Analysis of Presidential Form of Government in The Light of

J.W. Burgess

Submitted by
Ubaid Mir

Enrolment No.
1807CUKmr59

School of Legal Studies

Department of Law

Under the Guidance of

Dr. Irfan Rasool
 Aims and Objective

This paper aims to study the canon of distinctions on three grounds - based on identity
or non-identity of the state with its government, based on the consolidation or
distribution of governmental power, and lastly based on the tenure of the persons
holding office or mandate as given by John William Burgess. To analyse the
presidential form of government in light of the canon of distinction given by J.W.
Burgess and apply the same to countries’ constitutions, namely the United States of
America and India to analyse whether they fall under the presidential form of
government or not.
The paper clarifies the standing of the presidential form of government by guiding
through the implementation and success in the United States of America. The paper
lastly deals with the possibility of the role of the President and the Executives in India.
 Research Methodology

As part of this research paper, the methodology for the same is based on secondary
research data from sources, including the book written by John Burgess Political
science and Comparative Constitutional Law and the bare text provisions from The
Constitution of India, which provides for a substantial part in my research. I have also
referred to the Constitution of the United States of America, which analyzes the
practical application of the theory of John Burgess. The paper also emphasises the
basis of my observation based on my research from the aforementioned sources.
 Biography

John William Burgess was born on 26 August 1844 and died on 13 January 1931. He
was a political theorist, historian, and university dean. He was born in Cornersville,
Giles County, Tennessee. Raised in Tennessee in a slaveholding, pro-Union southern
Whig family, Burgess became interested in politics early in life upon hearing the
orations and debates of Henry Clay, Andrew Johnson, and Alexander Stephens. He
served as a federal scout and quartermaster during the Civil War, having barely
escaped impressment into the Confederate army. Burgess took away from the war a
deepened commitment to American nationalism and an avowed devotion to teaching
politics as a matter of reason and compromise.
In 1890–1891 Burgess published his most important and ambitious theoretical
work, Political Science and Comparative Constitutional Law. This two-volume
treatise became a standard in political theory at the turn of the century. With related
works by Woodrow Wilson and W.W. Willoughby, it identified political science as
the science of the state: “The popular national state alone furnishes the objective
reality upon which political science can rest in the construction of a truly scientific
political system.” This conception of political science (and the related studies of law
and history) dominated American higher education until Progressive-era political
scientists directed attention to administration, policy, and the realities of governmental
practice. Reflecting the Hegelian influences of his teachers, Burgess developed a
theory of the modern state as the progressive realization of human reason through
history. He based the state on the nation, which he understood as a body of people
unified by language, custom, and culture. The defining characteristic of the state was
its sovereignty, giving it a higher legal status than church, corporation, or government.
1

Canons of Distinction

In his book Political Science and Comparative Constitutional law, John Burgess gave
various canons of distinctions with regard to the various forms of government. In his
book, John Burgess endeavoured to show that the conceptions of the forms of the state
are vitiated, and the current nomenclature employed to give expression
to the conception rendered almost useless by the confounding of the ideas of state and 
1
*James Farr, ‘Burgess, John William’ (American National Biography, February 2000)
<https://doi.org/10.1093/anb/9780198606697.article.1400087> accessed 27 June 2019
government. The absence of clear and correct distinction between state and
government and its absence in the literature of this subject, he was also compelled to
create new nomenclature upon this topic.
First Canon of Distinction:
As given by John Burgess, the first canon of distinction was regarding the identity or
non-identity of the state with its government. From this standpoint, according to him,
the government is either immediate or representative.
1. Immediate government is that form in which the state directly exercises the
functions of the government. This form of government must always be
unlimited, whether the state is monarchic, aristocratic, or democratic. The state
alone can limit the government, and, therefore, where the state is the
government, its limitations can only be self-limitations, i.e., no limitations in
public law. Nothing prevents the immediate government from being always
despotic government, in fact, except a benevolent disposition. It is always a
despotic government in theory.
2. Representative government is, in general definition, that from which the state
vests the power of the government in an organization or organizations more or
less distinct from its own organisation. The representative government may be
limited or unlimited. If the state vests its whole power in the government and
reserves no sphere of autonomy for the individual, the government is unlimited;
it is despotism in theory, however liberal or benevolent it may be in practice. If,
on the other hand, the state confers upon the government less than its whole
power, less than the sovereignty, either by enumerating the power of the
government, or by defining and safeguarding the individual liberty against
them, the government is limited, or as now we usually say, it is constitutional
as to form.Therepresentativegovernment may be monarchic, aristocratic ,
or democratic, according to one or a few or the mass of the state’spopulation ar
e made eligible by the state to hold office or mandate.

Second Canon of Distinction:

The second canon of distinction, as per John Burgess, is based on the consolidation or
distribution of governmental power. According to him, this canon of distinction in the
forms of government is between centralized and dual system of government.
1. Centralized government is that form in which the state vests all governmental a
uthority in a single organization. In this form there is no constitutional autonom
y in the localities, no independent local government. The local government is o
nly an agency of the central government, established, modified and displaced
by the central government at its own will. This form is best suited for states of
small or moderate territorial extent and having a perfectly homogeneous
population; i.e. completely national states.
2. Dual government is the form in which the state distributes the power of
government between two classes of organizations, which are so far independent
of each other, that the one cannot destroy the other or limit the power of the
other as determined by the state in the constitution. Both are completely subject
 to the state. Either may be changed or abolished at will by the state. Neither is
in essence an agency of the other, although it is conceivable, and often true,
that the one may or does employ the other as agent.
This system of dual government as defined by John Burgess as second canon of
distinction is subject to a subdivision. It may be confederate government or federal
government.
Confederate government is the form in which, as to territory and population, the state
is coextensive in its own organization with the organization of the local government.
Federal government is the form in which, as to territory and population, the state is
coextensive in its own organization and the organization or the general government. In
the confederate system there are several states, an equal number of local governments,
and one central government. In the federal system, we have one state, one central
government and several local governments.
Furthermore, John Burgess gave an alternative distinction arising from the application
of his second canon of distinction. This distinction is between consolidated
government and co-ordinated government.
3. Consolidated government is the from in which the state confides all
governmental power to a single body. If this single body be a single natural
person, then the government is monarchic. If it consists of a number of natural
persons, then the government is aristocratic or democratic.
4. Co-ordinated government is that form in which the state distributes the power
of government, according to their nature, between separate departments or
bodies each created by the state in the constitution, and, therefore, each equally
independent of, but co-ordinated with, the other or others.

Third Canon of Distinction:

John Burgess’s third canon of distinction is based on the tenure of the persons holding
office or mandate. Viewing from this standpoint, he distinguished governments on the
basis of hereditary or elective.
1. Hereditary government is the form in which the state confers the power of
government upon a person, or upon an organization or organizations composed
of persons standing in a certain family relation to his or their immediate
predecessors. The state determines, in the constitution what that relation shall
be.
2. Elective government is that form in which the state confers the power of
government upon a person, or upon an organization or organizations composed
of persons, chosen by the suffrage of other persons enfranchised by the state,
and holding the power thus conferred for a distinct term and under certain
conditions.
Fourth Canon of Distinction:
From the standpoint of John Burgess’s fourth canon of distinction, a government is
either parliamentary or presidential in its form.
1. Parliamentary government is that form in which the state confers upon the
legislature the complete control of the administration of law. Under this form
of government, the legislature originates the tenure of the real (though perhaps
not the nominal) executive and it can terminate it at pleasure; and under this
form the exercise of no executive prerogative, in any sense and manner
unapproved by the legislature, can be successfully undertaken.
2. Presidential form of government is that form of government in which the state,
the sovereign, makes the executive independent of the legislature, both in
tenure and in prerogative, and furnishes him with sufficient power to prevent
the legislature from trenching upon the sphere marked out by the state as
executive independence and prerogative.

In this paper, we are going to be analysing the presidential form of government in the
light of the canon of distinction as given by John W. Burgess.
 Presidential Form of Government

According to John Burgess, Presidential form of government is that form of

government in which the state, the sovereign, makes the executive independent of the
legislature, both in tenure and in prerogative, and furnishes him with sufficient power
to prevent the legislature from trenching upon the sphere marked out by the state as
executive independence and prerogative. The degree to which the independence of the
executive exists varies. The executive may be made only politically independent of
the legislature which would signify that the executive as well as his agents are not
answerable to the legislature for the executive policies or acts. The executive may be
made entirely independent, which would signify that the legislature could not even
impeach him for high treason or misdemeanour. The executive may also be made
independent of the legislature, except he may commit some crime of a particular
heinous nature, for example, high treason.
The executive may also be granted the power to veto the acts of the legislature. The
executive may be furnished with an absolute veto upon the acts of the legislature, or a
suspensive veto, or a veto which may be overridden by an increased majority.
A government is said to be presidential in its form, if the legislature cannot ordinarily
originate the executive tenure or terminate it simply on account of some political
disagreement. The requirements of the principles of presidential form of government
are said to be substantially fulfilled, if the executive is furnished by the state with the
independent power to defend its prerogatives partially, if not completely against the
possible encroachments of the legislature.
John Burgess is of the view that this form is a practical form of government. He
considers this form of government to be conservative, i.e., it fixes the weight of
responsibility on a single person, this one person can come to decision on his own
while half dozen or more of people will quarrelling amongst each other. He also is of
the opinion that a single person is more capable of making policy decisions as he is
not lamed and limited by a division of counsel and a divergence of views.
John Burgess does not rule out the possibility that the independence of executive may
produce a deadlock between the executive and the legislature, for
example, the executive may veto a legislative act and the legislature may refuse to
pass the appropriations until the veto be withdrawn. The state may however deal with
this danger by providing in the constitution, the separation of questions concerning
appropriations from all other questions and by vesting in the executive the powers to
execute the laws by his own ordinances.
The advantages of presidential government are especially manifest in those states in
whicha great variety of views and interests prevail, or in which governmental power is 
distributed among two or more independent organizations, or in which active defense 
against foreign invasion is a chief necessity. When all of these conditions coexist, any 
other form than very strong presidential government will inevitably meet with speedy 
and miserable failure.

 Presidential Form of Government in The United States

The United States is Presidential in its form. The tenure of the President is ordinarily
independent of the legislature, both in origin and in termination. 2 Only upon the failure
of the regular electors to elect may a branch of the legislature act, and then not as
legislature but as a central board of electors; 3 and only upon the commission of high
crime or misdemeanour may the legislature undertake to terminate the tenure. 4 This
dominance of the legislature over the executive is to be considered as an exceptional
measure. The general rule of the constitution of United States is the independence of
the tenure of the president.
Furthermore, the executive head of the United States government is completely
independent of the legislature as to his political policy. The defeat of a proposition
made by him, or his agents to the legislature, or a vote of censure passed upon him by
the legislature do not call for his or their resignation. Nothing of this sort is provided
in the constitution of United States. The political independence of the executive over
the legislature is complete.
Lastly the executive head of the United States government is furnished by the
constitution with the power to defend his prerogatives against any possible attempt of
the legislature to encroach upon them. On one hand, it is true that this power of the
executive of veto is not absolute, but on the other hand it is also not only limited to
those measures touching the executive prerogatives but the majority required to
overcome it is so large that the defence is practically complete. 5 The executive enjoys
the unlimited scope of veto power in regard to opposing, and probably defeating, any
measures of administrative law or ordinance which he may regard as unconstitutional
or useless or impracticable, no matter whether it touches his prerogatives or not. This
is sufficient to secure the independence of the of the executive. The veto power in the
hands of the executive, however, is not limited to the cases noted above. Any act of

2
United States Constitution, Art. II, sec. 1, § 2.
3
Ibid. Amendment XII.
4
Ibid, Art. II, Sec 4.
5
United States Constitution, Art. I, Sec 7, § 2 and 3.
the legislature which requires the concurrence of the two houses is made subject to the
presidential veto.6

6
Ibid.
  President’s Role in India
The constitution of India states that there shall be a president of India 7 and all the
executive powers of the union shall be vested in the president. 8 The tenure of the
president is not entirely independent of the legislature as it is the legislature who elects
the president.9 The executive head of the Indian state is elected by the members of an
electoral college consisting of the members of the parliament and state legislatures.
The legislature, however cannot terminate the tenure of the President unless it is for
the violation of the constitution,10 because the president takes an oath to preserve,
protect and defend the Constitution of India.11 The President is not answerable to any
Court for the exercise and performance of the powers and duties of his office or for
any act done or purporting to be done by him in the exercise and performance of those
powers and duties.12 This protection is however, restricted by Article 61 of the Indian
Constitution.
The executive head of India is bestowed by the right to veto a bill passed by the
legislature. When a bill has been passed by the Houses of Parliament, it shall be
presented to the President, and the President shall declare either that he assents to the
bill, or that he withholds assent therform. 13 This right to execute veto is not absolute.
The Indian Constitution, however, does not give a specific time limit for presidential
action on a bill sent by the Parliament. Thus, by indefinitely postponing action on a
bill, the president effectively vetoes it. However, if a president receives a bill, he or
she had previously vetoed and sent back to Parliament, where such a veto has been
overruled by another Parliamentary vote, then such a bill becomes an act within
fourteen days of the President’s receiving it regardless of his or her subsequent action
or inaction.
The Constitution also grants the President the power to promulgate ordinances. 14 The
ordinances passed by the President shall have the same force and effect as an act of
Parliament.
The Constitution of India also provides that there shall be a Council of Ministers
headed by the Prime Minister to aid and advise the President. 15 The Prime Minister is
appointed by the President and the other Ministers are also appointed by the President
on the advice of the Prime Minister, 16 and they shall hold office at the pleasure of the
7
Indian Const, Art 52.
8
Indian Const, Art 53.
9
Indian Const, Art 54.
10
Indian Const, Art 61.
11
Indian Const, Art 60.
12
Indian Const, Art 361.
13
Indian Const, Art 111.
14
Indian Const, Art 123.
15
Indian Const, Art 74(1).
16
Indian Const, Art 75(1).
President.17 This means that the legislature holds the office at the pleasure of the
executive and not the other way around. However, the situation in India is quite
peculiar as it fits into the presidential form canon of distinction of J.W. Burgess, but
the real practice is far from it. The judiciary’s interpretation of the provisions has
rendered the situation in which the President is merely a nominal head of the state and
the real executive power is enjoyed by the Council of Ministers and the position or
role of the President is the same as that of the British Crown. 18 The Judiciary also
interpreted the provisions in saying that the President cannot exercise his executive
functions and powers without the aid and advise of the council of ministers. 19 Even the
power of the President to promulgate ordinances is subject to the aid and advise of the
Council of Ministers,20 this reduces the discretionary power of the President. The
courts have further interpreted the Constitution as; the word satisfaction as mentioned
in Part XVIII of the Constitution is not the satisfaction of the President but that of the
Council of Ministers.21
All this puts the Indian form of government into a limbo, when seen in the light of the
canons of distinction given by J.W. Burgess, between the presidential form of
government and the parliamentary form of government.

17
Indian Const, Art 75(2).
18
Ram Jawaya v. State of Punjab, AIR 1955 SC 549.
19
U.N.R. Rao v. Indira Ganhi, 1971 AIR 1002.
20
R.C. Cooper v. Union of India, 1970 AIR 564.
21
Shamsher Singh v. State of Punjab, 1974 AIR 2192
 Conclusion

In conclusion, the canons of distinction by J.W. Burgess can be applied to almost all
the states and the resulting form of the state can fit in one or the other canon as given
by Burgess.
In the presidential form of government, there is an executive head of the state, which
is independent of the legislature. This executive head has been vested with sufficient
power to fend off any attempt of the legislature to encroach upon his independence.
The best example of this form of government can be seen in the United States of
America in which the President is the executive head of the state and his tenure is
independent of the legislature and so is his prerogative. He also has the right to veto
the acts passed by the legislature, i.e., The Senate, although not absolute but still he
enjoys that power.
The situation in the from of government is rather peculiar and much more difficult to
understand and one cannot definitely put it under presidential or parliamentary form of
government due to the contrast between the provisions of the Indian Constitution and
the Judicial opinion to the interpretation of the said provisions.