IV

THE THREE DEPARTMENTS OF GOVERNMENT

How the Power of Government is Separated. The people of a free state will not confer all the power of government upon one person, or upon one body of persons. Experience has taught that it is better to divide governmental power into three portions, and to establish three departments of government, allotting to each department its own peculiar portion. The three departments of a popular government are: (1) The legislative department, upon which is conferred the power of making laws; (2) the judicial department, which is entrusted with the power of deciding how the law shall apply in particular cases when disputes arise; (3) the executive department, which is vested with the power of enforcing laws.

The Development of the Three-Department System. In the earliest times the king was legislator, judge, and executive: he made the law, he sat in judgment upon those charged with violating it, and he enforced the penalties against the guilty. Later, but still very early in the history of politics, the king began to share the power of government with a council of elders (p. 5). The council expressed the will of the state and the king executed what the council advised. Here was the first separation of governmental power. The growth of democracy in the ancient world brought a further separation. We find that in Athens as early as 500 B.C. there were lawmakers and judges and executive officers. It must not be thought, however, that in ancient times the three depart

ments were fully developed, and that each department was entrusted only with power of a certain kind. Athenian lawmakers sometimes did what only judges ought to do, and Athenian judges would sometimes do what only law-makers ought to do.

In the early history of England the folkmoot exercised legislative, judicial, and executive powers, but along with the development of representative government there was developed a system of distributing the powers to three great departments. Parliament confined itself chiefly to making laws, a class learned in the law acted as judges, and the king carried the law into effect. The lines that divided the three departments were not always clear, and one department frequently encroached upon another. In the seventeenth century a king (James I) ventured to sit on the bench as a judge, but his conduct was universally condemned. The protest which arose against the encroachment of James shows that Englishmen then had learned to draw the lines that should separate the departments, and in the struggle which followed it was settled that these lines should not be blurred or effaced. In 1765 the most celebrated expounder of English law (Blackstone) could say that in England the three departments of government were separate and distinct.

The Three-Department System in the United States. In America the lines which divide the three departments from each other are quite distinct and clear. In very few instances shall we find one branch doing what properly be-longs to another branch. When the founders of the republic distributed the powers to the three departments they took great care that judges should do only the work of judges, that legislatures should only make laws, and that executives should be concerned only with the carrying out of laws, and they placed around each department effectual barriers against encroachment by the other departments. And the policy of the fathers has been continued to the present time. In the United States political power is everywhere distributed

to three departments. This is true of the American government in all its gradations. In the government of towns and cities and States, as well as in the government of the nation, three departments are in operation, each doing a work that is peculiarly its own.

The Legislature. The most powerful and in some respects the most important department is the legislature, which expresses the will of the people in the form of laws. Almost every subject relating to the safety and welfare of society may come within the scope of legislative action. One of the most important powers of the legislature is to provide money by means of taxation for the support of government. In the United States it is a general rule that the legislative department shall consist of representatives elected by the people for short terms. The legislature does not sit in continuous session, but adjourns and disperses when the proper and necessary laws have been made.

The English parliament as originally constituted (1295) consisted of the representatives of four classes, (1) the nobility, (2) the clergy, (3) the knights, or representatives of the shires, (4) the burgesses, or representatives of the towns. Here was a legislature of four branches. Before the end of the fourteenth century the clergy were sitting and voting with the nobility, and the knights and burgesses were sitting and voting together. The four branches were thus reduced to two, the nobility and clergy constituting the House of Lords, and the knights and burgesses the House of Commons. In the colonies the English system of a bicameral legislature was quite generally imitated. Of the States formed at the time of the Revolution only three had legislatures of a single branch. At the present time the legislature of the nation (Congress) and the legislatures of all the States and those of most of our cities consist of two branches, an upper and a lower house. The upper house (often called the senate) usually consists of members 'A legislature consisting of two branches is said to be bicameral.

who are older than members of the lower house, and who are elected for longer terms. The lower house is, on an average, about three times as large as the upper house. A measure must always pass both houses before it becomes a

law.

Why is it necessary to have two separate bodies of men to pass a law? Experience, which has taught us so much about government, seems to decide in favor of two houses. Legislatures of a single house have been tried, and it has been found that they do not always act with sufficient deliberation. An anecdote related of Washington teaches very well the advantage of having two houses: Jefferson once, while dining with Washington, attacked the bicameral system as being clumsy and mischievous. Washington defended the American plan. "You yourself," he said, " have proved the excellence of two houses this very moment." "I?” said Jefferson, "how is that, General?" "You have," replied Washington, "turned your hot tea from the cup into the saucer to get it cool. It is the same thing we desire of the two houses." When a law must pass in two branches there is an opportunity for that sober second thought which is so valuable in every sphere of action.

The Judiciary. Violations of law will occur; disputes will arise between men as to their rights under the law; questions as to the meaning and scope of a law will be raised. The power of trying offenders and of settling controversies between contending parties and of interpreting the meaning of the law is lodged with the judicial branch. The work of the judge is confined to the cases that are brought before him. If no cases are brought, then he has nothing to do. The judges are usually chosen by the people, although they are sometimes appointed, either by the executive or by the legislature. Historically, they are really representatives of the people, for they pronounce the justice which was originally dispensed by a popular assembly. It has become the practice of all nations to select for the judiciary men who

are skilled in the law, and who by temperament and character are competent to render just and lawful decisions.

The Executive. The enforcement of the laws made by the legislature, and the decisions made by the judiciary, and the preservation of peace and order are the functions of the executive branch. In this department reposes the physical force of the State. The executive has at its command armies and navies and will use them if necessary. In republics the chief executive officers are elected by the people. Executive power in modern times is usually vested in one person-a president, a governor, a mayor, a prince, a king, an emperor. The executive very frequently has the power of vetoing an act of the legislature, but the veto usually can be overcome by a two-thirds vote. The veto power is plainly a legislative power.

Independence of the Departments. Under our system each of the departments is quite absolute in its sphere, and quite independent of the other two departments. If one department seems to another department to be going wrong the latter will refuse to coöperate with the former, and thus obstruct its action. Thus if the legislature passes an act which in the distribution of powers the judiciary thinks it has no right to pass, the judiciary may hold the act to be null and void as soon as a dispute arising under the act is brought before it. If the judiciary presumes to exercise powers that do not properly belong to it, the legislature may by appropriate laws check the usurpation. If the executive goes strongly counter to the wishes of the legislature the latter may refuse to vote the money that is necessary to conduct executive business and thus stop the wheels of government. Thus by a system of nicely balanced powers and effective checks the independence of each department is secured.

The maintenance of this system of "checks and balances" is a perpetual task of citizenship. If the people