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The Origins Of Modern Constitutionalism
The Separation of Powers
by Wormuth, Francis D.


From 1660 to 1688 the Cromwellian analysis of powers into legislative and executive was somewhat eclipsed by the legal theory of the restored Stuart monarchy, which found law and prerogative more congenial categories of thought. Nevertheless the Cromwellian ideas were still employed and with the Glorious Revolution were restored to full authority. A large number of Whig pamphlets argued that supreme authority lay with the legislative power; the executive power of the king was inferior to the legislative and might be forfeited for abuse. It was necessary, of course, to deal with the embarrassing fact that the king had a share in the legislative power. This difficulty was usually surmounted by an argument like that of Locke, who contended that the executive had no native right but was created merely for convenience in order that there "should be a power always in being which should see to the execution of the laws that are made"; consequently the executive held his power in trust and it reverted, upon misfeasance, to the associated people, who might then choose another executive officer. Locke's Second Treatise was a fair example of the literature of the time.

As we have seen, the twofold analysis had been used for the same purpose against Charles I. But this political use was a consequence of the separation of the two functions rather than an argument in favor of such a separation. The separation of legislative from executive powers had been advocated by the Levellers primarily for the advantage of the individual, and only secondarily to implement popular government. The arguments of the Levellers had become a part of the permanent heritage of English constitutional thought. The question was extensively debated when the bill for the attainder of Sir John Fenwick was introduced in Parliament in 1696. Macaulay thus summarized the arguments against the bill:1

It was much less easy to answer the chiefs of the opposition when they set forth the danger of breaking down the partition which separates the functions of the legislator from those of the judge. "This man," it was said, "may be a bad Englishman; yet his cause may be the cause of all good Englishmen. Only last year we passed an Act to regulate the procedure of the ordinary courts in cases of treason. We passed that Act because we thought that, in those courts, the life of a subject obnoxious to the government was not then sufficiently secured. Yet the life of a subject obnoxious to the government was then far more secure than it will be if this House takes on itself to be the supreme criminal judicature in political cases." Warm eulogies were pronounced on the ancient national mode of trial by twelve good men and true; and indeed the advantages of that mode of trial in political cases are obvious. ... Every one of them must hear every word of the evidence and every argument used on either side. The case is then summed up by a judge who knows that, if he is guilty of partiality, he may be called to account by the great inquest of the nation. In the trial of Fenwick at the bar of the House of Commons all these securities were wanting.

The bill passed, but this was the last attainder in English history.

The separation of powers was a corollary of the proposition that law is necessarily general and prospective. This too was a well-settled tradition. John Locke recognized four "bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, in all forms of government." The first of these was, "They are to govern by promulgated established rules, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at Court, and the countryman at plough."2 Blackstone said that law "is a rule; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal."3 William Paley said of the separation of powers, "This fundamental rule of civil jurisprudence is violated in the case of acts of attainder or confiscation, in bills of pains and penalties, and in all ex post facto laws whatever, in which parliament exercises the double office of legislature and judge."4

Another well-settled opinion was the desirability of the independence of the judiciary from the crown. This did not imply that the judicial function was qualitatively different from the executive; rather, it was a subdivision of the executive power in which special considerations with regard to personnel obtained. Blackstone believed the judicial power to be part of the executive,5 but he favored the independence of judges.

In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty, which cannot subsist long in any state unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would then be regulated only by their own 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 for the legislative.6

This opinion was the consequence of the contests with the crown in the seventeenth century. The conduct of the judges in the reign of Charles I had persuaded many people that the judges should hold office on good behavior rather than at the will of the king. The House of Lords in 1641 petitioned the king to appoint the judges quamdiu se bene gesserint, rather than durante beneplacito, and Charles agreed. But Charles II and his successors reverted to the earlier practice, and it was not until the Act of Settlement of 1701 that judges became independent of the crown. That act provided that judges should be removed only upon address to the king by the two Houses.

What was desired was the independence of the judiciary from the crown. Since the crown possessed the executive power, the rule was sometimes formulated as independence from the executive. This, however, was misleading. Were it not that the executive chanced to possess also a share in the legislative power, the judges would not have occupied the strategic position they did. In controversies between the king and Parliament, the king could by his veto power prevent any legislative resolution of the dispute. If he controlled the judges also, he could secure the decision of the dispute in his own favor. This is what actually happened in Stuart days. Properly stated, then, the argument for the independence of the judiciary resulted from the fact that the executive possessed a share in the legislative power. It was a dismemberment of executive power in order to compensate for the intrusion of the executive into the legislature.

The twofold enumeration of legislative and executive did not absolutely exclude other powers. It is interesting that the elder Pitt, in arguing for repeal of the Stamp Act, distinguished between the legislative and the taxing powers: Parliament had the right to legislate for the colonies, but not to tax them.7 There was a tendency, however, to assimilate such secondary powers to the legislature or the executive as peculiarly appropriate to one or the other.

John Locke gave particular attention to one of these secondary powers, In addition to the legislative and the executive he recognized the "federative" power.8 This was the conduct of foreign relations, which he vested in the executive officer as a distinct function. A few later English writers adopted Locke's threefold enumeration. Montesquieu took Locke as his point of departure, but then wandered away in a manner that requires particular description.

The famous sixth chapter of Book XI of the Spirit of the Laws, "Of the Constitution of England," recognizes three powers: the legislative, the executive power in foreign relations (Locke's federative power), and the executive power in internal matters. The third category is then subdivided. "By the third, he [the magistrate] punishes crimes or adjudicates disputes between individuals. The latter we will call the power of judging; the former, simply the executive power of the state." At this point Montesquieu either drops the federative power or assimilates it to the executive power proper, and immediately he confronts us with a new triumvirate — legislative power, executive power, and the power of judging. If the legislative power is joined to the executive, "there is no liberty, for one may fear that the same monarch or senate will enact tyrannical laws, to execute them in a tyrannical manner." If the power of judging should be joined to the legislative power, "the power over the life and liberty of citizens would be arbitrary; for the judge would be legislator. If it were joined to the executive power, the judge could have the strength of an oppressor." The discussion continues: "Of the three powers of which we have spoken, that of judging is in a sense nothing (en quelque façon nulle). There remain but two. ..."

Montesquieu next offers the familiar description of the wholesome balance of British institutions. A hereditary monarch possesses independently the executive power, and a share in the legislative; a house of peers moderates the commonalty; the House of Commons guarantees liberty.

Here then is the fundamental constitution of the government which we are discussing. The legislative body being composed of two parts, the one will limit the other by their mutual power of rejecting. Both will be checked by the executive power, which will itself be part of the legislative.

These three powers will produce a state of repose or inaction. But, since in the nature of things they must move, they will be forced to move in concert.

It will be noted that the puissance de juger was in the beginning a part of the executive power, and in the end was "in a sense nothing." This seems actually not to depart from the established English view that the judicial function was a part of the executive. The reason for separating the judicial from the executive (that if they were joined this union would afford "the strength of an oppressor") is very vague. But if we remember that Montesquieu believed that "The executive power ought to be in the hands of a monarch" who should have a legislative veto, it is possible to put a content in the passage. A king who could arrest action by the legislative power, and through a control of the judiciary could resolve disputes with the Lords and Commons in his own favor, would indeed have the strength of an oppressor. This is precisely what Blackstone said, and Montesquieu, like Blackstone, drew upon traditional English opinion. As we have seen, Englishmen had believed for a hundred years that in a mixed monarchy the judges must enjoy secure tenure.

This reasoning has no applicability to a republic. Nevertheless, in Chapter 6 Montesquieu says that "In the republics of Italy, where the three powers are united, there is less liberty than in our monarchies." But in this connection no reason is given for separating the judicial from the executive power; the only argument is for distinguishing the legislative from the other two. "The same body of magistrates has, as executive, all the power which it has given itself as legislature. It can ravage the state by its general decrees; and, as it has also the power of judging, it can destroy every citizen by its particular decrees." Chapter 6 contains nothing more of importance on the judicial function in a republic except the recommendation that it not be placed in a standing body but in juries like the Athenian, so that people will fear the office rather than the magistrate.

In Chapter 18, however, there is a discussion of the judicial power in the Roman republic. Here it is not the separation but the conjunction of powers that Montesquieu advocates. In order to counterbalance the people, the Senate needed a share not merely in the legislative and executive powers but in the power of judging. "When the Gracchi deprived the Senators of the power of judging, the Senate could no longer resist the people. In order to favor the liberty of the citizen, they [the Gracchi] struck at the liberty of the constitution; but the former perished with the latter."

Although Montesquieu is firm on the separation of legislative from other power, the only point at which he offers an argument for discriminating the judicial from the executive power is in the discussion of the British constitution. In a monarchy he desires security of tenure for judges; in a republic he desires a jury system and the right of the citizen to participate in choosing his jurors or judges. These proposals do not make the judicial function a third co-ordinate power; indeed, it is "in a sense nothing." Nor does Montesquieu recommend that government be a balance of three abstract powers. On the contrary, the balance Montesquieu lauds is the familiar balance of the king, representing the unitary principle and possessing a share in the legislative power as well as the executive power, against two social classes which are themselves pitted against each other in legislation as well as against the king.

Nevertheless Montesquieu's executive power was soon abstracted from its monarchical setting, which alone gave meaning to the independence of the judiciary, and the idea of the balance of legislative, executive, and judicial powers was substituted for the internal balance of the legislature. An anonymous English pamphlet of 1758, praising Montesquieu and the British constitution, said, "A system of government happily poised has resulted ... , where the fundamental powers of legislation, of judicature, and that of executing the laws, are wisely disjoined from each other. ..."9 A number of the early American constitutions adopted the idea — those of Virginia, Maryland, and North Carolina in 1776, that of Georgia in 1777, that of Massachusetts in 1780, and the second New Hampshire constitution in 1784.

Montesquieu and Blackstone, in recommending a divorce of the judiciary from the executive, were concerned with political considerations arising from the structure of the British monarchy. It seems odd that a device intended to cure the defects of monarchy should be thought necessary for the American republics. But there was another reason for separating the judiciary from the executive, unnoticed by Montesquieu and Blackstone, which applied in a republic as well as in a monarchy. Adam Smith in The Wealth of Nations wrote, "When justice is united to the executive power, it is scarcely possible that justice should not frequently be sacrificed to, what is vulgarly called, politics."10 The same reasoning seems to underlie Thomas Jefferson's fullest statement on the problem, that in a letter to George Wythe in 1776.11 The motive here was that which originally prompted the Levellers to advocate the separation of the executive from the legislative, to secure the administration of law according to general and pre-established rules.

Responsibility for the doctrine of judicial review is often assigned to the tripartite analysis of power. But James Otis in his famous argument in the Case of Writs of Assistance in 1761 spoke of the "executive courts": "As to acts of Parliament, an act against the constitution is void. ... The executive courts must pass such acts into disuse."12 This idea he developed in his The Rights of the British Colonies Asserted and Proved (1764), in which he said that "the supreme executive" was "a perpetual check and balance" to "the supreme legislative," and would declare void an act of Parliament which violated God's natural laws. This Blackstonian association of the judiciary with the executive continued to be common. The New Hampshire constitution of 1776 refers to the executive courts, and John Marshall, who introduced judicial review into the federal jurisprudence, spoke of the "judicial power as part of the executive."13

Marshall appears to have rested judicial review on the distinction between the legislature and the executive. It is the task of the executive to apply general rules to particular cases. Among those general rules are constitutional rules, which necessarily take priority over inconsistent acts of Congress. When "the judicial power as part of the executive" is called upon to decide a particular case, it will apply the appropriate rules. What is the boundary between the province of the judiciary and that of the President? In Marbury v. Madison Marshall conceded that the President might also be called upon to apply the constitution. "By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. ... The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive."14

Professor Haines has asked, "if the Constitution is a law of superior obligation, on what ground does the court insist that its judgment on the meaning of the Constitution is superior to that of the legislature which has enacted the law?"15 Marshall's statement on the problem is this: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Marshall is not claiming a monopoly of constitutional interpretation for the courts. He is claiming a monopoly over the decision of cases involving "individual rights." He argues that to accept, in a particular case, a legislative interpretation of the constitution would be to permit a legislative intrusion into this judicial monopoly. At bottom, then, he rests on the proposition that the legislature is restricted to the enactment of general rules and that all that pertains to the decision of particular cases is judicial in character. Judicial review is made possible by identifying constitutional interpretation with the decision of particular cases. Professor Haines is right in thinking the logic dubious, but this is Marshall's position.

At this stage in the argument it appears that if there had been no written constitution establishing paramount rules, there would have been no judicial review of legislation. Marshall certainly said as much in Marbury v. Madison. But the proposition that the legislative function is merely to prescribe general prospective rules, and that the legislature is therefore incompetent to deal with particular cases, is not in fact dependent on the existence of a written constitution. And Marshall did base decisions on this proposition, with only the scantiest reference to constitutional provisions. In Fletcher v. Peck18 he held a state law invalid, not chiefly because it violated the constitution, although the contract clause was mentioned in the opinion, but in substance because the legislature had undertaken to deal with a particular case. The Georgia legislature had repealed an earlier grant of state lands. The grant had been obtained by corruption, but the tract in question had come into the

hands of that favorite character of the law, the bona fide purchaser without notice. Marshall wrote:

To the legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection.

It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments. How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitely stated.

The validity of this rescinding act, then, might well be doubted, were Georgia a single sovereign power. But Georgia cannot be viewed as a single, unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. ... The constitution of the United States declares that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts. ...

It is, then, the unanimous opinion of the court, that ... the state of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.

Another of the founders of our jurisprudence, Daniel Webster, taught the same doctrine. In his celebrated argument in the Dartmouth College Case," Webster assailed as ultra vires the action of the New Hampshire legislature in altering the charter of the College.

By these acts, the legislature assumes to exercise a judicial power. It declares a forfeiture, and resumes franchises, once granted, without trial or hearing. If the constitution be not altogether waste paper, it has restrained the power of the legislature in these particulars. If it has any meaning, it is, that the legislature shall pass no act directly and manifestly impairing private property, and private privileges. It shall not judge, by act. It shall not decide, by act. It shall not deprive, by act. But it shall leave all these things to be tried and adjudged by the law of the land. ... Are then these acts of the legislature, which affect only particular persons and their particular privileges, laws of the land? Let this question be answered by the text of Blackstone: "And first, it (i.e. law) is a rule: not a transient sudden order from a superior, to, or concerning, a particular person; but something permanent, uniform, and universal. ..." On the contrary are not these acts "particular acts of the legislature, which have no relation to the community in general, and which are rather sentences than laws"? By the law of the land is most clearly intended the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. ... Everything which may pass under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bill of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees, and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.

Marshall in deciding the case did not purport to rely on Webster's argument. Webster was contending that the act violated the distribution of powers under the New Hampshire constitution. But Marshall could not afford to rest the case on these grounds. It was not that he was reluctant to invalidate a state law without reference to the national constitution, for the Court had done substantially that when it declared void an act of the Virginia legislature altering a corporation charter in Terrett v. Taylor, in 1815.18 But in Terrett v. Taylor there was no question of jurisdiction, for the case arose in the District of Columbia and was from the first in federal jurisdiction. Marshall could not take a case from the highest court of New Hampshire, which, incidentally, had already given a conclusive judgment that the act in question did not violate the state constitution, without grounding the jurisdiction of the Supreme Court on some federal question. Therefore he held that the act violated the obligation of contract clause of the national constitution. But so far as contract law goes he was on sufficiently weak ground, for the decision meant that a donee beneficiary could invoke the terms of a contract to which it was not a party, a principle which was not law then and has never become law since. It seems beyond doubt that Marshall really decided the case on Webster's principles and invoked the contract clause only in order to secure jurisdiction over the case.

Webster was the chief advocate before the Supreme Court of another doctrine, that laws must be prospective in operation. He repeatedly invited the Court to declare invalid, as violations of the contract clause, state laws which infringed "vested rights."19 This doctrine had had considerable currency in the state courts, which had invalidated legislative acts unsettling established interests without making any reference to the state constitutions, on the ground that retrospective measures violated "natural justice" and "free institutions."20 The Supreme Court gave some recognition to the doctrine of vested rights in decisions on the contract clause and hinted at it in other cases.21

It appears, then, that Marshall's jurisprudence was in large part founded on the proposition that the function of the legislature is solely to make general and prospective rules and that the decision of particular cases belongs to the executive, of which the judiciary is a part. He was fortunate in being able to appeal to a written constitution in his contest with the legislatures; probably he would not have succeeded in establishing judicial review without this support. But he did invalidate state laws without significant recourse to the written constitution.

The great weakness in Marshall's position lies in the entirely erroneous assumption that legislation and execution can be divorced. Justice Holmes made no bones of admitting that judges legislate, and retroactively at that: "Judicial decisions have had retrospective operation for near a thousand years."22 We have, then, a breakdown of the separation of powers. We have judges contriving rules for particular cases before them, after the events upon which they pass judgment have occurred. They are likely, as Aristotle said, to be swayed by the circumstances of the case, for "passion perverts the minds of rulers, even when they are the best of men." How extensive is judicial legislation is a matter of dispute. The distinguished jurist John Chipman Gray, in his The Nature and Sources of the Law, said that all judicial decisions were retroactive legislation. No one would be so bold as to say that judges never legislate.

What raises difficulty is the independence of the judiciary. The Levellers had advocated the separation of legislature and executive, but also the dependence of the executive on the legislature, which was to make possible that legislative scrutiny of the executive which was one of the arguments for the separation of powers. On the other hand the subordination of the executive to the legislature, by enabling the legislature to secure the execution of special and retroactive laws, would frustrate the other purpose of the separation of powers. John Lilburne's proposal to entrust the review of legislation to the jury was unrealistic; in any case, it merely shifted the power of arbitrary decision to a third organ. The truth is that there is no solution to the problem of constitutionalism. Wherever the power of final decision is lodged, there also is the power of abuse.

With us, the final power is in the courts. The only restraint placed on them is the self-restraint of the judges themselves. This has in the past been an inadequate safeguard. Justices Holmes and Stone, before 1937, more than once charged the majority of the Court with distorting the constitution to fit their prejudices; Justices McReynolds and Sutherland, after they fell into the minority, retaliated with a similar accusation against the new majority. One side or the other must be right. The Earl of Danby said, in 1689, "if the judges had the determining power, they would get the supremacy."23 American constitutional history is an elaborate documentation of this prediction.

But the controversial actions of the Court have not centered chiefly on problems raised by the separation of powers. The proposition that laws should be general and prospective gave rise only to censorship of legislation in terms of form. There was a second source of judicial review, the doctrine of the moral superiority of the common law, and this gave rise to censorship in terms of substance.

NOTES

(1) History of England (Everyman's Library), iii, 482-483.

(2) Second Treatise, § 142. See also § 137.

(3) Commentaries on the Laws of England, i, 44.

(4) The Principles of Moral and Political Philosophy (Boston, 1825), p. 361.

(5) Op. cit., i, 268.

(6) Ibid., p. 269.

(7) The Beauties of the British Senate (London, 1786), ii, 309.

(8) Second Treatise, chap. 12.

(9) National Spirit, Considered; As a Natural Source of Political Liberty (2d ed., London, 1758).

(10) Book V, chap. I, Part II.

(11) Quoted in Charles M. Wiltse, The Jeffersonian Tradition in American Democracy (Chapel Hill, 1935), p. 119.

(12) Quincy's Massachusetts Reports, p. 474.

(13) Ogden v. Saunders, 12 Wheat. 213, 344 (1827).

(14) 1 Cranch 137, 165-166 (1803).

(15) The Revival of Natural Law Concepts (Cambridge, Mass., 1930), pp. 81-82.

(16) 6 Cranch 87, 136, 139 (1810).

(17) 4 Wheat. 519, 579-582 (1819).

(18) 9 Cranch 43.

(19) Charles River Bridge v. Warren Bridge, 11 Pet. 420, 525, 528-529 (1837); West River Bridge Co. v. Dix, 6 How. 507, 517, 520 (1848).

(20) Charles Grove Haines, op. cit. supra, chap. 4; Edward S. Corwin, "A Basic Doctrine of American Constitutional Law," Michigan Law Review, xii, 247 (1914).

(21) Fletcher v. Peck, supra; New Jersey v. Wilson, 7 Cranch 164 (1812); Sturges v. Crowninshield, 4 Wheat. 122 (1819); Dartmouth College v. Woodward, supra; all on the contract clause. See also Terrett v. Taylor, supra, and Taney's opinion in Scott v. Sanford, 19 How. 393, 450 (1857).

(22) Kuhn v. Fairmount Coal Co., 215 U. S. 349, 372 (1910).

(23) The Thoughts of a Private Person ( 1689 ).

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