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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 Jackson' 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.
Message vetoing act establishing bank of the United States.
ration of powers tends in practice toward governmental paraly. sis and consequent anarchy.
At the present time thirty-three of the states have a separate 106.
article briefly declaring that the powers of government proSeparation of lowers in vided are divided into three distinct departments, legislative, Present Constitutions. executive and judicial, each of them intended, as the Arkansas
constitution 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.”7
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,' indeed, while Imperfect
declaring that the "three essential powers" ought to be kept of Separation of Powers in separate, adds that this independence is to be only such
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.
'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. 1, XX) provides similarly—“to the end ii may be a government of laws and not of men.'
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.?
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."
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 effective in action. Planned for inaction through separation of Pontesa, powers, state governments have achieved action through the Harmonizing extra-legal agency of centralized power in the hands of the ir. Departments.
108. The Political
2Bynum, J., in Brown v. Turner, 70 N. C., 93 (1874).
*Separation of Power8,- Political Science Quarterly, XXVII, 215 (238) ; continued, Vol. 28, p. 34.
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 Jr. 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.5
Original fear of an official aristocracy eventually caused us to play into the hands of an unofficial dictator. Turgot's 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). ib. 279. "Book III, 1 and 5. (1915.)
system of a legislature made up of representatives from diminutive parts of the state, and having no leader responsible to the whole state and really acting through its committees, is sufficient for reasonable purposes of law-making. To them a governor with the power to send formal messages concerning legislation and to prevent or thwart it through the exercise of the veto is sufficient for purposes of governmental leadership. To them it is sufficient that the courts prevent the operation of laws that do not accord with the constitution; their expert legal knowledge need not be made available to assist in law-making. In short, to these writers, effective law-making is less important than the preservation of the kind of governmental organization that traditionally prevents tyranny and there is not always an absence of the worshipful attitude evidenced by the Tennessee judge who thus expressed his appreciation of the American form of government,
The legislative, the executive and the judicial departments are three lines of equal length, balanced against each other, and the framework, forming an equilateral triangle, becomes stronger the more its parts are pressed. Like the foundation of our religion, the trinity, it is the key on which the whole arch rests. The people have erected it; they have seen its suitability for duration, and compared its proportions with the external view of the pyramid, whose age is untold, and which alone, of all the works of man, has withstood the ravages of time.
Since the publication of Woodrow Wilson's Congressional Government a generation ago, there has, however, grown up an increasing body of publicists who have been extremely critical of present framework and who have offered various remedial Political and suggestions. Meanwhile laisser-faire has ceased to be the dom-Conditions. inant ideal of political economists, and competition, upon which the advocates of the let-alone policy relied for the production of economic efficiency has been proven not only inadequate as a means to that end, but inordinately wasteful in its operation. Forward-looking men have, therefore, begun to coöperate, forming vast business combinations, and forward-thinking economists have begun to urge coöperation among producers and con
SPeck, J., in Bank of the State v. Chas. Cooper and others, 2 Yerger (Tenn.), 599 (611). 1831.
To be discussed later.