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Executive Power

powers, government, authority, legislative, judicial and time

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EXECUTIVE POWER. Authority exer cised by that department of government which is charged with the administration or execution of the laws as distinguished from the legislative and judicial functions.

" 'Executive power,' which the constitu tion declares shall be 'vested' in the presi dent, includes power to carry into execu tion the national laws—and including such other powers, not legislative or judicial in their nature, as might from time to time be delegated to the pfesident by congress —as the prosecution of war when declared —and to take care that the law be faith fully executed." 1 Curtis, Const. Hist. 578.

The separation of the three primary govern mental powers as found in the constitution of the United States and of the separate states is the culmination of a revolution which had long been in progrese in Europe. As is pointed out by a recent writer all governmental power was formerly united in the monarch of the middle ages. Ae the result of experience there was a separation of the state from the government, the former being termed the con stitution-making power and the latter the instru mentalities by which administration was from time to time set in motion and carried on. Further ad vances in experience indicated the necessity of the distribution of powers by which there should be a deliberative body for the formulation of the rules and regulations under which the state should exist and Its affairs be administered ; another which should be the medium by which these rules and regulations forming the body of municipal law should be carried into effect ; and a third to which should be committed the functions known in the science of government as judicial. The latter, under the government of the United States, has reached its highest development and exercises an authority in some instances over the other two departments of the government elsewhere unknown, even going so far ae to define the limits of their authority and to declare void legislative acts. See CONSTITUTION

AL. This theory of the distribution of the powers of government among three distinct authorities, inde pendent of each other, was first formulated by ' Montesquieu, Esprit des Lois, b. xi. c. vi. The ab solute independence of the three branches of gov ernment which was advocated by Montesquieu has not been found entirely practicable in practice, and, although the threefold division of powers is the basis of the American constitution, there are many cases in which the duties of one department are to a certain extent devolved upon and shared by an other. This is illustrated in the United States and in many of the states by the veto power which vests in the executive a part of the legislative authority, and on the other hand by the require ment of the confirmation by one branch of the legis lature of executive appointments. The practical difficulty In the way of'an exact division of powers is thus well expressed: "Although the executive, legislative, and supreme judicial powers of the gov ernment ought to be forever separate and distinct, it is also true that the science of government is a practical one ; therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgotten that the three co-ordinate parts constitute one brotherhood whose common trust re quires a mutual toleration of the occupancy of what seems to be a `common because of vicinage' border ing on the domains of each ;" Brown v. Turner, 70 Ni C. 93, 102. In England, there is in parliament a practical union of all the governmental powers, that body. having absolute power of selecting the agents through whom, in fact, is exercised the executive power theoretically vested in the crown, and the final judicial authority on appeal remaining in the House of Lords. There is, notwithstanding, a com plete recognition of the threefold nature of govern mental power which is not lost nor destroyed by the unity of the final depositary of it all.

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