Separation of powers
Separation of powers is a model for the governance first developed in Ancient Greece and Rome under which the state is divided into branches, each with separate and independent powers and areas of responsibility so that no branch has more power than the other branches. The normal division of branches is into a legislature, an executive, and a judiciary.
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- Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man who has power is inclined to abuse it; he goes until he finds limits. Is it not strange, though true, to say that virtue itself has need of limits?.
To prevent this abuse, it is necessary that, by the arrangement of things, power shall stop power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.
- Montesquieu, De l'Esprit des Lois (1748), Book XI, Chapter 4.
- In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty.
- William Blackstone, Commentaries on the Laws of England, 9th ed., book 1, chapter 2, p. 146 (1783, reprinted 1978).
- In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.
The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person.
But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, and would be always able to possess, a share in both.
- In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
- It is important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional Spheres; avoiding in the exercise of the Powers of one department to encroach upon another.
- George Washington, farewell address (September 19, 1796); reported in John C. Fitzpatrick, ed., The Writings of George Washington (1940), vol. 35, p. 228.
- It is obvious that the executive power could not proceed from the Parliament, made of two Houses and holding the legislative power, or we would have a mixing of powers in which the government would soon be nothing more than an makeshift of delegations. Certainly, during the current transitional period, we had to have the President of the provisional government elected by the National Constituent Assembly, because from a clean slate there was no other acceptable means to designate him. But this can only be a momentary arrangement. Truly, unity, cohesion and the internal discipline of the government of France must be sacred things, or the very direction of the country will become powerless and disqualified. How could this unity, this cohesion and this discipline be maintained if the executive power came from the other power which it must balance, and if each of the members of the government, which is collectively responsible to the entire national representation, was, at his post, only the representant of a party?
- One must give one power a ballast, so to speak, to put it in a position to resist another.
- The laws of Rome had wisely divided public power among a large number of magistracies, which supported, checked and tempered each other. Since they all had only limited power, every citizen was qualified for them, and the people — seeing many persons pass before them one after the other — did not grow accustomed to any in particular. But in these times the system of the republic changed. Through the people the most powerful men gave themselves extraordinary commissions — which destroyed the authority of the people and magistrates, and placed all great matters in the hands of one man, or a few.
- The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.
- The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
- James Madison, The Federalist, ed. Benjamin F. Wright, no. 47, p. 336 (1961).
- Two conditions are essential for an absolute independence of powers. First, that the source from which they emanate is one; second, that they all exert upon each other reciprocal vigilance.
The people would not be sovereign, if one of the constituted powers that represent them, did not emanate immediately from them; and there would be no independence if one of them was the creator of the other. Give the legislature, for example, the right to appoint members of the executive power; it will exert on them a fatal influence, and political liberty will no longer exist. If the legislature appoints the judges, it would influence the judgments and there would be no civil liberty. Thus in England, where the executive power exerts a marked influence on the legislature, political liberty is considerably diminished. The judicial power, whatever appointed by the executive, is immune from its fatal influence because the people compose the jury and the judges are irremovable; so civil liberty has not yet received almost no attack.
- To admit then a right in the House of Representatives to demand, and to have as a matter of course, all the Papers respecting a negotiation with a foreign power, would be to establish a dangerous precedent. It does not occur that the inspection of the papers asked for, can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution has not expressed. I repeat, that I have no disposition to withhold any information which the duty of my station will permit, or the public good shall require to be disclosed: and in fact, all the Papers affecting the negotiation with Great Britain were laid before the Senate, when the Treaty itself was communicated for their consideration and advice. The course which the debate has taken, on the resolution of the House, leads to some observations on the mode of making treaties under the Constitution of the United States.
- George Washington, address to the House of Representatives (March 30, 1796); reported in John C. Fitzpatrick, ed., The Writings of George Washington (1940), vol. 35, p. 3. Washington refused to provide papers relating to the Jay Treaty, since the assent of the House was unnecessary.
- Esprit des lois (1777)/L11/C6 - Wikisource (in fr). fr.wikisource.org.
- The Avalon Project : Federalist No 51. avalon.law.yale.edu.
- Discours de Bayeux (1946) - Wikisource (in fr). fr.wikisource.org.
- Considérations sur les causes de la grandeur des Romains et de leur décadence/11 - Wikisource (in fr). fr.wikisource.org.
- Montesquieu, Causes of the Greatness of the Romans (2017-11-09).
- "Myers v. United States, 272 U.S. 52 (1926)" (in en). Justia Law.
- texte, Miranda, Francisco de (1750-1816). Auteur du (1794). Opinion du général Miranda sur la situation actuelle de la France, et sur les remèdes convenables à ses maux (in EN). Gallica.