JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST
FORM OF GOVERNMENT
In the present state of civilization society cannot act effectively
for determining and maintaining the line, the equilibrium, between
necessary freedom and necessary restraint, or in short, justice,
except through some governmental organization with power to define and
enforce. Appeals to altruistic sentiments will not suffice. This truth
was recognized by the framers of our federal and many state
constitutions, in naming first among the purposes of government the
establishment of justice.
Any government, however, or rather those entrusted with its
administration, may through mistake or wilfulness do injustice to some
of its subjects. It has often done so in the past and the future is
not free from the danger. The very possession of power excites a
desire to use it, and it is an admitted characteristic of our human
nature that those vested with power, political or other, are prone to
exercise it unduly, to abuse it. Men in authority are often said to be
"drunk with power." Hence to ensure justice the governmental
organization should be such that the limits of the various powers of
the government be carefully defined and its administrators be kept
within those limits.
Some years ago I might have pointed to our own federal and state
governments as the best in form and character for establishing justice
and rested there. In later years, however, the superiority of our
system is questioned, and radical changes are urged, and indeed some
have been made, in the federal system and in that of some of the
states. I feel, therefore, that I should make some defense of the
system, believing as I do that in its general form and character it is
best adapted to secure firmly as much individual liberty of action
and equality of right as is consistent with the welfare of the whole
number, or, in other words, best adapted to secure justice.
It has become a familiar maxim that the functions and powers of
government may all be grouped in three classes or departments,
corresponding to the duties already named: (1) that of determining
what rules and regulations should be observed, what restraints and
duties should be imposed upon its subjects; (2) that of determining
whether in a given case any of these rules, etc., have been violated;
and (3) that of punishing their violation and otherwise enforcing
their observance. These three groups have come to be called the three
powers of government and to be designated as the legislative,
judicial, and executive, though they are usually named in another
order as the executive, legislative, and judicial.
The most efficient form of government for good or evil, and the
quickest to act, is undoubtedly that in which all of these powers are
united in a single individual. If that individual were always strong,
yet peace-loving, self-controlled, sagacious and exclusively devoted
to the welfare of his subjects, that form of government would perhaps
secure them justice most surely and speedily. Such men, however, are
rare and such governments have been found to be invariably and almost
inevitably arbitrary in their dealings with their subjects, and in the
plenitude of their power to become oppressive. While they may
effectually protect their subjects from foreign aggression and
domestic anarchy, their tendency is to impose burdens and restrict
individual liberty more than necessary, and to disregard the innate
desire of men for liberty or at least for equality of restraint. This
form of government has already largely disappeared and is further
disappearing, though it may again be resorted to for the restoration
of order, should the present forms of government fail to prevent
violence and preserve the peace.
But other forms of government have not been and are not yet wholly
free from the same objectionable tendency. The vesting of all these
governmental powers in a group or class of persons instead of one
person has been followed by the same results. Aristocracies or
oligarchies have the same tendency and even in a greater degree. They
have proved even more selfish and tyrannical than the single ruler.
They, like all crowds, are less sensitive in conscience, less moved by
appeals to reason, than is the single individual. They offend more the
sentiment of equality. The French Revolution was not so much against
the king as against the nobility, who with their oppressive feudal
exemptions had excited the resentment of the people at large. It was
not till after he had cast in his lot with the emigres that the king
was deposed and guillotined.
Nor have pure democracies, in the few instances where they have
undertaken to exercise directly all the powers of government, showed
less tendency to be arbitrary and inconsiderate of individual freedom
and desires. The nearest approach to such a government was that of
ancient Athens where the populace sent into exile, practically without
trial, Aristides, called the Just, Miltiades, the victor of Marathon,
and Themistocles, the victor of Salamis. The excesses of the Paris
Commune of 1870 during its reign, the lynchings of today by mobs of
so-called "respectable citizens" who assume the power to accuse, judge
and execute all at once, indicate how much regard unrestrained
democracies would have for the rights of their individual members.
Nevertheless, despite the danger of more or less arbitrariness, of
more or less oppression of the individual, any government must be made
strong enough perfectly to maintain order and peace among its
subjects. Order is earth's as well as heaven's first law. The goddess
Themis in the early Greek mythology was the goddess of order as well
as the supplier of _themistes_ or decisions. She was present as the
spirit of order in the councils of gods and men. The government that
cannot or will not maintain order and peace, prevent violence and
fraud, enforce individual rights and redress individual wrongs
completely and promptly, is so far a failure and whatever its form
should be reformed or overthrown. Even military despotism is better
than disorder.
On the other hand, there must be taken into account the tendency,
already mentioned, of the possessor of unlimited power over others to
use it for his own benefit or pleasure at the expense of those subject
to his control, where not restrained by affection or like virtues.
Under all governments there has been more or less friction between the
persons governing and those governed; more or less strife, sometimes
culminating in rebellion and even revolution. If it be said that under
a government by the people directly, a pure democracy, such as seems
to be advocated at this day, there would be no distinction between
governors and governed, that all would be governors and governed
alike, the answer is that in a pure democracy the governing power is
and can be exercised by only a part of the people, a majority it may
be, but still only a part. This part are the governors. The other
part, perhaps nearly as numerous, are governed. Friction and even
factious strife would still exist. Indeed, a government by a pure
democracy ruling directly would probably be more arbitrary than any
other, as was the case in Athens. The government by one, or that by a
few, would be restrained to some extent by public opinion, would
refrain from extreme measures lest they excite effectual resistance,
but a majority would feel no such restraint. It would itself
constitute public opinion and it would be less likely to fear
resistance.
It is evident, therefore, that the frame of government should be such
as to secure uniformity in its action so that it shall not act
arbitrarily and unequally on its subjects. I assume that no sane man
would desire to live under any government where the wielders of the
governmental power, one or many, are entirely without legal restraint.
We all desire normally, not only order and peace, but also personal
liberty and equality of rights. The problem, then, is how to order the
frame of government so that it shall be strong enough to protect us
individually as well as collectively, but not left able to oppress us
or any of us. As said by Alexander Hamilton, we "must first enable the
government to control the governed, and in the next place oblige it to
control itself."
One great step toward such a form of government was made in the
establishment of our federal and state governments by giving effect to
the theory of the tripartite nature of governmental powers, entrusting
each of the three to a different person or group of persons, or, in
other words, to a different department, each restraining the other
departments from exceeding their defined powers, so that the
government, however democratic, shall not run wild. At this day,
however, even this feature of our form of government is assailed as
hampering the people and their government and greatly delaying desired
reforms. It may be admitted that a government with its powers thus
separated in different departments is not able to act as quickly as
desired by zealous persons confident of the excellence of their
schemes and impatient for their realization, but, on the other hand,
it is less liable to act too hastily, less liable to act arbitrarily,
or to disregard individual rights and interests.
The idea of a division of governmental powers is not of recent origin.
Aristotle argued that the judges should have no other political power,
should not themselves enforce their decisions. In Rome under the
Republic there was divided between the pretor and the judex the power
to decide controversies. The pretor had other duties, but the judex
was confined to the single duty to hear and determine. The framers of
our Federal Constitution and of our early state constitutions did not
act hastily nor unadvisedly. As heretofore stated, the long
controversy with Great Britain over the relations between that country
and her Colonies, the arbitrary acts of the British King and
Parliament, caused in the Colonies a profound study of the nature of
government: what should be its purposes and how best to effect its
purposes and avoid its abuses. The principal men among them in each
Colony were familiar with the history of governments and with the
theories of government advanced by European lawyers and political
philosophers. They were acquainted with the arguments of Montesquieu
and others that a separation of the powers of government and the
vesting of each, the executive, legislative, and judicial, in
different hands was essential to liberty. They did not merely
theorize, however. They had themselves lived and labored under
governments not thus divided in functions or only partially so.
Colonial governors had assumed legislative functions in the
promulgation of ordinances, and also judicial functions as judges of
probate and in other ways. The colonial legislatures did not hesitate
to dictate to the courts in particular cases and often acted as a
court of appeal. In Massachusetts Bay the legislature came to be known
as the General Court and exercised judicial power freely, sometimes
calling in the judges to sit with them. The same individual could at
one and the same time fill an executive and a legislative or judicial
office. In colonial Massachusetts William Stoughton held the offices
of military commander, lieutenant governor, and chief justice at the
same time. Because of the frequent and prolonged absences of the
titular governor he was often the acting governor. As an inevitable
consequence, when sitting as a judge he was more a zealous prosecutor
than an impartial judge. His conduct in the witchcraft trials was
comparable to that of Jeffreys in the infamous "Bloody Assizes."
Hutchinson was also often acting governor while holding his commission
as chief justice.
In view of their experience and deep study, the opinions formed by
the framers of the early constitutions of this country should be of
great weight in forming our own. It is worth while to cite the
opinions of some. Thomas Jefferson was not in his day, nor has he been
since, regarded as opposed to popular government. Virginia had as
early as 1776 declared in its first constitution that the three great
departments should be kept separate. Jefferson, who besides his other
opportunities of observing the operation of government was himself
chief magistrate of the state, criticized that constitution as not
making such separation effectual. In his "Notes on Virginia" he wrote
of it: "All the powers of government, legislative, executive and
judiciary, result to the legislative body. The concentrating these in
the same hands is precisely the definition of despotic government. It
will be no alleviation that these powers will be exercised by a
plurality of hands and not by a single one. One hundred and
seventy-three despots would surely be as oppressive as one. Let those
who doubt it turn their eyes on the republic of Venice. As little
will it avail us that they are chosen by ourselves. An elective
despotism was not the government we fought for, but one which should
not only be founded on free principles, but in which the powers of
government should be so divided and balanced among several bodies of
magistracy as that no one could transcend their legal limits without
being effectually checked and restrained by the others. For this
reason the convention which passed the ordinance of government laid
its foundation on this basis, that the legislative, executive and
judiciary departments should be separate and distinct, so that no
person should exercise more than one of them at the same time. But no
barrier was provided between these several powers." It was this
defect, this lack of barriers, that Jefferson lamented.
When the draft of the Federal Constitution of 1787 was submitted to
the states, one of the principal objections urged against it was that
in its structure sufficient regard was not paid to keeping the three
departments of government separate and distinct. In reference to this
objection Madison wrote in the "Federalist": "No political truth is
certainly of greater intrinsic value or is stamped with the authority
of more enlightened patrons of liberty than that on which this
objection is founded. The accumulation of all powers, legislative,
executive, and judiciary, in the same hands, whether of one, few, or
many, and whether hereditary, self-appointed, or elective, may justly
be pronounced the very definition of tyranny. Were the Federal
Constitution therefore really chargeable with this accumulation of
powers, or with a mixture of powers having a dangerous tendency to
such an accumulation, no further argument would be necessary to
inspire a universal reprobation of the system." He elsewhere declared
the maxim to be a "fundamental article of liberty."
Hamilton was apprehensive of danger to liberty from the legislative
department and favored a strong executive to guard against it. He
declared in the "Federalist" that the legislative department was
"everywhere extending the sphere of its activity and drawing all power
into its impetuous vortex,"--that the people "never seem to have
recollected the danger from legislative usurpation which by assembling
all power in the same hands must lead to the same tyranny as is
threatened by executive usurpation." Washington in his Farewell
Address, after much experience with, and observation of, legislative
action, said: "The necessity of reciprocal checks in the exercise of
political power by dividing and distributing it in different
depositaries and constituting each the guardian of the public weal
against invasions by the others has been evinced by experiments
ancient and modern, some of them in our own country and under our own
eyes. To preserve them must be as necessary as to institute them."
After having lived for generations under governments in which there
was no effective division of powers, the people of the various
colonies in setting up their own governments at the time of the
Revolution very generally declared for such division, in more or less
explicit terms. Even in the few cases where the division was not
expressly made, it was implied in the constitution. The provision in
the constitution of Massachusetts adopted in 1780 may be cited as an
example of the strength of the conviction. "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 this provision were appended, as the reason for
it, the memorable words, "To the end that it may be a government of
laws and not of men."
From 1776 to the present century as new states were formed their
people in most instances have adopted similar provisions. Perhaps the
people of Maine when they separated from Massachusetts in 1820
adopted the most stringent provision by prohibiting not only the
departments but all the persons in either department from exercising
any of the powers properly belonging to either of the other
departments.
Of course some exceptions to the rule are necessary and these are
usually named in the constitution itself. Again the dividing line
between the powers cannot always be precisely defined and, further,
each department in the performance of its own proper functions may
sometimes be obliged to exercise a power strictly pertaining to
another department. All that the maxim requires is that the three
powers should be kept as distinct and separate as possible and have
the government still go on.
It is true we should not fear to question the wisdom of our fathers,
but conclusions they have arrived at in matters of government after
long study, observation, and actual experience should not be
disregarded unless their error can be clearly demonstrated.