§5. The distinction between coercive and non-coercive functions should be carefully kept in view when we turn to consider the question, of fundamental importance in governmental construction, as to the relation of the executive to the legislature. So far as the functions of the executive are internal and coercive, it has been assumed throughout that they will normally be limited by law; i.e. I have assumed that, whenever the executive may invade by physical acts, or restrict by commands, the ordinary private rights of citizens, it will do this strictly in accordance with laws that withdraw or limit these rights, in the special case of the persons concerned, either by way of penalty or for some special end of public utility. This condition is generally necessary to realise the security that the laws are designed to give to private persons. For the power of interference with ordinary private rights, which for the mere defence of these rights it is needful to vest in the executive, involves,---to use Bentham's phrase---a formidable ``sacrifice of security to security''; and, in order to minimise the sacrifice, it is important to place the exercise of this power under close and carefully planned legal restrictions,---of which the well-known limitations on the power of arresting on suspicion of crime, and detaining in prison before trail, and on forcible entry into private houses, are familiar examples. We may assume, then, that normally I the coercion of the executive will be exercised under the restraint of laws defining carefully the limits of its interference with the ordinary rights of members of the community. And if this restraint is to be thoroughly effective, the executive that is not to break these laws must not alone have the power to make them: the supreme authority to modify these laws must be vested in a legislative organ, wholly or to an important extent distinct from the executive. But it may perhaps be questioned whether the executive should be any further subjected to rules laid down by a legislature distinct from it. We can conceive the legislative and executive organs to work effectively in complete mutual independence as regards appointment, organisation, and methods of procedure; the former determining the rules that the citizens generally should obey, and the maximum and minimum penalties they should suffer for disobedience; the latter determining at its own discretion---within the limits fixed by the legally secured rights of private citizens---the instruments and methods for repressing disobedience, enforcing punishment and reparation, and otherwise attaining the ends of government.
The case, however, is different when we consider the relation of the executive to the organ which we have seen to be required for the ultimate control over governmental finance. The coercive work of the executive cannot be made self-supporting; hence the need of obtaining funds f or its support will tend to bring it within the control of the money-granting organ, whose duty it will be to examine carefully any costly changes that may be proposed in the organisation of the executive, and to use its power of the purse to secure economy as well as efficiency in its construction and operations. This, is equally true of the usually larger expenditure caused by the need of providing for resistance to foreign aggression. If the heads of the executive were at liberty to organise the army and navy and civil service as expensively as they thought fit---the money-granting organ being bound to find funds for the expenditure thus entailed---the financial control of this organ would become insignificant, and the protection from over-taxation that it is designed to secure to private citizens would be almost illusory.
And this financial reason for establishing control over the executive applies also to its non-coercive work. The need of such control is obvious, so far as this work is financially onerous to the State. It is not quite so clear in the case of any branch of governmental industry which yields a profit: still it seems on the whole desirable, with a view to the careful adjustment of the supply of public funds to the needs of national expenditure, that the control of the money-granting organ should extend over the whole of governmental finance, especially since any non-coercive branch of governmental industry, even though it may be actually yielding a profit, will usually entail a certain liability on the general public exchequer.
Now, in modern States generally, the legislature is identical---in the main, if not altogether---with what I have called the ``money-granting'' organ. And there are obvious reasons why this identification is desirable, since many important kinds of governmental interference require both legislation and expenditure of public money; and in such cases the division of responsibility, which would result if legislation and money-granting were allotted to separate bodies, would not conduce to the desirable combination of efficiency and economy. Indeed, the body that had the ultimate control over finance could hardly be prevented from acquiring an indirect but important control over all legislation involving fresh expenditure. I shall accordingly assume in what follows that the legislative organ has also the function of determining taxation and supervising the expenditure of Government. But further, there are important considerations---apart from the financial---which render it desirable to place the procedure, if not the organisation, of the executive under the control of the legislature as such. In the first place, so far as it is necessary for the efficiency of any department of the service of Government that the persons employed in it should be subject to severer penalties for breach of rules than would be imposed for the breach of ordinary contracts of service---as is commonly held to be the case with military forces---it is important that these penalties, and the rules for breach of which they are to be inflicted, and the procedure for determining their infliction in any particular case, should receive the sanction of the legislature. A reason of wider application is that, owing to the inevitable imperfection of law, there will always be some danger that the exercise of the power of the executive may become practically oppressive without being illegal. Hence it seems desirable, for the fullest possible security to the citizens generally, not only that this formidable power should be kept strictly within the limits of the law, but also that its exercise within these limits should be subjected to the watchful criticism of the legislature; partly because the careful performance of this function of critical supervision is likely to throw light on defects in the law capable of being removed by new legislation, partly in order that the desire of avoiding inconvenient legislative restraints may itself operate as a moral restraint on the executive.[Back to:]