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proved powerful in those states where the people were intelligent and progressive. A Frenchman, Montesquieu, in his book "L'Esprit des Lois" (The Spirit of Laws), 1748, did more than any other person to popularize the theory. He reasoned that if a single agent were intrusted with the power both to make the laws and to execute the laws, that agent would be strongly tempted to make tyrannical laws and to execute such laws in a tyrannical manner. And it is equally true that if the same agent makes the laws and judges of questions of obedience to the laws, the life, freedom, and property of the individual are utterly at the mercy of this single agent. And the third possible combination, of the agent who executes the laws being also the agent who judges the application of the laws, also gives to such agent all the powers of a tyrant. According to Montesquieu's argument, then, no one agent should be intrusted with more than one of the powers of government. He believed that the separation of powers was an essential requirement for the existence of true liberty for the people in a state.
Application of Theory in Constitutions.-Associated as they were with the idea of liberty, Montesquieu's arguments had great effect just at the time when written constitutions were first formed. The people lived in the dread of the return of monarchy and tyranny, so that they seized eagerly upon any theory of political organization which promised to preserve for them their liberty. The constitution of the United States was drawn by men thoroughly familiar with these political theories, and in so many words it is expressly provided that (a) "All legislative Powers herein granted shall be vested in a Congress of the United States," and that (b) "The executive Power shall be vested in a President," and that (c) "The judicial Power of the United States shall be vested in one Supreme Court." The constitutions of the various commonwealths of the United States have similar provisions, the most forceful statement, perhaps, being in the constitution of Massachusetts (1780): “In the government of this commonwealth the legislative department shall never exercise the ex
ecutive and judicial powers or either of them; the executive shall never exercise the legislative or judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them, to the end that it may be a government of laws and not of men." In the several governments in France during the revolutionary period a succession of constitutions illustrated the effect of Montesquieu's theory, the most striking being the cumbersome constitution of the year VIII (promulgated Dec. 15, 1799) by which separation was carried so far that the legislative was divided into four independent parts: the first (the Council of State) to propose laws, the second (the Tribunate) to debate upon laws, the third (the Legislative Body) to vote upon laws, and the fourth (the Senate) to pass upon the constitutionality of laws.
Strict Separation of Powers Impracticable.—Experience has shown, however, that the strict and absolute separation of the powers of government in a state is utterly impracticable. A system by which the legislative body exercises all the legislative functions and only the legislative functions, the executive body all the executive functions, and only those, and the judiciary all the judicial functions and only those, would be unnatural and impossible. The state is a unified institution. The separate parts of its government are all closely coördinated in the work they do, just as the several members of the human body are coördinated. That each member of the body should act entirely independently of other members is inconceivable; likewise it has been found that separate and totally independent action on the part of each of the departments of the government in the work of governing is not possible.
Examples of Non-Separation of Powers.In actual practice in democratic governments we have numerous examples of the intermingling of the several powers in one department. The most striking example is to be found in England, where the cabinet system has resulted in making the leaders in the legislative body practically in another capacity the executive
head of the Empire. At the same time, the legislative body in itself constitutes the highest judicial court in the Empire, the court of impeachment. Thus the English Parliament holds within itself legislative, executive, and judicial power. Further, in the practical operation of our own government, we do not observe a rigid separation of powers. The Congress, which should strictly be a purely legislative body, itself may constitute a high court of impeachment, thus partaking of the judicial powers. The executive, by virtue of his power of pardon, actually exercises judicial power. Other leading states present the same situation, especially noteworthy in those states, like Italy, which have a cabinet government modeled after the government of England.
Although the arguments of Montesquieu seem logically sound, the evils which he prophesied have not resulted from this union of different powers in one of the governmental agencies. Indeed, where the union of these powers is most strikingly evident, i.e. in England, we actually find the liberties of the people most extensive. In our country, where there is a manifest intermingling of powers upon occasion, we justly pride ourselves on the civic liberty allowed the individual. In Italy, France, and Germany, in varying degrees, the liberty of the individual seems assured. The prospects of tyrannical government never seemed more remote than in the leading states of the world at the beginning of this twentieth century. +
The fundamental reason why civic liberty has been maintained, in spite of the union of powers in one branch of government, lies in the nature of modern democracy. Montesquieu could not have imagined, under the conditions of his own age, a government so fully responsible to the people in all its departments that the coalescence of powers could prove no danger. For example, in England to-day the influence of the people over their government is practically direct; in the United States the influence of the people over their government is exerted at such frequent intervals (by new elections) as to preclude the possibility of tyranny. Then there is always the
Right of Revolution-a moral though not a legal Rightwhereby a people may rebel to overcome any effort to destroy their liberty or restrict their progress. Government to-day in democratic states, whatever its historical origin may have been, is practically a mutual contract between the people and their governors, and exists under such recognized conditions that political tyranny has become an anachronism.
What has been said above with regard to the impracticability of separating entirely the powers of government to correspond to the activities of government should not mislead any one with regard to the fundamental value of the theory propounded by Montesquieu. There is an essential truth in the theory, well brought out by Madison in the Federalist: “The powers properly belonging to one department ought not to be directly and completely administered by either of the other departments; ... Neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers." The important point of this conception of the theory lies in the qualifying words directly and completely and overruling. The fact that one department may have partial agency in, and control over, the acts of other departments is clearly recognized, but the independence in spirit in each of the three departments of government is emphasized. The constitutions of the leading states in the world to-day have been drawn with the essential truth of the theory of the separation of powers in mind.
Superior Position of Legislative.-Although in theory the three departments in the governmental organization are of equal importance, in actual practice the legislative department is seen to have the greatest power. In all governments, that department exercises a measure of control over the executive and judiciary, either by its office of allotting funds for the expenses of other departments or by its regulations for their performance of their functions. It is fitting, therefore, that we should discuss the legislative department before any of the others.
Powers of the Legislative.—Under all constitutions in democratic states the powers of the legislative are very broad. To the legislative is intrusted the power to consider and promulgate laws, which power includes also the power to amend or repeal existing laws, and in most cases to originate by one process or another a change in the constitution itself.
Legislative Body Commonly Composed of Representatives. In the ideal democracy so important a function as this could be intrusted only to a deliberative assembly consisting of the entire body of citizens,—as was done in the small citystates of ancient Greece, and as is done at present in certain of the small cantons of Switzerland. In the great democratic states of the present day, however, the huge masses of population and the vast extent of territory have rendered the direct participation of the whole body of citizens impossible. To take the place of such a general deliberative assembly and to retain so far as practicable the participation of the people at large in the legislative functions, various systems of representa