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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
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
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
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
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
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
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
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
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
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
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
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
(1) History of England (Everyman's Library), iii,
(2) Second Treatise, § 142. See also §
(3) Commentaries on the Laws of England, i,
(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.
(13) Ogden v. Saunders, 12 Wheat. 213, 344
(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,
(23) The Thoughts of a Private Person ( 1689