to be sure, but with "the inevitability of gradualness," for the
concentration of governmental power in the United States, first in the
hands of the National Government; and, secondly, in the hands of the
national Executive. In the Constitutional Law which the validation of
the Roosevelt program has brought into full being, the two main
structural elements of government in the United States in the past, the
principle of Dual Federalism and the doctrine of the Separation of
Powers, have undergone a radical and enfeebling transformation which war
has, naturally, carried still further.

III

A Government of Laws and Not of Men

The earliest repositories of executive power in this country were the
provincial governors. Being the point of tangency and hence of
irritation between imperial policy and colonial particularism, these
officers incurred a widespread unpopularity that was easily generalized
into distrust of their office. So when Jefferson asserted in his
_Summary View_, in 1774, that the King "is no more than the chief
officer of the people, appointed by the laws and circumscribed with
definite powers, to assist in working the great machine of
government,"[35] he voiced a theory of executive power which, impudently
as it flouted historical fact, had the support of the draftsmen of the
first American constitutions. In most of these instruments the governors
were elected annually by the legislative assemblies, were stripped of
every prerogative of their predecessors in relation to legislation, and
were forced to exercise the powers left them subject to the advice of a
council chosen also by the assembly, and from its own members if it so
desired. Finally, out of abundant caution the constitution of Virginia
decreed that executive powers were to be exercised "according to the
laws of" the Commonwealth, and that no power or prerogative was ever to
be claimed "by virtue of any law, statute or custom of England."
"Executive power", in short, was left entirely to legislative definition
and was cut off from all resources of the common law and the precedents
of English monarchy.

Fortunately or unfortunately, the earlier tradition of executive power
was not to be exorcised so readily. Historically, this tradition traces
to the fact that the royal prerogative was residual power, that the
monarch was first on the ground, that the other powers of government
were off-shoots from monarchical power. Moreover, when our forefat