the same, together with their objections thereto in writing, to the Senate or House of Assembly (in whichsoever the same shall have originated), who shall enter the objections sent down by the council at large in their minutes, and proceed to reconsider the said bill. But if after such reconsideration twothirds of said Senate or House of Assembly, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be considered, and if approved by two-thirds of the members present, shall be a law. And in order to prevent any unnecessary delays be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall by their adjournment, render a return of said bill within ten days impracticable, in which case the bill shall be returned on the first day of the meeting of the legislature after the expiration of the said ten days." The constitution of Massachusetts of 1780 in more brief phrase provided for the presentation of bills and resolves to the governor, making regulations of subsequent action after the New York plan, adding the requirement of a vote by yeas and nays; "and the names of the persons voting for or against the said bill or resolve shall be entered upon the public records of the commonwealth." The federal constitutional Convention of 1787, combining the plan of New York and Massachusetts and closely following the language of these constitutions, provided for the veto by the President. Pennsylvania

in 1790 adopted the provision of the federal constitution as the rule of action by the governor and legislature, adding "unless sent back within three days after their next meeting."

The period from a time shortly before the Declaration of Independence until shortly after the federal constitution was in effect, was one of constitutionmaking in the colonies and states. At the close of T this period the principal and general elements of the executive power of the chief magistrate of the American state had been formulated. As found in two or more or all of the state constitutions they were: the suspensive veto, the power to call extraordinary sessions of the legislature, to adjourn the legislature in case of disagreement as to adjournment between the two houses, to convene the legislature at a safe place in case of danger at the seat of government, and the duty "to take care that the laws be faithfully executed." (This last phrase was first used in the Pennsylvania constitution of 1776; it was copied in some of the other state constitutions, adopted in the federal constitution, and is now generally used.)1 Furthermore the governor was commander-in-chief; he might embody the militia; he had the power of pardon and a power of appointment; he might require information from executive officers and communicate information and make recommendations to the legislature; he filled casual vacancies and signed commis

1 In Mississippi, 1868, and Arkansas, 1874, the phrase is "He shall see that the laws are faithfully executed." In Texas, 1876, "He shall cause the laws to be faithfully executed."

sions and grants attested by the great seal of the state; he was frequently the keeper of the seal; he was to transact all executive business with the officers of the state, civil and military; and he was to expedite measures agreed on by the legislature. In most of the states, as is now the general rule, he was incapable of holding any other office while acting as governor.

The executive authority as constituted in the colonies was reproduced and remained the regular form of the organization of the territorial executive power in the continental divisions of the United States.1

1 See W. F. Willoughby, Territories and Dependencies of the United States (American State Series).

CHAPTER III

THE EXECUTIVE POWER: ITS UNITY OR DIVISION

To complete the sketch of the organization and mode of constituting the American state executive power, an account of the method of choice of the chief executive officers, and, incidentally, of the judges, will be given. The title of this chapter is intended to intimate the contrast between the federal type and the state form of organization. The former is the unified type, and the latter the distributed type. !! The unity and strength of the executive power depend upon the control of subordinates by a single head, and the practically efficient principle of this control lies in the power of appointment and removal.

In its nature the power of appointment and removal is executive; so Mr. Madison argued when the question was presented as to whether the advice and consent of the Senate, which was the constitutional condition annexed to the power of the President in the appointment of the higher officers, was also a condition, by implication, of the power of removal. The power to remove was not expressly conferred, but was admitted to be an incident of the power to appoint. Mr. Madison held that when the constitution expressed the single condition of advice and

consent to the original appointment it intended to exclude every other condition. The participation of the Senate in the executive power was exceptional and was not to be extended by inference, and hence the power of removal belonged to the President alone, without the participation of the Senate. This became eventually the settled construction of the constitution and from this power, so confirmed, "has been evolved the President's power of direction and supervision over the entire national administration.”’1

Legislative appointment may naturally include the choice of the officers, executive and ministerial, of the respective houses. The judges may properly appoint the clerks of courts and reporters of decisions. But the appointment of officers charged with the execution of the laws belongs in the nature of things to the executive authority. So the framers of the constitution planned-providing as they did that the President should nominate, and, by and with the advice and consent of the Senate, should appoint ambassadors and other public ministers and consuls, judges of the Supreme Court and all other officers of the United States whose appointments were not therein otherwise provided for, and which might be established by law; but that Congress might vest the appointment of such inferior officers as they should think proper, in the President alone, in the courts of law, or in the heads of departments. The heads of departments and the principal executive officers, including the marshals and the district attorneys, and

1 Comparative Administrative Law, F. J. Goodnow, p. 66.