II.

The origin of the idea of a separation of legislative, judicial, and executive powers is attributed, and justly, to Montesquieu, and it doubtless resulted from his study of the English government. It is true that Aristotle recognized a division of political powers as a convenient analysis, and discusses them separately in his Politics; but he makes no argument for a separation of them. Locke, who published his famous Two Treatises on Civil Government in the year of Montesquieu's birth, 1689 (just a century before the extreme application of the doctrine in France) goes a step further. He says of the doctrine: "In well-ordered commonwealths, where the good of the whole is considered as it ought, the legislative power is put into the hands of divers persons who, duly assembled, have by themselves, or jointly with others, a power to make laws, which, when they are done, being separated again, they are themselves subject to the laws which they have made; which is a new and near tie upon them to take care that they make them for the public good.

"But because the laws that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereupon, therefore it is necessary that there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated."

Montesquieu was a nobleman of unusual opportunities and powers who gave a large part of his life to travel, study and reflection. He was a philosopher, and his Spirit of Laws, in which our doctrine received attention, is his greatest work. To it all students of political science turn; from it proceeded an impulse, the results of which can be accounted for only by reference to the sensitive epoch in which it was given. Rationalism was then the order of the day. Men tested all problems by abstract reason. Rousseau and his followers ignored precedent, experience, custom, habit; or swept them aside with the grand gesture of our modern theorists; crying, "Facts! experience! what have I to do with these? I have a grand idea.”

Montesquieu was wiser than his generation, and drew his notions from the real world. He wrote of what he saw around him. He sought for better government as actually manifest in practical politics, not in abstractions. "One nation there is also

in the world," he says, "that has for the direct end of its constitution, political liberty. We shall presently examine the principles on which this liberty is founded; if they are sound, liberty will appear in its highest perfection. . . . . To discover political liberty in a constitution, no great labor is requisite. we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it." He found it in the English system of government. He described it as follows:

If

The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted that one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Our author wrote so epigrammatically and so briefly that it is somewhat difficult to determine his exact meaning. To do so we must examine the environment in which he lived while in England. Does he mean that in England these powers were separated by a line so sharply drawn that no coöperation between the organs of government was possible? I think not. Let us inquire.

Montesquieu was in England from the autumn of 1720 until the spring of 1731-a part of a transitional period in English constitutional history. One is disposed to think all periods of constitutional history transitional; but this one is particularly elusive, and there is considerable difference of opinion among the best observers as to its real nature. Walpole was just reaching the height of his power. Townshend, his chief rival, was turned out of the ministry in 1730, and in 1733, at the time of the excise row, Chesterfield followed Townshend. There can be no doubt that Walpole was the real ruler of England during

Montesquieu's visit; and that he, Walpole, had the Commons with him. It may be true, as Dr. Johnson said, that "Walpole was a minister given by the king to the people; Pitt was a minister given by the people to the king"; but ministerial government was rapidly taking shape in England under the very eyes of the Georges who could not see it, and would have contested its every step had they seen it. It must have been pretty well on its way, moreover, when a man of the temperament of George II could say to a minister as he did to Walpole, "I will order my army as I see fit; for your scoundrels of the House of Commons, you may do as you please; you know I never interfere, or pretend to know anything about them." But the evolution was still far from complete. Although the title Prime Minister was often applied to Walpole, it was applied not with respect, but rather in irony, and he objected to it most strenuously, with the shrewdness of an Augustus. He did not govern by his position of first minister; he governed, and he knew it, by weight of ability and personal favor,-aided no little by corruption.

Now it is a very common remark that Montesquieu did not understand his England, and this statement is based on the fact that he did not describe a parliamentary executive. Mr. Collins thinks Montesquieu "was evidently ignorant of the tactics of Walpole and could hardly have been behind the scenes in English politics." Mr. Dicey says "Montesquieu misunderstood on this point the principles and practice of the English constitution." One does not lightly suggest that Mr. Dicey is in error in a matter of English constitutional history, but one is certainly confused by an array of facts which seems to contradict his statement. If one concedes that Montesquieu was in error, one must say the same of Blackstone, who, writing about the year 1758, says, "With us, therefore, in England, this supreme power is divided into two branches: the one legislative, to wit, the parliament, consisting of king, lords and commons; the other executive, consisting of the king alone." This Mr. Dicey calls a "lawyer's view" in antithesis to the view of the practical politician.

Montesquieu evidently thought he was describing a state in

which there was some separation of powers. Evidently some of his contemporaries, and these no superficial observers, thought as he did. In theory, at least, there was then a considerable separation of powers. But the fact is that Walpole was permitted by the king to direct the legislation of the realm. Two different views are here possible. Montesquieu was either mistaken in his observations, and really meant that a complete separation of powers is in general a necessity, basing this upon the theory as held in England; or he meant that a partial separation was desirable, basing his views on the facts.

Whatever were his views on this matter, we cannot accept them as inspired, for we should certainly decline to accept some of his other views. He provides for an upper chamber of the legislature with only hereditary nobles, forming "a body that has the right to check the licentiousness of the people." He holds that "The executive power ought to be in the hands of a monarch [presumably hereditary]; . . . . the legislative power ought not to have the power of arraigning [impeaching] the person, nor of course, the conduct of him who is entrusted with the executive power. His person should be sacred, because it is necessary for the good of the state to prevent the legislative body from rendering themselves arbitrary. The moment he is accused or tried, there is an end of liberty." One is almost amused, in the light of recent political evolution, to find him saying, "Were the executive power to determine the raising of public money, otherwise than by giving consent, liberty would be at an end because it would become legislation in the most important point of legislation." Limited monarchy was his

ideal; with democracy he had no patience.

It is manifest that Montesquieu grasped clearly Aristotle's idea of division of powers. His philosophical mind developed a system in which these powers should be separated from each other. He doubtless read Locke; he observed closely the conditions which surrounded him, and thought he had found a separation of powers more or less consistently effected. There is no doubt of the truth of his statement that "There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise these three

powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of the individuals." This fundamental and simple doctrine was taken up and spread abroad by the multitude of pamphleteers of the latter half of the eighteenth century; it became more sacred than the divine commandments, and found its pharisees as unreasoning and formal as any other commandment.

III.

Now let us turn to

So much for the origin of the doctrine. its practical application. I would emphasize the word practical, because later on we shall have to refer to its unpractical application and its abuse. As we have indicated, the doctrine is just as useful in the field of politics as is that of the division of labor in the field of economics. Both doctrines are hurtful if applied with too determinate and logical consistency. One finds in America the first practical application of the theory. Whatever separation of powers Montesquieu may have found in England, it was not the result of any theory or the application of any abstract principle. The English government is further from logic than from anything else; its apostles are pragmatists, not to say opportunists, and they do what the practical affairs of the day demand with businesslike readiness and adaptability. In France the doctrine had secured foothold enough before its adoption in America, but only among theorist. The ferment that finally burst into eruption in 1789 was until that year kept in the realm of speculation by a centralized, unified, almost absolute, monarchy. It was to England and to the United States that France looked in 1789 for examples of the application of the doctrine.

America had in the period from 1776 to 1789 become a veritable experiment station of political principles and theories. At least fourteen new governments had been set up, and several of these had already undergone changes after the first experiIn this process English and colonial practical experience had been somewhat weirdly mingled with French dogma and theory. Some Americans held that the English government was characterized even in that day by a separation of powers,

ment.