upon the ratification of treaties and the confirmation of appointments to office; and also judicial functions in the trial of impeachments. The judiciary has been constitutionally vested with the power to appoint to certain offices 2 which many consider to be executive.3 In the main, however, these departments are distinct and independent. Each of them is vested with powers to protect itself against encroachment upon its jurisdiction by the other. The legislative may be checked by the executive, through his veto power and his power to refuse to execute a law which he considers to be unconstitutional. It may be checked by the judiciary, through their power to refuse to enforce unconstitutional laws and to give relief to those injured or threatened by action founded upon them. The checks upon the executive by the legislature are the power of two-thirds of the Senate and a majority of the lower House to remove him by impeachment, the power of a majority of either house to withhold the payment of the funds needed to discharge his functions, and perhaps the power of two-thirds of both to prescribe, over his veto, the manner in which he shall discharge his duties. The checks upon him by the judiciary are their power to order the punishment of any of his subordinates, if not of himself, for illegal action in pursuance of his orders; to forbid such acts when threatened, and in certain cases to command them, or perhaps even him, to obey the law. The checks upon the judiciary are the power of the legislature to remove their members in the same manner as the executive, by impeachment; the power of either house to refuse the appropriations necessary to carry on their business; the power of the legislature and executive, or two-thirds of both houses without the executive, to limit their jurisdiction and prescribe the manner in which it shall be exercised, except in so far as it is protected by the Constitution; and the power of the executive to refuse to enforce a judgment which he considers unconstitutional, and to pardon all whom he thinks were improperly convicted.5 3; There thus exists a system of checks and balances, each of 2 Constitution, Article II, Section Ex parte Siebold, 100 U. S., 371. 3 The Federalist, No. xlvii. See the discussion of this question, infra. 4 See supra, § 38, over notes 94 and 95, and infra, ch. XIII. 5 Judge Frazier was removed upon impeachment by the Legislature of which has been used or threatened, designed to preserve the original form of the Constitution unchanged. This system is the peculiar characteristic of the United States, and has established there a presidential form of government as distinguished from the cabinet governments which usually prevail. In these, the legislative and executive functions are both exercised by the same body which has usually absolute control over the judiciary by the power to remove them and appoint their successors; and the nominal head, whether called king or president, has his power reduced to a shadow, while the judges are powerless against the assaults of the legislature. The importance of the maintenance of this principle is recognized in the Constitution of the United States, both by the manner in which it distributes the powers granted by it, and by the language which it uses. In most of the State constitutions, from their earliest foundation, the principle is expressly declared. Thus the present Constitution of Virginia ordains: 66 The legislative, executive and judicial departments shall be kept separate and distinct, so that neither exercise the powers properly belonging to either of the others; nor shall any person exercise the power of more than one of them, except as hereinafter provided.' And the present, which is also the first, Constitution of Massachusetts: 997 "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that this may be a government of laws and not of men."8 § 43. History of the Classification of Governmental Powers. The classification of governmental powers into three is as old as Aristotle, but the importance of their separation was first exTennessee, for his interference by the writ of habeas corpus with the action of the lower house. (See infra, § 94, and Appendix to this volume.) Cases of the refusal by the executive to enforce decisions which he considered unconstitutional, were the conduct of Jackson in regard to the Cherokee cases (infra, § 45), and the recent action of Comptroller Bowler in refusing to audit the warrant for the payment of the sugar bounty. 6 Compare Cooley, Constitutional Limitations, 6th ed., pp. 45-47. 7 Article II. 8 Part First, Article XXX. plained by Montesquieu.1 His great work was accepted as infallible by the leaders of the American people throughout the Revolution and at the time of the Federal Convention.2 More than half the first State constitutions contained declarations of the importance of the distinction. The rest recognized it in their structure. The first constitution proposed for Massachusetts was rejected partly for the reason that the powers were not kept sufficiently apart.3 The first resolution of the Federal Convention was, "that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary." This was adopted by a considerable majority.5 The only contest was over the question whether they should create a new and national government, or should merely amend the Articles of Confederation. There was no dispute as to the tripartite division of the government if that were to be national in its character.6 The Constitution was opposed upon the ground that these powers § 43. 1 Supra, § 6, note 10. 2 Supra, § 6, note 9. 3 The reasons assigned by the County of Essex are contained in a pamphlet called The Essex Result, published in 1778. It contains the following language: "The legislative power must not be trusted with one assembly. A single assembly is frequently influenced by the vices, follies, passions, and prejudices of an individual. It is liable to be avaricious, and to exempt itself from the burdens it lays on its constituents. It is subject to ambition; and after a series of years will be prompted to vote itself perpetual. The Long Parliament in England voted itself perpetual, and thereby for a time destroyed the political liberty of the subject. Holland was governed by one representative assembly, annually elected. They afterwards voted themselves from annual to septennial, then for life; and finally exerted the power of filling up all vacancies, without application to their constituents. The government of Holland is now a tyranny though a republic. The result of a single assembly will be hasty and indigested, and their judgments frequently absurd and inconsistent. There must be a second body to revise with coolness and wisdom and to control with firmness, independent upon the first, either for their creation or existence. Yet the first must retain a right to a similar revision and control over the second." See the New England Magazine for March, 1832, p. 9. See also the statement of the reasons for the rejection of this Constitution in the pamphlet cited supra, § 8, note 7. 4 Supra, § 17. 5 Six to one on the first vote in the committee of the whole. New York being divided and the other States absent. Seven to three on the reconsideration, Maryland being divided. Supra, § 17, over notes 5 and 18. 6An independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community, seemed to be generally admitted as were not sufficiently distinct on account of the executive functions given to the Senate and the veto power lodged in the President. These objections were answered in the Federalist by the statement that the doctrine only meant "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 constitution are subverted;" that this was shown by the practice in Great Britian and the several States; and that a certain mixture of the powers was essential in order that each might be able to guard itself against the encroachments of the others. "The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or, to use his own expression, as the mirror of political liberty, and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system.9" In the century which has since elapsed, by the firm establishment of a system of cabinet government in Great Britain, the legislative and executive powers have become blended. We have thus an extraordinary result. The nation whose constitutional practice suggested to Montesquieu his memorable maxim concerning the executive, legislative and judicial powers, has in the course of a century falsified it. The formal executive is the true source of legislation, the formal legislature is incessantly concerned with executive government." 10 And this practice has gradually spread into all countries where civil liberty is enjoyed, except a few like Germany, in which there is still a conflict between the crown and the people, and perhaps two or three countries in Central and South America besides the United States, where the presidential form of government prevails. A few of the later writers on political science are now disposed to question the soundness of the doctrine of Montesquieu." Here, the true basis of a well-constructed 9 Madison in The Federalist, No. xlvii. 10 Maine, Popular Government, p. 239. 11 The separation of the executive however, there are no signs of its abandonment by the people ; and the wisdom of the changes elsewhere it remains for the future to determine. § 44. Reasons for the Separation of the Three Powers. The reasons assigned for the separation of the legislative, executive, and judiciary, are that they cannot be combined without the creation of an arbitrary government. That the authority to make an act a crime, to condemn for its commission, and to execute the sentence, when united in a single man, make him a despot, and that human passions are too strong to keep him from an abusive use of such strength, are universally admitted, without the need of any reference to history. That when these powers are vested in one body of men, that body usually degenerates into a mob, unrestrained by any considerations of justice or moderation, is less generally recognized, because the instances are rarer; but it is usually conceded, not only by students of the histories of the democracies of Greece, but by those who have any knowledge of the proceedings of the Long Parliament and the National Convention. Their excesses are the things which have brought discredit upon government by the people. They caused the reactions which set up innumerable tyrannies among the ancients; which restored the Stuarts, and, when they were again expelled, made the English nation import foreign kings; which, twice within the century, have made the French people voluntarily submit to an emperor; and which make many of the most intelligent of our own day still believe that no republic can endure. These dangers were observed and described by Montesquieu before the history of his own country reinforced his illustrations. And the continual encroachments which those vested with one power seek to make upon the others are even more apparent now than then. In earlier times, the executive was the strongest. He in most countries succeeded in destroying the legislature, and made the power from the legislative is a dream, though Montesquieu has established the belief that it is one of the great securities of liberty." (Goldwin Smith in The Bystander, Toronto, May, 1880, p. 64, quoted by Doutre, Constitution of Canada, p. 68.) See also Wilson, Congressional Government, pp. 285, 306, 311; Stevens, Sources of the Constitution of the U. S., 1st ed., p. 47. |