The theory of the separation of powers holds a prominent place in American political philosophy. That legislative, judicial, and executive functions should be carefully distinguished and entrusted to agents quite independent of each other, has been more or less the aim of our constitution-makers, and has been generally approved by thinkers and writers upon our political institutions.

But what, precisely, does this theory affirm? Its earnest advocates have always held that it is against the interests of liberty for any two of these elementary functions to be performed by the same person; but there have always been those who have seemed to believe its true meaning to be that no person who performs one of these functions shall influence or even in any way participate in, however remotely, the performance of either of the other two. This extreme form of the principle is generally associated with criticism of some public official who is being charged with acting outside of his legitimate powers; or else it is invoked in answer to some reformer who is urging further political adjustment with a view to closer cooperation between the legislative and executive departments in their relation to the initiation of legislation.

It is this second attitude toward the doctrine of the separation of powers which lies at the base of much of the criticism incurred of late by President Wilson. One of his political opponents declared in the United States Senate recently that every measure

of general interest, except the tariff bill, since the beginning of his administration, had been initiated in the White House or in the office of one of his cabinet. "Somehow," he said, "the spirit of our institutions has been transformed and the legislative branch of the government has become a mere recorder. What the President really wants is a journal clerk instead of a Congress. As a legislative body we have for the time being passed out of existence." Of course there is some spite and some partisanship in this statement; but it probably would not have been made. had not the speaker felt able to count upon a widespread conviction that any President's activity in such matters must be contrary to the fundamental principles of our government.

To a less explicit, but no less real, adherence to such a view is due the fact that Mr. Wilson has been severely criticized for following the example of Washington and Adams in addressing the Congress in person instead of sending them written messages, as though the former method were less of an interference with the complete liberty of the law-making body. The fact is likely to be overlooked that he is only reviving the custom originally followed by Washington and Adams. It was Thomas Jefferson who began the custom of sending messages, and that not because of any theory of the separation of powers but simply because he was an indifferent speaker and disliked to make public addresses. His practice became a custom through its imitation by Madison and Monroe, his faithful followers; and the custom has been retained because of inertia, and consecrated by that amusing conservatism so apt to prevail in political and ecclesiastical trifles. A quaint manifestation of it is referred to in Mr. Roosevelt's complaint that senators object to his sending his messages to them in print and were disposed to insist that he write them out in manuscript. His rejoinder is characterestic of that aggressive executive: "Whether I communicate with Congress in writing or by word of mouth or whether I write them by a machine or a pen are equally and absolutely unimportant matters. The importance lay in what I said and in the heed. paid to what I said." An abrupt way of defending the executive's power of initiation; but the provocation was doubtless great and persistent.

In this connection it would be interesting to hear Mr. Roosevelt's views more fully expressed. After having spoken of the difficulties of a President's position, he said: "Gradually I was forced to abandon the effort to persuade them to come to my way, and then I achieved results only by appealing over the heads of the Senate and House leaders to the people who were the masters of us both." He seems to express here the theory attributed to him in the North American Review when a writer in speaking of the powers of the President: first, to execute the laws, and second, "to recommend to the consideration of the Congress such measures as he shall judge necessary and expedient," said, "To this duty he [Mr. Roosevelt] has added a third, to influence public opinion in the present . . . . he not only executes the laws, he contributes to their making. He is both President and Prime Minister, the chosen head of the people and the acting head of the party."

Turning from the presidency to the governorship of our leading state, we find Governor Hughes probably the most distinguished example of insistence on the part of the governor that the best reasons must rule and that the executive has a perfect right to present his reasons forcibly why laws should not be enacted. "From the first days of his term of office at Albany he made it clear that his policy would be to seek from the legislature the passage of needed laws, but if this was refused, to go behind the legislature and appeal directly to the people. He followed this plan last year with the result that the obstinate legislature finally crumbled up meekly before him." This statement from The Nation is unhappy and likely to provoke those who in theory oppose such executive action to say, as did a writer in The Independent, "Thus Governor Hughes terrorizes and coerces the legislature."

In the case referred to, the governor acted well within his legal and constitutional rights. He was particularly concerned about the suppression of race-track gambling. The gambling fraternity was backed by an unlimited purse and supported a powerful lobby. The reformers who were fighting the evil were unorganized, inefficient, unpractical, and pretty sure of defeat if unaided by the governor. The legislature, at its regular session,

failed to enact the requisite anti-gambling laws. The state constitution provides that the governor may summon the legislature in special session and may limit its deliberations to those matters which are recommended to it by him. Governor Hughes therefore called back the legislature in special session and placed this one question so prominently before it that action was unavoidable. No one familiar with public affairs in the state was ignorant that there was a "fight" going on between the governor and the legislature about a matter of legislation. No one doubted the public demand for affirmative action. The shallower apostles of the separation of powers could easily be persuaded that in such a conflict there was danger to the spirit of our institutions. Practical citizens, however, spoke their minds to their representatives in no uncertain terms. The antigambling bill was passed. No one doubts that Governor Hughes forced the legislation through over the passive opposition and obstructive tactics of a majority of the legislature. The gamblers and the professional politicians raised the cry of "executive usurpation," but I believe it was never seriously proposed that this usurpation be tested by formal impeachment. It was only the "spirit of the constitution" that the governor had violated.

Some of the gentlemen who will exert considerable influence over the coming Constitutional Convention in New York State have expressed a hope that the convention will provide in the new constitution for some coöperation between the governor and the legislature. They suggest that the governor be authorized to go into the legislature with a drafted bill, defend it on the floor of the chambers, answer such questions as the members wish to put to him as to its desirability and practicability, and then require a vote upon it within a reasonable length of time. They do not ask for any exclusive control by the governor over the initiation of bills, or that he take any such part in the actual enactment of laws as he would take if he were empowered to vote. There is no thought of giving him any sort of control over the will of the legislature. What is the demand of these gentlemen? Simply that he be permitted to appeal to the reason of the lawmakers, and to ask that they

frankly express their decision without confusion or concealment. It is the power of initiative alone that is had in mind. That is not an exclusive power. When the proposal was presented to the public some time ago in an academic discussion, several metropolitan papers referred to it as the dream of amateur constitutionmakers. Editors wanted to know whether we were prepared to give up the splendid government bequeathed by our forefathers.

In this paper I address those of our fellow-citizens who really fear some unfortunate result from such overstepping of the line of separation of powers, some weakening of our constitutional system. My purpose is to show that critics are too apt to put an extreme interpretation on the doctrine of the separation of powers. They demand that it be carried out as it never has been carried out with success in any country,-as it was not meant to be carried out by "the fathers," and as the best reasoning prompts one to believe that it cannot be carried out without unfortunate consequences. In discussing the matter I shall present the origin and promulgation of the doctrine in the writings of Montesquieu; the relation of it to the organization of our constitutional system in America; the unfortunate results of its too rigid application in France; and the present result of its too rigid application in our system.

To discuss a theory of this sort impartially nearly always brings down upon the discusser the condemnation of both its advocates and its opponents. There is no doubt that much good has been done through a limited application of the theory. There is equally little doubt that whenever statesmen have followed it to a logical extreme they have been led into calamity. One might compare it to the theory of the division of labor. Industrial organization could never have reached its present high state of development without some application of this principle. Its too logical and detailed application, however, now tends to destroy the very human units upon whose welfare industrial prosperity depends. Despite the difficulty of walking this narrow way of compromise, I hope to be able to show that the separation of powers may be the guide to the security of liberty, and yet, if too slavishly followed, also the shield of corcuption and inefficiency.