Separation of Powers
CHAPTER 10|Document 18
Nathaniel Chipman, Sketches of the Principles of Government 120--271793
There are very obvious reasons, why these powers should be committed to separate departments in the state, and not be entrusted unitedly to one man, or body of men. Different abilities are necessary for the making, judging, and executing of laws. They require the exercise of different powers, faculties, and knowlege. No one man ever had a sufficient extent of abilities, or versatility of genius, to attend to the duties of all, at one time, or in a quick succession. Such a union must frequently occasion a confusion of principles, and remediless violation of rights. To commit their exercise to a single man, or body of men, essentially constitutes a monarchy, or aristocracy, for the time being. By giving them the power of avoiding all constitutional enquiry, it places them above a sense of accountability for their conduct. They have it in their power, either in the enacting, the interpretation, or the execution of the laws, to skreen themselves, and every member of their body, from account or punishment. The situation itself suggests to them, views and interests, different from those of the people, and leaves no common judge between them. It places them, in respect to the people, in that state of independence, which is often called a state of nature. In such case, the people, hopeless under oppression, sink into a state of abject slavery, or roused to a sense of their injuries, assume their natural right, in such situation, oppose violence to violence, and take exemplary vengeance of their oppressors. In a government so constituted, the frequency of elections, can only aggravate the evil. The rulers, with all the powers of government in their hands, will find every instrument of corruption and factious violence devoted to their service. They will always have a hope of continuing themselves in administration. Should there happen a change of men, a change of measures, if attempted, would be of short continuance; the same situation, and the same motives, would, sooner or later, produce the same fatal effects.
To enter on a public investigation of the conduct of their predecessors, would be to set an example against themselves.1 In such a confusion of powers, should any regular attempt be made to call the rulers to account, the immediate agents, and the immediate causes of the evils, would prove of difficult investigation. Mutual recriminations and powerful intrigues, would generally divert the enquiry from the proper objects, and devote only the innocent or the feeble to the vengeance of the law.
A separation and precise limitation of the legislative, judiciary, and executive powers, with frequent, free, and uncorrupted elections, is the only remedy for these evils. Those who exercise the legislative power, must be subjected to their own laws, and amenable for a violation, equally with the plainest citizen. They must, by the express provision of the constitution, be confined to the consideration of general laws, and forever excluded the right of enacting particular penalties, privileges, or exemptions. Such partial laws are the first beginnings of an attack on the equal rights of man, and a violation of the laws of nature. This provision, however, should not extend to prevent the establishment of companies, by act of legislation, for the purpose of transacting certain business, or of prosecuting certain enterprises, to which the powers of individuals, from the nature of the thing, are incompetent. In the establishment of companies for such purposes only, a new power is created, but the right of no individual is infringed. Neither should it extend to a prohibition of forming laws for the encouragement of useful knowlege. Authors of books, by which useful knowlege is disseminated, and of those inventions, which facilitate the labors of life, are entitled to the fruit of their own industry, and of the application of their powers, equally, with other citizens. But such is the nature of their productions, that, without a legislative interference in their favor, they must remain wholly at the mercy of others.
The legislature may proceed to the declaration of tyrannical laws; the judiciary to the pronouncing of unjust decisions; the executive furnishes the immediate instruments of tyranny and injustice. The executive is, in all cases, the ultimately efficient power. It is, therefore, very necessary, that the executive should be limited, with as much precision, as the nature of the power will permit, and the acts of all its ministers, rendered as conspicuous, as may possibly be, or, at least, of easy investigation, and the ministers themselves made amenable to the ordinary, or constitutional tribunals, for every abuse.
To prevent both legislative and executive abuses, the intervention of an independent judiciary is of no small importance. To the judges, the ministers of this power, it belongs to interpret all acts of the legislature, agreeably to the true principles of the constitution, as founded in the principles of natural law, and to make an impartial application, in all cases of disputed right. By this provision, the rights and interests of the legislative and executive branches will be kept in union with the rights and interests of the individual citizens. All will be equally exposed by the same unjust laws, or amenable for an arbitrary execution. The members of the legislature, cannot, from the nature of their functions, be amenable, in their legislative character, to any tribunal, but that of public sentiment. The case is different with the members of the executive and judiciary. They may, with propriety, be subjected to trial, for a violation of their trust, at the bar of a constitutional tribunal.
It may be observed, that a separation, and precise limitation of the powers of government simplifies the duties of its ministers. All their acts are, thereby, rendered distinct. Enquiry is facilitated, and abuses readily traced to their criminal causes, the particular agents. In addition to this, it gives a degree of energy to the public sentiment. Public approbation and censure, when directed to a number of men, of whom some are known to have acted well, or ill, but the particular agents are concealed, lose much of their force. The guilty hide their blushes in the crowd. Guilt, or rather the sense of guilt, is diminished in proportion to the number of associates.
The better to secure the accountability of the individuals in the great departments of the government, not only ought the powers of the several departments to be, precisely, and distinctly, limited; but the several members ought to be incapable of holding a place in more than one of the departments, at the same time. The members of one department may be eligible to a place in another; but the acceptance of the latter ought to vacate the former. A separation into distinct bodies, will be of little avail, if those bodies may be composed, principally, of the same individual members. The division and limitation of powers, will, in this case, be merely matter of form. They will remain, substantially, united.
If the above observations are well founded, the executive branch ought not to have a negative, or any directing power, in the act of passing laws. The executive may, however, within certain limits, well have a deliberative voice. Those, who are conversant in the execution of the laws, will be the centre of information upon that subject. They will, more readily than others, foresee any difficulty, which may arise in the execution. Of such information the legislature ought to be availed.
The same observations, nearly, will hold true of the judiciary. The judges, from the nature of their official employment, are informed of the difficulties, which arise in the interpretation of the laws, and of those cases, in which they prove deficient, unequal, or unjust in their operation. Such information is highly necessary to the legislative body. The principal members of the judiciary, may, when the particular duties of their office will permit, be, with propriety, united with the head of the executive department, to form a council of revision upon all laws proposed to be passed by the legislature. The business of this council should be confined, solely, to objections. It should be their duty to give information of all difficulties, which they foresee will arise, either in the interpretation, the application, or the execution of the law; and to notice all inconsistencies, either in the laws themselves, or as they relate to the principles of the constitution. They should be allowed, in no instance, to propose any amendments, or to make any leading propositions, in the enacting of laws; but simply to state to the legislature, such objections, as they find to any law, with their reasons in writing.
The information to be derived from this source, may enable the legislature to give a regular consistence to the laws, and a facility to their administration, not otherwise to be expected. Still, the legislature must be the sole judges, whether the information given coincides with the general interest of the community, and the principles of the government, or is dictated by particular views, or particular interests.
The Founders' Constitution
Volume 1, Chapter 10, Document 18
The University of Chicago Press
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