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As a result, when Americans came to form governments of their own they constructed frameworks not with the idea of Activity Not making a working executive organism or head of the body politic designed to become an active agent for fulfilling the popular desires of a coöperative democratic society, but rather for the purpose of setting up rulers—a necessary evil-to protect them against foreign foes and domestic violence. These rulers might well be hedged about as much as possible lest, in doing anything else, they should develop into tyrants. The government seemed not a part of society but rather a rival against which the people must ever be on their guard. The habit of the time was to regard government as a thing distinct and apart from the people, so that popular liberty implied limitation of the sphere of government. It was only natural, therefore, that governments of diffused powers should be set up and that the "multiplicity of authorities," which Bagehot says would, save for American genius for politics and regard for law, have long ago brought our government to a bad end,5 should be looked upon as its chief excellency.

104. State

Entrusted with Most

It must be noted, however, that the fundamental laws of the early days by no means always expressly sought the comLegislatures plete ideal of the separation of powers. The legislatures, which had popularly resisted the encroachments of foreign governors Government. in colonial days were entrusted with most of the governmental power granted, though the independence of the courts, as guardians of individual rights, was not neglected."

of Powers of

105. Development of Doctrine

of Separation of Powers.

But as time went on and the branches of the government developed their functions, the idea of the separation of powers became more firmly established. The courts early declared that they would, in making their decisions, ignore acts of the legislature which they deemed contrary to the constitution. Similarly the executive officers consistently with the idea of the separation of powers, might have declared that they would not

4Ford, H. J., in Proceedings of Academy of Political Science, III, 2, p. 34. "Quoted by Wilson, op. cit., p. 310.

Prior to 1787, of twelve commonwealth constitutions adopted, six-Ga., Md., Mass., N. H., N. C., Va.,-inserted a clause declaring the existence of the three separate powers.

"There was no absence of rivalry between legislature and courts; see supra,

p. 49.

Concerning the doctrine of judicial review, see, supra, p. 35 and p. 48; infra, p. 233.

enforce acts which they considered unconstitutional. Indeed, when Jefferson became President, he refused to enforce the Sedition Act passed during the administration of his predecessor, and drafted a message to Congress, in which he said,—

Our country has thought proper to distribute the powers of its government among three equal and independent authorities constituting each a check upon one or both of the others in all attempts to impair its constitution. To make each an effectual check it must have a right in cases which arise within the line of its proper function, where equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment and uncontrolled by the opinions of any other departments.

Concerning the Sedition Act, he added,

I took that act into consideration, compared it with the Constitution, viewed it under every respect of which I thought it susceptible, and gave it all the attention which the magnitude of the case demanded. On mature deliberation, in the presence of the nation and under the solemn oath which binds me to them, and to my duty, I do declare that I hold that act to be in palpable and unqualified contradiction to the Constitution."

President Jackson1 held that

the opinion of the Supreme Court ought not to control the co-ordinate authorities of this government. The Congress, the Executive and the Court must each for itself be guided by its own opinion of the constitution. Each public officer who takes an oath to support the constitution swears that he will support it as he understands it. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the Supreme Judges, when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.

American executives have not followed these precedents, but their mere suggestion indicates how the theory of the sepa

"This passage was struck out of the message after it had been signed by Jefferson, Dec. 8, 1801. It was discovered by Prof. Beard in Jefferson's papers in the Congressional Library (1st Series, Vol. VIII, No. 252) and is published in his Economic Origins of Jeffersonian Democracy, pp. 454-5.

1Message vetoing act establishing bank of the United States.

106. Separation

Present Con


ration of powers tends in practice toward governmental paralysis and consequent anarchy.

At the present time thirty-three of the states have a separate article briefly declaring that the powers of government proof Powers in vided are divided into three distinct departments, legislative,2 executive and judicial, each of them intended, as the Arkansas constitution3 expressly says "to be confided to a separate body of magistracy," and composed of persons, save in expressly permitted exceptions, who have no part in either of the others.* Of these thirty-three articles, twenty are entitled "Distribution of Powers," whilst the others use various headings, as "Division of Powers" and "The Powers of Government."

107. Imperfect Realization

Seven constitutions mention distribution of powers in other articles and the remaining eight leave the separation of powers into three divisions to be inferred from the fact that legislative, executive and judicial officers are expressly provided for and assigned powers and duties. So far as the form of the constitutions is concerned, the theoretical separation of powers is universal.

Practically, the separation of powers is non-existent in any absolute sense. The New Hampshire constitution,1 indeed, while declaring that the "three essential powers" ought to be kept of Powers in separate, adds that this independence is to be only such

of Separation


as the nature of a free government will admit or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.

As a North Carolina judge once said, while maintaining firmly the essential powers belonging to each sphere of government,

2Sometimes executive is placed first in the order.

3IV, 1.

4ib. sec. 2.

e. g., Ariz. III.

"Va. III; W. Va. V.

"Texas II.

se. g., Tenn. II, 1.

'See Dealey, American State Constitutions, 122. The Indiana provision may be cited as typical: "The powers of the Government are divided into three separate departments; the Legislative, the Executive (including the Administrative), and the Judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another except as in this Constitution expressly provided." (Art. III.) Mass. (Pt. I, XXX) provides similarly-"to the end it may be a government of laws and not of men." 1I, 37.

the three co-ordinate parts constitute one brotherhood whose common trust requires mutual toleration of the occupancy of what seems to be a 'common because of vicinage,' bordering the domains of each.2

Thus the legislative function is at times assumed by both courts and executives, whose functions are not exempt from use by the legislature and by each other. The decrees of expediency and custom are more potent than constitutional provisions declaring the existence of a separation of powers. The truth is that American governments have been guided by expediency and have let logic trail behind;-which is, indeed, the only logical course for governments to pursue.

After reviewing carefully the various cases on the subject, Professor T. R. Powell has come to the conclusion that

the doctrine of the separation of governmental powers, then, as a complete denial of the capacity of one department of government to exercise a kind of power assumed to belong peculiarly to one of the others, does not obtain in our public law beyond the confines of the printed page. But from the point of view of the individual whose rights are affected by governmental action, it protects him in most of his dealings with governmental authority from the arbitrary power of a single official or group of officials, and secures to him in most instances the right not to be disturbed save by the concurrent action of two or more of the different departments among whom governmental power is apportioned. The cases in which such concurrence is not secured are confined to those spheres of governmental action where individual privilege rather than individual right is at stake, or where the exigencies of government are deemed by the court so important that the interest of the individual must not defeat the collective interest of the whole people of whom he is a part.3

While, however, an attempt to show either in theory or practice a complete adherence to the principle of separation of powers in American state governments must prove a failure, it is certainly true that from a very early day they have required, or at least have had, extra-constitutional means to make them The Political effective in action. Planned for inaction through separation of Party a powers, state governments have achieved action through the Harmonizing extra-legal agency of centralized power in the hands of the ir Departments.

2Bynum, J., in Brown v. Turner, 70 N. C., 93 (1874).

Separation of Powers,-Political Science Quarterly, XXVII, 215 (238); continued, Vol. 28, p. 34.


Means of

the Separate

responsible, though not necessarily ill-meaning, leader of the political party in power--the "boss," as he is termed in political slang.

The enormous burden which maintenance of this extra-legal responsibility has thrown upon the political party in the United States has given it a peculiar position in our political system, though its operations were almost neglected by our students until Mr. Bryce called attention to them.*

Existent from the very beginning of the federal government, political parties became very much vitalized as the growth of economic interests in the country gave rise to demands for governmental action. By means of the party, for loyalty to which both governor and legislator might be induced, though separate, to act in unison, government was cemented into an agency that was workable, though withal awkward, indirect and full of friction.

The sum of the entire matter is that

the American political mind, which, notwithstanding the history of our written constitutions, both state and national, works directly toward its object, has devised the system of responsible party government and has created the party leader, or boss, who does exercise power, who does do somthing. He is responsible, however, to only a small proportion of the community; and herein lies the danger of the situation. In other words, the complexity of our governmental methods, devised in the first instance to protect liberties and to prevent their sudden invasion, has produced official irresponsibility and has made the creation of a responsible extra-official organization, or machine, a necessity."

Original fear of an official aristocracy eventually caused us to play into the hands of an unofficial dictator. prophetic statement has been fulfilled.


Some writers still believe that the preservation of the traditional form of our state government is necessary to the preservation of liberty. Chief among these is Professor Burgess, who has just reiterated his sentiments in his book entitled The Reconciliation of Government with Liberty. To these writers the

*Beard, Politics, 23. Referring to Bryce, The American Commonwealth. Clinton Rogers Woodruff, 15 Political Science Quarterly, 260 (264). bib. 279.

Book III, 1 and 5. (1915.)

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