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V.-THE TRIPARTITE DIVISION OF THE POWERS OF
“The fundamental constitution of the English government,” says Montesquieu, “is that the legislative body, being composed of two parts, one checks the other, and both are checked by the executive power, which in turn is also checked by the legislature." “There is no liberty,” he continues, “if the power of judging be not separated from the legislative and executive powers." *
“The tripartite division of powers,” says Laboulaye, “is avowed in all the constitutions of the last eighty years. An essential element of liberty is that the legislative, executive and judicial powers should be separated." +
In the individual, the judicial or deliberative faculty generally acts previous to the legislative or rule determining faculty; then, when plans are matured and laid out, the execution of them follows. This separation or analysis of individual action, however, is a work of subsequent observation, of no very important aid to the individual. On the contrary, it is to most persons such a discovery as was that of the * “Spirit of Laws," vol. i., book xi., ch. 6. . Constitution of U. S., in Histoire des Etats Unis, vol. iii.
, man who had learned with surprise that he had been speaking prose all his life without knowing it.
As these three faculties united in the individual may form a noble, generous man, so a despot, exercising the three departments of government, might be an excellent ruler. “But nothing,” says Laboulaye, “is such a corrupter as power.” History has shown the need of dividing power, so as to restrain its corrupt use. Montesquieu, in his famous chapter on the English constitution, written 1748, was the first Frenchman who pointed out the importance of this separation and its value to English liberty. “If the same individual,” says he, can make the laws as a delegate of the nation, apply them as judge, and execute them as sovereign, then this man is a despot, and all
is lost." *
What more perfect definition of despotism can we have than that it is sovereignty concentrated into a single hand? A despot is a man who does everything without rendering an account to any one. †
Blackstone and Paley recognized the truth of Montesquieu's observation, and in the United States it has been a universally accepted doctrine that the separation of the three powers is essential to liberty. Still, this theory of the tripartite division of powers is not carried out strictly in practice.
In England, the King forms a part of Parliament, no law being made without his approval. The veto of the King has not been exercised since the reign of Queen Anne; still, through the Prime Minister, the laws all receive the approval of the King or Queen. Parliament controls the administration, by compelling it to resign unless it agrees with a majority of the Commons, but the Prime Minister has his seat in the House of Commons, and is heard on every important
* Spirit of Laws, vol. i., bk. xi., ch. 6. † Laboulaye, vol. iii., p. 289.
The Commons impeach, and the Lords sit in judgment upon the acts of high officers of government, and English judges proclaim that to be law which never received the approval of the legislature.
With us, too, the three departments are blended. The suspensive veto * of the President gives him legislative power, and the precedents of our courts are our laws.
The Senate, too, is part of our executive power, since its consent is necessary in the appointment of many executive officers.
Thus, we see that political theories are not to be treated as mathematical axioms. The beneficial separation of the three powers, consists really in each having its province, but not in each being isolated. Separate, but each a check on the other. The President, with his veto, restrains Congress, which, in turn, can impeach the President, and the Judiciary can . make void the illegal work of the other two powers ; the Judiciary, in turn, liable to impeachment.
The tripartite division of the powers of government, then, is observed to be of some value, and is a separation that consists in not placing the legislative, executive and judicial powers all in the same hands; while this ought not to hinder the executive from taking a part in legislation, the latter from influenc
* Const., art. i., sec. 7.