Delphi Complete Works of Stephen Leacock, page 434
But the most important of all present methods of constitutional revision is by a more direct action of the people than any of the plans mentioned above. The calling of a representative convention elected expressly for the purpose of making a constitution may be looked upon as the typical American system; such a constitution is in nearly all cases submitted to ratification by popular vote. Constitutions promulgated directly by the conventions themselves (as for example in South Carolina, 1895, and in Delaware 1897), are nowadays quite exceptional. It is especially interesting to compare with the process of amending the Constitution of the United States the methods of revision existing in the federal governments of Switzerland and the commonwealth of Australia. In Switzerland (constitution of 1874) a constitutional amendment passes through both houses of the legislature, a simple majority being sufficient, and is then submitted to the vote of the people; it must be ratified by a majority not only of the votes but also of the different cantons that form the confederation. It is further provided that a demand for a revision of the constitution made by either branch of the legislature, or by the petition of fifty thousand voters, must be followed by a popular vote on the desirability of undertaking a revision. The method of amendment adopted under the federal constitution of Australia is closely similar. Proposals for amendment are made in the legislature, and after passing both houses by an ordinary majority are submitted to the people. To be adopted they must obtain a majority of the votes cast as a total and be carried in a majority of the states.
READINGS SUGGESTED
Aristotle’s Politics (Jowett’s translation, 1885), bk. iii.
Willoughby, W. W., The Nature of the State (1896), chap. xiii.
Borgeaud, C., Adoption and Amendment of Constitutions (translation, 1895), part i.
FURTHER AUTHORITIES
Gareis, Allgemeines Staatsrecht (Marquardsen, Handbuch des Oeffentlichen Rechts).
Woolsey, T., Political Science (1878), vol. i.
Curtis, G. T., Constitutional History of the United States (1896).
Fiske, J., Critical Period of American History, 1888.
Bluntschli, J. K., Theory of the State (1885).
Sidgwick, H., Elements of Politics (1897).
Dunning, W., History of Political Theories Ancient and Mediæval (1902).
Plato, Republic, bk. viii.
Stevens, C. E., Sources of the Constitution of the United States (1894).
Schouler, J., Constitutional Studies (1897).
PART II. THE STRUCTURE OF THE GOVERNMENT
CHAPTER I. THE SEPARATION OF POWERS
1. NATURE OF Executive, Legislative, and Judicial Power. — 2. Theory of the Separation of Powers; Montesquieu. — 3. Influence of this Theory in America and France. — 4. Extent of its Application in Existing Governments. — 5. Continental Administrative Law. — 6. General Criticism of the Theory of the Separation of Powers.
1. Nature of Executive, Legislative, and Judicial Power. In the first part of the present volume we have been concerned with the discussion of government as a whole, and with the relations of the entire machinery of the state to the individual. The purpose of this and the following chapters is to analyze in detail the structure of government. For this a starting-point is found in the division of governmental powers between legislative, executive, and judicial bodies. Every government that occupies more than a quite primitive or limited sphere finds itself called upon to perform duties of a varying nature. There is, for example, a very evident difference between the functions exercised by a member of a legislature, those of a revenue officer, and those of a judge. In the first place the government has duties to perform that are legislative and consist in the making of laws; a parliament, a city council, or a constitutional convention is a legislative body. This function, though of scant importance in primitive society (in which the idea of deliberate lawmaking is hardly known), is of vast importance and a matter of constant necessity under the complex conditions of modern life. In a certain sense, inasmuch as the making of the law is logically antecedent to its execution and to decisions as to its meaning, the legislative function is the chief of the powers of government. “The legislative power,” says Judge Story in his “Commentaries on the Constitution,” “is the great and overruling power in every free government.” Looked at in a purely theoretical light, the executive function of the government (the carrying out of the law) appears in a quite mechanical and secondary aspect. In point of fact, however, the functions of the executive branch of the government are of great importance. No matter how explicitly laws are made, they must of necessity leave a wide discretionary power in the hands of those who enforce them; in many matters — most notably in relations with foreign states — the executive branch of government must act without explicit instructions, and is no longer to be regarded as merely the agent of the legislative branch of the government. The organized physical force — armies, navies, police, etc. — is at the command of the executive, — is, in a sense, a part of the executive. It is with the executive (in the shape of police, revenue officers, postmasters, etc.) that the individual citizen is chiefly in contact. Indeed in any modern government the executive, even apart from the army and navy, vastly outnumbers the two other branches. The executive civil service of the United States includes over 300,000 positions; there are less than 140 federal judges and only 476 members of Congress. The judicial organs of a government, whose function it is to pronounce as to the application of the law to existing cases, though like the executive theoretically inferior to the legislature, exercise in reality a function of the greatest consequence to the citizen, and, in the case of the United States, a function of a peculiar constitutional importance.
2. Theory of the Separation of Powers. At the beginnings of modern democratic government, and in particular in the political writings of the eighteenth century, it was a cardinal doctrine of political science that these three branches of government, the legislative, the executive, and judicial, should be kept separate from one another. A different body of persons was to administer each of these three departments and neither body was to have a controlling power over either of the others. It was thought that in this way a peculiar guarantee, indeed the only adequate guarantee, might be given to public liberty. This is what is known as the theory of the separation of powers. It is not meant that this theory was altogether new in the eighteenth century. We find traces of it as far back as Aristotle; and Polybius in the sixth book of his “History of Rome,” in which he treats of the Roman constitution, describes in detail and with approval the balanced powers intrusted to the senate, the consuls, and the tribunes. It was natural, however, that with the decline of monarchical absolutism and after the great object-lesson of the English revolution of 1688, constructive theories pointing towards possibilities of popular sovereignty should receive especial attention. At the hands of Montesquieu, author of the “Spirit of Laws” (1748), the theory met with a definite and emphatic presentation, destined to give it a lasting influence on subsequent political institutions. “If the legislative and executive power,” says Montesquieu, “are united in the same person or in the same body of persons, there is no liberty, because of the danger that the same monarch or the same senate may make tyrannical laws and execute them tyrannically. Nor again is there any liberty if the judicial power is not separated from the legislative and the executive. If it were joined to the legislative power, the power of the life and liberty of the citizens would be arbitrary; for the judge would be the lawmaker. If it were joined to the executive power, the judge would have the force of an oppressor.” A similar judgment is expressed by the great English jurist, Blackstone, in his “Commentaries on the Laws of England” (1765). “In all tyrannical governments the supreme majesty, or the right both of making and enforcing laws, is vested in the same man or one and the same body of men; and when these two powers are united together there is no public liberty.” Both of these authors are led to the statement of the theory of distributed powers from their analysis of the British constitution. At the time at which they wrote the cabinet system was only in the earlier stage of its development. The junction of both the virtual executive and the legislative power in the hands of a cabinet or committee chosen out of the legislature was not the evident fact that it is to-day. A British ministry of Montesquieu’s time was still not a unit: it allowed of divergence of opinion among its members; nor did the latter all take office or leave it at the same time. Montesquieu, therefore, somewhat excusably overlooked what has since become the leading fact of the British constitution, and thought to see in it a balance of power effected between the king and the two houses of Parliament, neither of whom was supreme over the other, and from each of whom the judiciary was to a large extent independent. Blackstone, viewing the constitution only as a lawyer, knows nothing of a cabinet. The ministry as known to the law even at the present day are the appointed servants of the crown. The fact of their political unity and membership of the legislature is only a matter of custom, not of law.
3. Influence of this Theory in America and France. The doctrine of public liberty effected by distribution of power became thus almost an article of faith with political writers of the eighteenth century. The fact was of vital importance for the history of the United States. At the time of the establishment of the state governments the doctrine was put into practice by the separation, not of course complete, but yet far reaching, of the different branches of the government. The independent election of state governors and legislatures, the absence of the power of dissolution, were embodied in the state constitutions, and have remained as fundamental parts of the American system of government. That the adoption of this plan was conscious and deliberate is seen in the often quoted passage of the Massachusetts constitution of 1780 (part i, art. xxx): “In the government of this commonwealth, the legislative department shall never exercise the executive and Judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”
The same theory exercised the greatest influence over the convention of 1787, in which the federal constitution was framed. Its members recognized, indeed, the need for a modification of the rigidity of the doctrine of separation, but in the main they accepted it and made it the basis of the Constitution of the United States. “The accumulation of all powers,” says the “Federalist” (the set of essays written in defense of the Constitution by Hamilton, Madison, and Jay), “legislative, executive, and judicial, in the same hands, whether of a few or many, and whether hereditary, self-appointed, or elective, may be justly pronounced the very definition of tyranny.”
The fact that even the state constitutions of 1776 and 1777 and the federal constitution of 1787 do not adopt an absolutely complete separation of powers of government, naturally suggests the question in how far such a separation would be possible, and what would be implied by a complete adoption of the principle. It would mean a constitution constructed on such a plan as the following: A legislature elected directly by the people, a set of executive officers either elected by the people (independently of the action of the legislature) or appointed by some person or body of persons elected by the people; judges similarly elected and independent as to their tenure of office and emolument of both the legislature and the executive. Even then it might be questioned whether the liability of executive officers to be tried before the judiciary for breaches of official duty or violation of their legal powers, would not be at variance with a logically complete separation; this, however, will be considered later in dealing with the administrative law of Continental Europe. But granting such a separate election and independent tenure of office on the part of the three departments of government, there would still remain a sense in which the separation would not be complete, in which indeed it can never be complete without a reductio ad absurdum. The law enforced by the executive and adjudicated on by the courts would still be the law made by the legislature. It is to be noted also that such law might conceivably be extremely tyrannical and unjust. The executive and the judges would still have to apply it, and thus the separation of power in and of itself would offer no guarantee of individual liberty.
The theory of separation obtained during the revolutionary era in France an influence no less marked than in the United States. The constituent assembly of 1789 adopted it as a fundamental principle in their construction of a new government. The sixteenth article of the formal Declaration of Rights with which they prefaced their constitution, declares, “Every society in which the separation of powers is not determined has no constitution.” In accordance with this general principle, the constitution established a legislature not dissolvable by the king, forbade the ministers and other executive officers to hold seats in the legislature, gave to the king no right of initiative, and only a partial veto power, and instituted judges elected by the people. The later constitution of 1795 modified the separation by instituting a plural executive, — the Directory, elected by the legislature itself.
4. Extent of its Application in Existing Governments. In the course of the nineteenth century the theory of separated powers has lost a great deal of its former credit. The conspicuous example of the British constitution invalidates it as a universal proposition. Here the development of the cabinet system since Montesquieu’s time has thrown the virtual direction of both legislative and executive power into the hands of the same body of men. Yet it would be absurd to say that public liberty in the United Kingdom has thereby been sacrificed. As the British constitution now stands, the group of eighteen or twenty persons who compose the cabinet have the conduct of the executive government. They also direct the course of legislation, since a majority of the predominant part of the legislature — the House of Commons — are prepared to support their measures. Should they lose that support they resign their office. Thus the very contrary of the idea of divided powers seems to be the case. The executive officers remain such only so long as they retain the legislative power. The legal theory of the constitution, on the other hand, still offers the spectacle of more or less opposing powers mutually balanced, — the king and his ministers (appointed, in the theory of the law, according to his pleasure, and being merely his servants) conducting the executive government, while the houses of Parliament make the laws. The analysis of the British government given by Walter Bagehot, the distinguished economist and essayist, in his “English Constitution” (1867), has served to show how completely the development of cabinet government has rendered the earlier view of the British constitution inapplicable to the present situation. In certain other respects the British constitution offers in actual fact some features of distributed powers, the most notable being that of the tenure of office of the judges, who are made virtually independent by being appointed for life or good conduct.
Nor is there a separation of powers observed in the present parliamentary governments of France and Italy. In France the president is elected by the legislature. His ministers are, in practice, though not in law, the representatives of a majority in the Chamber of Deputies. In the same way the king of Italy governs by means of a party ministry. In Germany, in the actual working of the federal constitution, the powers of government are not distributed. The German emperor holds the executive power of the federation. In his capacity of king of Prussia he has also a very great share of legislative control. In the first place there are many measures — those introducing any change of existing regulations concerning the army, navy, customs, and excise — which cannot be enacted without the consent of his appointed delegate in the Bundesrath or upper house of the legislature. Through the same channel he enjoys an initiative power for any kind of legislation, the control of seventeen out of fifty-eight votes in the Bundesrath, and a veto upon constitutional amendments.
