incidental powers which are supposed to attach to them when duly organized without any positive enactment of the legislature. Such are the powers of the courts over their own officers, and the power to protect them and their members from being disturbed in the exercise of their functions. Among the powers supposed to inhere in a court when once established is the power to punish for contempt of its authority, which it would possess even in the absence of legislation expressly granting or regulating it.'

In considering the extensive power of the legislature in some cases to establish courts and to distribute judicial power among them in accordance with the constitution, the limitation effected upon it by the distributing clause should not be overlooked. The judicial power must be vested in courts and judges, as prescribed by the constitution, and can never be assumed by the legislature or delegated to the officers whom the constitutions designate as members of the executive department. Any body and any person to whom the legislature does delegate such power becomes a court or a judge, subject to the provisions of the constitution regarding such tribunal and officer.

1 See Ex parte Bollman, 4 Cr. 75, 94; Ex parte Kearney, 7 Wheat. 37, 44; Anderson vs. Dunn, 6 Wheat. 204.

CHAPTER IV

THE BALANCE OF POWERS IN THEORY

SHOULD anything further be inferred from the fundamental principle laid down by Montesquieu, than that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments, the result would be grievous in theory as well as in practice.

Considering that England did not resort to an absolute separation of powers or of the departments, and that England was the example referred to by Montesquieu, it is evident that the French philosopher did not intend to advocate the entire disjunction of the powers or departments.

Under the British constitution, the executive magistrate formed an integral part of the legislative authority. He alone had the prerogative of making treaties with foreign sovereigns, which, when made, had under certain limitations the force of legislative acts. The king appointed all members of the judicial department. One branch of the legislative department formed a great constitutional council to the executive chief. It was also the sole court of impeachment, and invested with supreme appellate jurisdiction in all other cases.

"From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying, 'There can be no liberty where the legislative and executive powers are united in the same person,' or 'if the power of judging be not separated from the legislative and executive powers,' he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his

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own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this; that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free government are subverted." Blackstone says: "The total disjunction of them would in the end produce the same effects by causing that union against which it seems to provide." If each department of government, being equal, could thwart the operations of the other, government would soon be at a dead-lock, since each, acting in defence of its own powers, would never lend its aid to the others.3 Furthermore, these departments, on account of the differences which exist in their organization and functions, are unequal in the power of self-preservation. The legislative power is everywhere extending the sphere of its activity and drawing all powers into its impetuous vortex. The action of the judicial and executive departments is always more or less dependent upon that of the legislature. Besides, the people are little apt jealously to guard against the encroachments made by the legislature, which they regard as the most direct representative of their will; and the great number of the lawmaking body, in which lies its strength, diminishes its sense of responsibility in trespassing upon the domain of the other departments. On the other hand, the courts and the executive are apt to be unpopular with the people. In the enforcement of their duties, they directly affect the interests of individuals. That which these considerations would prepare one to expect, actually came to pass in the early history of Pennsylvania and Virginia. The first constitution of Virginia declared that the three great departments ought not to be intermixed. Jefferson,

1 James Madison, Federalist, no. xlvii. See also La Separation des Pouvoirs, P. 177.

2 Commentaries, book i, p. 154.

3 Mill on Representative Government, p. 82.

4 Madison, Federalist, no. xlvii.

commenting upon this provision, says, “No barrier was provided between these several powers," and then points out how the legislature, as a result of this, had encroached upon the judiciary and the executive. The experience of Pennsylvania was not happier. The council of censors which assembled therein in 1783 to inquire whether the constitution had been preserved inviolate in every part, reported that the constitution had been violated by the legislative usurpation of executive and judicial powers, and that the salaries of the judges had been frequently varied."

Jefferson, in a proposed constitution for Virginia, appended by him to his Notes on Virginia, suggested as a remedy against the encroachment of one department upon another, that the people should be appealed to by the invaded department.

Madison has conclusively shown the futility of this plan. He says that, as every appeal to the people would carry an implication of some defect in the government, frequent appeals would in a great measure deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability. Furthermore, whereas the courts and executive are likely to be unpopular and the legislature popular with the people, the same influences that secured the members of the legislature their election to that body, would secure for them their election to the convention which would, as the representative of the sovereign power of the state, decide the appeal. The members of the convention would be called upon to decide against themselves as legislators.3

Having separated the three departments from each other, the more difficult task remains of securing each against encroachments by the other. The true solution of this difficulty, says

1 Notes on the State of Virginia, p. 195.

2 Federalist, no. xlviii.

Federalist, no. xlix.

Madison, is to permit each department to participate in the functions exercised by the others, so as to check but not so as to control them. The defect must be supplied by so contriving the interior structure of government that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. The greatest security against a gradual concentration of the several powers in the same department consists in giving those who administer each department the necessary constitutional means or personal motives to resist the encroachments of the other. But each department should have a will of its own. There is no method for producing this result but a partial participation of each in the powers of the others, and the introducing in all branches a system of checks and balances on which the safety of free institutions is found essentially to depend.1

1 Federalist, 47, 48, 50, 51. These numbers of the Federalist were written to defend the Constitution of the United States against the violent attacks made upon it at the time of its adoption, on the ground that, although it professed to be founded upon a tripartite separation of governmental powers, yet it was chargeable with a departure from the principle, and therefore dangerous to civil liberty.