in civil society, the legislative, Locke says, must be placed in
collective bodies of men (Two Treatises, II 94). The civil executive remains one man,
reflecting the original essence of executive power in the state of nature, but lacking
legislative power (though not altogether, as we shall see). Locke rejects the Machiavel-
lian prince and the Hobbesian sovereign. Machiavelli did not distinguish the state of
nature from civil society, and Hobbes did, but not correctly. Hobbes thought that
the natural power of every man remains in the hands of the civil sovereign, who may
be one man. Locke has it that natural power is divided when it becomes political,
and thereupon no longer exists.
Executive power is the natural power, and is replaced by the supremacy of legisla-
tive power in civilization. By asserting the supremacy of the legislative power, suc-
ceeding the supreme executive power in the state of nature, Locke established the weak,
theoretical executive conformable to the anti-monarchical animus in his day and char-
acteristic of constitutional formalism in ours. In civil society, where the legislative
power is supreme, the executive as such would be subordinate. It executes not the
law of nature, but laws made by the legislative power. Yet from this point on in the
Second Treatise, the weak, theoretical executive is built up to the powerful practical
or informal executive.
The legislative power is supreme, but it is in a collective body. In "well-ordered
commonwealths" it will be put into the hands of "divers persons" who assemble and
then separate, so that they themselves become subject to the laws (S143). But a "per-
petual execution" is necessary to the laws, and because the executive is always in being
and the legislative is not, "the legislative and executive power come often to be sepa-
rated" (§144). Not with a fanfare of asserted principle, but out of practical experience

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 247

to which Locke gives his approval only at third mention (S153, 159), does he advance
the separation of powers. Then he defines the federative power having to do with
foreign affairs (S147), which cannot be managed by settled, standing laws; and he
says (S148) that though the executive and federative powers are distinct, yet they can
hardly be placed in distinct persons. Both require the force of the society for their
exercise, and that force can hardly be placed under different commands. Here is an-
other indication that the separation of power does not imply a diminution of power.
Next (S151) Locke, while continuing to speak of the supremacy of the legisla-
tive power, uses the phrase "Supream Executor". The executive power should not be
visibly subordinate and accountable to the legislature (S152), and to prevent this, the
executive must be given a share in the legislative power which proves to be the veto.
This point is introduced as if it were conceded to the actual English monarchy, but
it also reminds us of the natural executive power. Executive power is subordinate, but
the executive person is not. Then we learn that the legislative body which assembles
and disperses is representative. Locke gives no considerable justification for representa-
tion, as does Hobbes, but he awards to the executive the power of convoking that
assembly, and also of correcting its representation, should it become obsolete or cor-
rupt. Locke's reconstruction of the executive is completed in chapter 14, "Of Preroga-
tive," defined as doing public good without a rule, not only between the laws but
against them if necessary. This power, later called "arbitrary" (S210), is said to have
been "always largest in the hands of our wisest and best princes" (S165) or "God-like
princes" (S166); and with this blatant appeal to Tory sentiment,9 Locke hands it over
to the executive.
Executive power in its prerogative gives effect to the "fundamental law of nature
and government, viz. that, as much as may be, all the members of the society are
to be preserved" (S159). Even the guilty are to be spared, Locke specifies, if there is
no harm to the innocent. Thus he derives the power of pardoning, an important fea-
ture of the modern executive also traceable to Machiavelli.10 Political power has as
its end "the preservation of the whole" (S171), that is, the whole society. Natural
power aims at a broader end, the preservation of all mankind, but it is ineffectual.
Political power confines itself to the preservation of one society, and it consists partly
in making laws for this society (S3). But the end is the preservation of men, not of
the laws, and to this end the executive must be very powerful, if necessary against
the laws or the legislature.
In Locke we have the supremacy of the legislative power, but also the supreme
executive: the theoretical sovereign and the practical sovereign. There must always
be a sovereign, but to use a Machiavellian distinction, there is an ordinary sovereign,
the legislature which makes standing rules, and an extraordinary sovereign, the execu-
tive who stands perpetually ready to go beyond or against the rules. Locke's commer-
cial, technological society makes possible a great increase in human power; this power
is controlled by the theory of separated powers. Locke could not dispense with the
theory because it is needed for legislative supremacy, the ordinary sovereignty of laws;
and yet the theory is never adequate, because society cannot dispense with the natural
executive power, which is the origin of the informal, practical executive.

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248 I PRESIDENTIAL STUDIES QUARTERLY

5. Montesquieu: The Executive and the Judiciary

My remarks on Montesquieu will center on Book XI, chapter 6 in The
Spirit of the Laws, the famous chapter entitled "Of the Constitution of England." Here
Montesquieu discusses the separation of powers in the form in which we now enjoy
it: legislative, executive and judicial. The problem, then, will be to understand what
the creation of the concept of judicial power does to the doctrine of executive power;
for Locke had identified judicial power with the executive. In Britain judges had held
tenure during good behavior (rather than at the royal pleasure) since the Act of Settle-
ment in 1701; so there was basis in practice for Montesquieu's departure from Locke.
But Montesquieu made an argument not deriving from British practice, offering an
improvement on Locke's doctrine, which was successfully received in America.
Although this chapter is based on England, as we know both from its title and
from unmistakable allusions, it does not name any English institutions, and it is repeatedly
phrased in the conditional tense. Montesquieu says in the preceding chapter (XI.5)
that while every state has the general object of maintaining itself, it also has its own
particular object; and one nation in the world has political liberty as the direct object
of its constitution. Now since political liberty helps maintain a state, the particular
object of England's constitution is of interest to every state. If the principles of that
constitution are examined and found good, liberty will appear in it as a mirror (in
reverse image?). Even though "political liberty is found only in moderate govern-
ments" (XI.4), England has in the description of XI.6 an "extreme political liberty"
which might "mortify" those who have only a moderate liberty. Montesquieu denies
any intention to disparage other governments; he does not claim to decide whether
England actually enjoys the liberty whose principles he examines; and he proceeds
to discuss "monarchies with which we are acquainted" where the three powers are
not founded on the model of this constitution. The difficulty of political liberty is
that men believe it means doing what they will, when in truth it can consist only
in being able to do what one ought to will (XI.2,3). To improve their politics, there-
fore, men must have a model placed before them that is actual, so as to be attainable,
and also removed from the actual, so as not to be mortifying. Behind the desire for
political liberty lies human self-esteem, which Montesquieu must both cultivate and
moderate.
Montesquieu begins the chapter by saying that there are three kinds of power
in each state: the legislative power, the executive power of things depending on the
right of nations, and the executive power of those depending on civil right. This is
the definition of powers in law or right; for the primacy of law implies the primacy
of right, especially right among nations so that each state can make its laws undisturbed.
But Montesquieu immediately restates the powers in practice: by the first, the prince
or the magistrate makes laws for a time or for always, and corrects or repeals those
made (an assertion of sovereignty without reference to right); by the second, he makes
peace or war, sends or receives embassies, establishes security, and prevents invasions
(such is the easy and serene execution of the right of nations); by the third, he pun-
ishes crimes or judges differences among particular persons (executing sovereign law
or civil right?). The second kind of power becomes the "executive" in Montesquieu,

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 249

and we see that the "power of judging" appears in the practical restatement of the
three kinds. Then he declares that if the legislative and executive powers are united
in the same person or body, there is no liberty; and if the judicial power is not separate
from the other two, there is no liberty. He declares this despite the fact that he had
spoken of each power as a power of the prince or magistrate, as if to remind us of
the sovereign power in which all the powers are united. Political liberty in a citizen,
Montesquieu says, is that tranquillity of spirit which comes from the opinion that
each has of his security. He proceeds from the unity of power under the primacy of
law or right, which yields a separation of legislative and executive powers, to a separa-
tion which implies a unity of sovereign power, to a separation for the sake of liberty,
so that one citizen cannot fear another citizen.
Montesquieu's deference to each man's opinion of his own security reminds us
of Locke's natural executive power, the source of sovereignty in civil society and the
recourse of every man when political power does not protect him. But Montesquieu
has a different remedy, the power of judging, which is separate from the executive.
This power is to be exercised by the people, or by those drawn from the people, and
from being so terrible among men, it thereby becomes, as it were, invisible and null.
Men do not continually have judges before their eyes; and they fear the magistracy,
not the magistrates. Montesquieu seems to be speaking at least partly of juries - and
to be anticipating or inspiring Tocqueville's discussion of them as an institution of
self-government.11 He makes judicial power separate from the executive in order to
give it over to the people, and thus to make it not seem terrible. Instead of having
the recourse of natural executive power as according to Locke, each man has the pos-
sible exercise of civil power of judging. The chef-d'oeuvre of the legislator of a free
people, or of a people enclosed in a city (for free men are enclosed by nature, whether
they know it or not) is to know how to place the power of judging well (XI. 11).
Placing it well is placing it where it does not attract odium, precisely with the people
to whom it would otherwise become odious.
Montesquieu returns to Aristotle's concern that the need to punish not make
government odious, in contrast to Machiavelli's opinion that punishing makes govern-
ment impressive, and to Locke's, that the people must both relinquish their natural
executive power to the civil executive and retain it when that executive is not effectual.
But Montesquieu shares the concern of Machiavelli and Locke for the security of the
individual, and so defines political liberty, in contrast to Aristotle's argument that
nature permits men a free, self-sufficient life of virtue. So whereas Aristotle refers
judging to an intelligible standard according to which men judge, Montesquieu un-
derstands it to be grounded in each man's opinion of his own security. Aristotle seeks
moderation because nature supports it; Montesquieu, because nature does not.
Every man who is taxed should govern himself, Montesquieu continues; so the
people should have the legislative power. But only representatives can discuss affairs.
The people cannot, and they should enter into government only to choose representa-
tives. It was a great fault in the ancient republics that the people took active decisions,
requiring execution, of which they are entirely incapable. Even the representative body
should not take an active decision, which is executive, not legislative. Montesquieu

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250 I PRESIDENTIAL STUDIES QUARTERLY

concedes that the nobles must have a body to stop the enterprises of the people. This
body gives them an interest to defend, lacking which the common liberty would be
slavery for them. The concession to the nobles leads to a distinction between two
faculties, apparently of legislating, though not said to be: the faculty of establishing
(statuer) and that of preventing (empêcher). Establishing is ordering by oneself or cor-
recting the order of another; preventing is the right to stop the decision of another,
the veto, or the power of approval, which means not exercising the power to prevent.
Although the preventing faculty is aristocratic in origin, Montesquieu cites the preventing
power of the Tribunes in Rome; he generalizes that faculty to describe the practice
of a democratic body.12 Then he says that the executive, in addition to the body of
nobles, has the preventing faculty within the legislative power.
The legislative body with the faculty of establishing is the body representing
the people. The executive power must be placed in the hands of a monarch, of "one
alone" (a Machiavellian phrase13) because it requires momentary action. The executive
is limited only by its own nature, and it is useless to try to limit it by human con-
trivance. In Rome, the Tribunes could prevent not only legislation but also executive
actions, a power that Montesquieu condemns as "vicious." The preventing faculty
belongs to legislative power, not to executive power, even though it is given to the
executive; for execution of the law cannot be understood as preventing the law from
being established. Nonetheless, the executive receives in fact a share of legislative power
which it can use in the aristocratic or democratic interest according to need.
The law-making (or establishing) power is vested in the representatives of the
people, but it can be prevented by another part of the legislature using the faculty
of preventing. The executive power cannot be prevented. Montesquieu says that the
law is both clairvoyant and blind- clairvoyant, we may suppose, because it claims
to foresee everything, blind because it does not succeed. Legislative power is limited
by the nature of law, and the limitation is visible in the preventing faculty within
legislative power, as well as in the need for unpreventable execution of the laws. Then
what is the relation between legislation and execution? Montesquieu says in a famous
passage- famous for its obscurity as well as for its importance- that the legislative
body consists of two parts, each restraining the other by their mutual faculty of
preventing. Both are bound or connected (liées) by the executive power, which is itself
bound or connected by the legislative. These three powers might be expected to come
to rest or inaction, but since by the necessary movement of things they are constrained
to proceed, they are forced to proceed together.
How may this passage be understood? It appears that the executive is the one
that prevents but cannot be prevented. When he prevents, he is part of the legislative
power; and again the executive has more power in practice than in theory. The execu-
tive is the active power, dealing with momentary things. Since we are told that things
necessarily move, the executive power would be the natural power, in the sense of
most imitating the motion of human things. Montesquieu speaks next in this chapter
of the powers of the executive in war and peace and as commander-in-chief of the
army; for foreign danger keeps government tense and in motion. Elsewhere in Book
XI, he shows how to make the executive serve liberty rather than military glory, as

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 THE MODERN DOCTRINE OF EXECUTIVE POWER | 251

in Rome. And if the executive is the active power, legislation is essentially preventing.
We note that in the passage we are discussing Montesquieu makes no reference to
the establishing faculty of legislation. The reason may be that establishing is a kind
of preventing. The establishing faculty was said to be ordering or correcting an order,
but given the necessary motion of things, an order is an order to make things stop
so as to create stability, as in Locke's "standing rules." Stability is necessary to liberty,
that is, to the security of the individual, but it is not sufficient, as Montesquieu indi-
cates by the active character of the two verbs, "establishing" and "preventing."
Legislation has to do with stopping, and it is therefore applied against the neces-
sary motion of things, or against nature. But one must be active to have an effect
against nature. "Establishing" and "preventing" make reference to the law-making
power, not to the fixed laws of a tradition. For Montesquieu as for Locke, a govern-
ment of laws means a government of legislation, always ordering anew and correcting
itself. Modern legislation as they conceived it uses nature's power, the motion of things,
against nature in the interest of mankind, since the motion of nature upsets rather
than supports human arrangements. Modern legislation uses executive energy to es-
tablish stability, so far as stability is possible.
Executive power is closer to nature and necessity; legislative power is men's at-
tempt to make standing rules for themselves, as if commanding nature to stop. The
problem of the relation between executive and legislative power in Montesquieu is
the same as the problem of the ambivalent executive, weak in theory and strong in
practice. To the extent that men need executive energy to make their legislation effec-
tual, they reflect or obey the necessary motion of things. Their effort may then have
to be understood as self-enslavement to nature instead of self-assertion against it. The
ambivalent executive is a consequence of the ambivalence of human freedom against,
or in concert with, the things that limit and enslave men.

Notes

1. The following is based on my chapter, "The Ambivalence of Executive Power," in Joseph M. Bes-
sette and Jeffrey Tulis, eds., The Presidency in the Constitutional Order (Baton Rouge, Louisiana:
Louisiana State University Press, 1981), pp. 314-333.
2. Pacificus, no. 1 (June 29, 1793); The Papers of Alexander Hamilton, Harold C. Syrett, ed., 26 vols.
(New York: Columbia University Press, 1961-79), XV 33-43; Federalist 70.
3. The following is based on my chapter, "The Absent Executive in Aristotle's Politics? in Thomas
B. Silver and Peter J. Schramm, eds., Natural Right and Political Right (Durham, NC: Carolina
Academic Press, 1984), pp. 169-196.
4. NE 1112b32, U41b34; Politics 1280al4-17, 1281b31-1282a24, 1287alO-26.
5. See Politics 1282a35-8; Tocqueville, Democracy in America, II.4.7.
6. The Prince, ch. 14; Discourses on Livy, I 25, 26.
7. Discourses on Livy, III 3.
8. M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Oxford University Press, 1967),
ch. 2, p. 58; W. B. Gwyn, The Meaning of the Separation of Powers, "Tulane Studies in Political
Science," vol. IX (New Orleans, Louisiana, 1965), chs. 3, 4.
9. Gwyn, op at., p. 81, says: His old-fashioned views on this matter [the dispensing power of preroga-
tive], written a decade before the Revolution, oddly enough were more in tune with those of

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252 I PRESIDENTIAL STUDIES QUARTERLY

the defeated King and his followers." Cf. Peter Laslett, "Introduction" to his edition of John Locke,
Two Treatises of Government, (Cambridge: Cambridge University Press, 1963), pp. 25-37.
10. See also Federalist 14.
11. Tocqueville, Democracy in America 1.2.8.
12. See Blackstone, Commentaries on the Laws of England, I 154.
13. Machiavelli, Discourses on Livy, I 9.

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