II. THEORY OF THE SEPARATION OF POWERS

308. Development of the theory of separation of powers. The leading writers who have developed the theory of separation of powers are as follows:

The idea of a threefold division of governmental powers was recognized by Aristotle, Cicero, Polybius, and other ancient political writers. Aristotle, for example, classified the powers of government as: first, the deliberative, or those concerned with great questions of practical policy, including decisions regarding war and peace, the negotiation of treaties, the making of laws, etc.; second, the magisterial, or those corresponding roughly to the executive functions of a modern state; and, third, the judicial power. Although the ancient writers distinguished between three classes of governmental powers, corresponding roughly to the modern classification, yet in practice the distinction was not always observed. . . . Throughout the Middle Ages no clear distinction between legislative, executive, and judicial functions was recognized, though in a rough way the functions, especially of legislation and administration, were separated as a matter of convenience. Generally, the same magistrates exercised both executive and judicial functions.

Bodin, in the sixteenth century, was the first political writer to call attention to the danger of allowing the prince to administer justice in person and to point out the advantage of intrusting the judicial power to independent magistrates. . . . In England, at the time of the Puritan Revolution, in the middle of the seventeenth century, the division of governmental powers and their exercise by separate and distinct organs became for the first time a political doctrine. Cromwell, in the constitution of the Protectorate, went to the length of separating the executive and legislative functions, but he did not fully recognize the independence of the judiciary. John Locke, the political philosopher of the English Revolution, in his famous "Two Treatises of Government," declared that the powers of government naturally divided themselves into those which were legislative in character, those which were executive, and those which were federative. By the latter functions he seems to have meant what is now understood as the diplomatic power.

The first modern political writer to dwell at length upon the separation of the powers of government and to treat it as a fundamental principle of political science was Montesquieu, in his famous work entitled "L'Esprit des Lois," published in 1748. "In every government," he said, "there are three sorts of power": the legislative, the executive, and the judiciary. . . . His views became a part of the political philosophy of

the French Revolution and were fully enunciated in the constitutions which were framed in France before the close of the eighteenth century.

In England essentially the same doctrine as that announced in France by Montesquieu was laid down by Blackstone in his "Commentaries on the Laws of England." . .

In America, at the time of the framing of the national constitution, the influence of both Blackstone and Montesquieu was powerful and decisive, and their doctrines concerning the separation of powers became a part of the political creed of the early statesmen. Madison, in almost the very language of Montesquieu, whom he pronounced "the oracle who is always consulted and cited on the subject," defended the doctrine as essential to the protection of individual liberty. . . . George Washington, John Adams, Thomas Jefferson, Alexander Hamilton, and later Kent, Story, and Webster, all expressed similar views.

In the early state constitutions framed before the close of the eighteenth century the idea that legislative, executive, and judicial functions must be kept separate, and intrusted to distinct authorities, was expressed in no uncertain language; and their governments were organized as nearly in accordance with the theory as considerations of expediency and efficiency permitted. . . .

In various foreign constitutions, particularly those which have been framed under the influence of American ideas, the theory is embodied in similar form. In the states of Europe, where the cabinet system of government prevails, the close connection between the legislative and executive organs constitutes an important exception to the theory; yet, upon careful examination, the violation of the principle will be seen to be really less than it appears, since the functions of legislation and execution are in fact intrusted to separate organs, even though one is controlled by and is responsible to the other for the manner in which it exercises its powers. In none of them is the legislature really the executor of the law or the judge of the controversies raised in the course of its application; nor does the judiciary legislate or administer. The inconvenience and the danger, however, of such a confusion of functions is admitted by European writers as well as by those in America.

309. Montesquieu on separation of powers. The following extract from the "Spirit of the Laws" indicates Montesquieu's idea of liberty as depending upon the separation of powers:

When the legislative and executive powers are united in the same person or body there can be no liberty, because apprehensions might arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

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 could 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.

310. Blackstone on separation of powers. Blackstone's ideas were, in essence, identical with those of Montesquieu.

Wherever 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. . . .

Were it (the judicial power) 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.

311. The United States Supreme Court on separation of powers. The present theory and practice of the United States has been expressed recently by the Supreme Court as follows:

It is believed to be one of the chief merits of the American system of written constitutional law that all powers intrusted 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 intrusted 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.

312. Checks and balances in the United States government. The general nature of the relations among the departments and divisions of government in the United States may be outlined as follows:

The division of the powers of government among the three departments rests on the assumption that while no one of them is in itself unlimited in authority, yet each is independent of the others.

...

It is often said that our governmental system is one of checks and balances for the purpose of restraining the undue exercise of power by the government or its officers, the theory being that unlimited power is not vested in any department; . . . Each department of government does, in a sense, serve the purpose of a check upon the others. While the legislative department cannot directly control the action of the executive or judiciary, it can, by virtue of its sole power to provide for the raising and expenditure of money, exercise a very potent influence with reference to legislative and judicial action; and the judiciary department, by virtue of its authority in a proper case to pass upon the validity of the acts of the legislature or the executive, can restrain those departments within the scope of their proper functions. Again, the division of sovereignty between the federal and the state governments, so that the federal government has supreme power as to limited subjects of a federal nature, while the state governments have general power as to all matters not placed in the control of the federal government, makes each, to some extent, a check upon the other. But the theory of checks and balances must not be interpreted as meaning that either the state or federal government may interfere with the other in the proper discharge of the powers conferred upon it; nor with the well-established rule that in case of an apparent conflict of authority between a state and the federal government, the latter has the ultimate power to decide upon the extent of its own authority. This power is to be exercised, it is true, in accordance with the provisions and limitations of the constitution, but the necessity of providing some tribunal where such conflicts of authority may be authoritatively decided in accordance with the constitution and the law, and not by force or revolution, has dictated the wise provision that the federal judiciary is vested with this ultimate authority. In other words, the checks which federal and state governments may exercise with reference to each other, and likewise those which are vested in the departments of government, are, after all, merely the checks which, by the constitution, are imposed on each; and the whole matter comes to this, that no government, or department of government, can constitutionally exceed the authority given to it, nor act otherwise than as authorized by the constitution.

III. CRITICISM OF THE SEPARATION OF POWERS

313. True meaning of the theory of separation of powers. The limitations that must be placed on the separation of powers, and the real value of the theory, are thus stated by Garner :

When we assert it to be a fundamental principle of political science that the legislative, executive, and judicial functions of government should be intrusted to separate and independent organs or departments, we are to understand the proposition as being true only in a limited sense. Both reason and experience abundantly show that no government can be organized on the principle of the absolute and complete separation of the departments among which the legislative, executive, and judicial functions are distributed. There is not now and never has been a constitution in which the three departments were not more or less connected and dependent one upon the other, and in which each exercised powers that, under a strict application of the theory, did not belong more properly to one of the others. In short, the doctrine of the separation of powers has never been anything more than a theory and an ideal. . . . The strict separation of powers is not only impracticable as a working principle of government, but it is one not to be desired in practice.

While no department exercises all the power which upon a strict interpretation belongs to it, it nevertheless exercises the essential part of it. Each department exercises incidental rights of a nature intrinsically different from the mass of powers logically belonging to it, but they are such only as are necessary to enable it to perform efficiently its functions as an independent branch of the government and are in reality part of the principal power itself. In practice, therefore, the theory has never been construed to mean that all the legislative power shall be exercised by the legislative department, or all the executive power by the executive department, or all the judicial power by the judicial department. The theory otherwise understood would be impossible of practical application in any governmental system.

It is impossible to draw a strict line of demarcation between the several departments. There is a common borderland between them, within which each department must tolerate the others if government is to be efficient. No legislature can discharge entirely all those functions which under a strict interpretation of the theory are legislative. Details must be filled up and rules issued by the executive, governing the application of the law, if the government is to be conducted on practical lines. In short, functions may be separated, but not the departments themselves.