were not sufficiently distinct on account of the executive functions given to the Senate and the veto power lodged in the President. These objections were answered in the Federalist by the statement that the doctrine only meant "that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted;" that this was shown by the practice in Great Britian and the several States; and that a certain mixture of the powers was essential in order that each might be able to guard itself against the encroachments of the others.8

The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or, to use his own expression, as the mirror of political liberty, and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system.9" In the century which has since elapsed, by the firm establishment of a system of cabinet government in Great Britain, the legislative and executive powers have become blended. "We have thus an extraordinary result. The nation whose constitutional practice suggested to Montesquieu his memorable maxim concerning the executive, legislative and judicial powers, has in the course of a century falsified it. The formal executive is the true source of legislation, the formal legislature is incessantly concerned with executive government." 10 And this practice has gradually spread into all countries where civil liberty is enjoyed, except a few like Germany, in which there is still a conflict between the crown and the people, and perhaps two or three countries in Central and South America besides the United States, where the presidential form of government prevails.

A few of the later writers on political science are now disposed to question the soundness of the doctrine of Montesquieu.11 Here,

the true basis of a well-constructed government." (Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 327.)

The Federalist, No. xlvii. 8 Ibid., No. xlviii.

xlvii.

Madison in The Federalist, No.

10 Maine, Popular Government, p. 239.

11The separation of the executive

however, there are no signs of its abandonment by the people ; and the wisdom of the changes elsewhere it remains for the future to determine.

§ 44. Reasons for the Separation of the Three Powers.

The reasons assigned for the separation of the legislative, executive, and judiciary, are that they cannot be combined without the creation of an arbitrary government. That the authority to make an act a crime, to condemn for its commission, and to execute the sentence, when united in a single man, make him a despot, and that human passions are too strong to keep him from an abusive use of such strength, are universally admitted, without the need of any reference to history. That when these powers are vested in one body of men, that body usually degenerates into a mob, unrestrained by any considerations of justice or moderation, is less generally recognized, because the instances are rarer; but it is usually conceded, not only by students of the histories of the democracies of Greece, but by those who have any knowledge of the proceedings of the Long Parliament and the National Convention. Their excesses are the things which have brought discredit upon government by the people. They caused the reactions which set up innumerable tyrannies among the ancients; which restored the Stuarts, and, when they were again expelled, made the English nation import foreign kings; which, twice within the century, have made the French people voluntarily submit to an emperor; and which make many of the most intelligent of our own day still believe that no republic can endure.

These dangers were observed and described by Montesquieu before the history of his own country reinforced his illustrations. And the continual encroachments which those vested with one power seek to make upon the others are even more apparent now than then.

In earlier times, the executive was the strongest. He in most countries succeeded in destroying the legislature, and made the

power from the legislative is a dream, though Montesquieu has established the belief that it is one of the great securities of liberty." (Goldwin Smith in The Bystander, Toronto, May, 1880,

p. 64, quoted by Doutre, Constitution of Canada, p. 68.) See also Wilson, Congressional Government, pp. 285, 306, 311; Stevens, Sources of the Constitution of the U. S., 1st ed., p. 47.

judiciary subservient to his will. In Europe, during the nineteenth century, the legislatures have been the invaders. Through their power to refuse supplies to carry on the government they have nearly everywhere destroyed the authority of the executive; and in those countries where they have the power to remove the judiciary, they must inevitably prevent its imposing any obstruction to the immediate accomplishment of their arbitrary will. In the United States, the three departments still remain, each in full force, as checks and balances upon each other; and equilibrium, with a few variations, seems to have been maintained.1

§ 45. Equilibrium of the Three Departments in the United States.

Of the three departments, the strongest is the legislative, and the weakest the judiciary. The legislature has the control of the purse, and can starve the other two by refusing them the supplies with which to carry on the government, or even to support themselves. The executive has the power of the sword. He can command the army to compel obedience to his will. By this means, in former centuries in Europe, and in parts of South and Central America to-day, that department has absorbed most of the functions of the other two. The judiciary has merely the power to register its decrees, with a declaration of the reasons for its action. It can only enforce them by the aid of an executive officer.1

Congress is chosen by the people at biennial elections, so that a majority of the lower house nearly always represents the people's wishes. The President is elected every four years by what is in effect a direct popular vote, and consequently nearly always represents the wishes of at least a large minority. The judges are appointed by the President and Senate, and hold office, unless impeached, for life. So they may represent the opinions of a party which has passed out of existence, and have no sympathy with the prevailing doctrines. Yet they have had many conflicts with the other departments of the government, and in all but four have triumphed. Three of these were with the executive with whom

§ 44. 1 See, however, § 45, note 11. § 45. The marshal, who is appointed by the President and Senate.

Judgments of the State courts are usually executed by the sheriff, who is an elective county officer.

the legislature was in sympathy: the Cherokees' cases, where the President sided with the State of Georgia, and refused to enforce the Federal process; 2 Merryman's case, where the army refused to obey the writ of habeas corpus issued by Chief-Justice Taney, in which, however, there was no expressed concurrence by his judicial brethren; and the Legal Tender cases, where, by the appointment of two new justices, he obtained the overruling of a decision that a former act was unconstitutional. The fourth was

with the legislative alone, then in conflict with the President, but with a majority of the legislature so large that it had the power of impeachment; when a decision in the McCardle case against the constitutionality of the Reconstruction acts was prevented by a repeal of the statute which gave the court jurisdiction. All of these cases but the first, however, were in times of war, or immediately after the close of war, during what was practically a time of revolution. The judiciary has since regained its strength and courage, and now the jurisdiction exercised by the State as well as the Federal courts without question is greater than that previously reposed in any tribunal in the world. The last volume of the reports of the Supreme Court of the United States contains the record of their successful assertions of greater power to interfere with the civil administration of the States, and with the taxing power of Congress,8 than was ever exercised before.

So elsewhere, the executive, wherever civil liberty has prevailed, has been unable to resist the assaults of the legislature, and the threat to withhold the supplies has in the present century been efficacious to compel acquiescence in the wishes of the people's representatives.9 President Johnson was similarly coerced in his conflict with Congress, and compelled to assent to an appropriation bill with sections which infringed the constitutional powers of

2 Worcester v. Georgia, 6 Peters, 515. This will be explained later under the Judicial Power.

3 Ex parte Merryman, Taney, 246. 4 Legal Tender Cases, Knox v. Lee, 12 Wall., 457. See infra.

5 Ex parte McCardle, 6 Wall., 318; s. c. 7 Wall., 506; supra, § 38, over note 179.

6 Supra, § 38, over note 202.

7 In re Debs, 158 U. S., 564.

8 Pollock v. Farmers' Loan and Trust Co., 158 U. S., 601.

9 There are two apparent exceptions: Prussia in 1866 and Denmark at the present time; but it can hardly be said that civil liberty then existed in either.

his office, and the reserved rights of the States.10 He, however, was never chosen by the people to be president, but was a vice-president elevated by the pistol of an assassin; and consequently had not the public confidence reposed in an officer who discharges duties which the people have elected him to perform. When a similar attempt was made to force one of his successors, Hayes, to sign appropriation bills with clauses containing legislation of which he disapproved, the President, although the previous Congress had refused to vote the needed supplies, returned bill after bill with veto messages; threatened successive extra sessions until the government received the funds necessary for its maintenance; and after a protracted struggle, public opinion compelled the legislature to yield. The President of the United States now exercises, with the approval of the people, more power than any constitutional king in the world. No President has paid less respect to the wishes of Congress than Grover Cleveland during both his administrations; and the people, when they chose him President for his second term, signified their satisfaction with such conduct. Yet at the same time, in matters which appertained to their province, he has more than once been obliged to yield his opinions to the legislative will. Thus at the end of the century we find that the three departments still retain their balance, each with its prerogatives unimpaired.11

10 14 St. at L., p. 486; supra, § 38,

over note 94.

11 Some writers maintain that Congress has encroached permanently upon the other departments. See Lodge's Webster, p. 230; Centennial Address of Mr. Justice Miller. Professor Woodrow Wilson, also, in his interesting work on Congressional Government, claims that the doctrine of the independence of the three departments is, borrowing the words of Bagehot, "the literary theory of the Constitution"; and that, in fact, Congress is supreme (pp. 10-12, 36-40 and passim). He cites, however, no proof of this, except the legal-tender cases.

He admits that the power of Congress over cabinet officers is less now than at the institution of the government (p. 257). He says, concerning its control over the administration (p. 271): "Congress stands almost helplessly outside of the departments; " and (p. 297): "There is no similar legislature in existence which is so shut up to the one business of law-making as is our Congress" (see also pp. 302 and 311). And his whole work seems to be a vigorous argument in favor of giving to Congress power to break down the executive rather than a demonstration of the position that that power has been already obtained.