no liberty, because apprehensions might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Again," There is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with the violence of an oppressor. There would be an end of everything, were the same man or the same body, whether of nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and that of trying the causes of individuals."

Blackstone reaches the same conclusion. He says: "Whereever the right of making and enforcing the law is vested in the same man or one and the same body of men, there can be no public liberty. The magistrate may enact tyrannical laws and execute them in a tyrannical manner, since he is possessed, in his quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself." As to the necessity of the separation of the judicial from the legislative and executive power, he says, "Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges whose decisions would be regulated only by their opinions, and not by any fundamental principles of law; which though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance of the legislative."3

Many minor advantages which are gained by a division of governmental powers readily suggest themselves. Thus, where the legislative and judicial powers are exercised by distinct

1 Esprit des Lois, livre xi, chapitre vi, "De la Constitution d' Angleterre." 2 Commentaries, vol. i, p. 146.

3 Commentaries, 269.

bodies, the general laws are made by one body of men without foreseeing whom they may affect, and when made, they must be applied by the other, let them affect whom they will. The legislature will then have no private interests to serve, consequently its laws will be suggested by considerations of universal effects and tendencies, which always produce impartial and commonly advantageous laws.1

Only one criticism upon Montesquieu's theory seems to merit consideration. It has been said that the judicial is not distinguishable from the executive power, properly speaking, but is only a subdivision of the latter. All that is required, so it is argued, to carry on government, is that the law should be expressed and executed. Accordingly, two powers appear originally in every state, the legislative and the executive; and of these the latter, the executive power, is generally divided into two organs: (1) the administrative, which is active; and (2) the judicial, which is inactive, has no initiative, and is only exercised when a controversy arises.

It seems, however, that judicial power is executive only in the sense in which legislative power is executive. Every department of government and every governmental power is executive in so far as it executes the will of the state. Every department of government is organized, and every power of government is exercised, for the express purpose of executing that will. Neither department executes the independent will of any of the other departments, except so far as the will of the other departments is also the will of the state.

It might with equal propriety be said that all that is required to carry on government is that laws should be expressed and executed, and that two powers appear in every state, the legis lative and the executive; that the legislative power is generally divided into two organs, the legislative, which is active, and which at its pleasure interprets and expresses the will of 1 Paley's Moral Philosophy, book vi, chap. viii. La Separation des Pouvoirs, pp. 12, 179 n., 295.

the state, and the judicial, which is inactive and has no initiative, but which interprets and expresses the will of the state whenever a legal controversy arises as to what that will is.

Nor is it exact to say that two powers appear originally in every state, the legislative and the executive. The state from the first moment of its existence possesses every conceivable power. What may be true is that historically the state established a distinct executive and legislative department of government before it established a distinct judicial department.2

Should it be conceded that the judicial is not theoretically distinguishable from the executive power, or even from the legislative power, this would not conflict with the theory of Montesquieu, which, without distinguishing between the nature of the different governmental powers, asserts that it is indispensable to civil liberty that the power of enacting laws, and of interpreting and executing them, be these powers alike or different in their nature, should be vested in three departments distinct and separate from each other.

1" L'état est fait sur le modèle de l' homme, il y a dans l'état comme une raison qui médite, comme une volonté qui agit, comme un sens moral qui ramène tous les cas particuliers aux règles générales tracées par la raison, par la conscience." La Separation des Pouvoirs, p. 18.

2. Montesquieu says, "Il y a, dans chaque état, trois sortes de pouvoirs, la puissance législative, la puissance exécutrice des choses qui dépendent du droit des gens, et la puissance exécutrice de celles qui dépendent du droit civil. . . . On appellera cette dernière la puissance de juger; et l'autre, simplement la puissance exécutrice de l'état." Esprit des Lois, Liv. xi, c. vi. For criticisms of Montesquieu's theory see La Separation des Pouvoirs, p. 181 et seq.

CHAPTER III

THE DISTRIBUTING CLAUSES IN THE CONSTITUTION OF THE UNITED STATES AND IN THE COMMONWEALTH CONSTITUTIONS

Ir now becomes proper to refer to the unanimity with which the theory of the separation of governmental powers was accepted by the American Revolutionists. In his farewell address Washington says: "The spirit of encroachment tends to consolidate the powers of all departments in one, and thus to create, whatever the form of government, a real despotism." James Madison forcibly says: "The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." In this maxim Thomas Jefferson thoroughly concurred. He says: "The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one." John Adams thought: "It is by balancing each of these three powers against the other two, that the efforts in human nature toward tyranny can alone be checked and restrained and any degree of freedom preserved."3

"I agree," says Hamilton, "that there is no liberty if the power of judging be not separated from the legislative and executive powers."4

In more modern times, Webster says: "The separation of

1 Federalist, no. xlvii.

Works of John Adams, p. 186.

149]

2 Notes on Virginia, p. 195.

Federalist, no. xlviii.

17

the departments so far as practicable, and the preservation of clear lines between them, is the fundamental idea in the creation of all our constitutions, and doubtless the continuance of regulated liberty depends on maintaining these boundaries." Justice Miller says: "It is believed to be one of the chief merits of the American system of written constitutional law that all powers entrusted to the government, whether state or national, are divided into the three grand departments, the executive, the legislative and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of the system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law. of its creation be limited to the exercise of the powers appropriate to its own department, and no others." 2

Great Britain governed each of the thirteen American commonwealths through a governor, legislature, and courts, with such powers and jurisdiction in each of these departments as its parliament willed.

When the united colonists relieved themselves of their subjection to what had become a foreign sovereignty, and they themselves assumed sovereign powers, they preserved these three departments in each one of their commonwealths, as their chief local governmental organs therein.

When they adopted the Articles of Confederation, they established a very limited central government, but retained for their local governments the three departments already existing in each of their commonwealths. The whole power of the central government they vested in a Congress, consisting of a 1 Webster's Works, vol. iv, p. 122.

2 Kilbourn vs. Thompson, 103 U. S. 188.