Roots of the Principle of Separation of Powers in the Indiana Darwin N. Kelley” In both the 1816 and 1851 of Indiana the framework of the is the principle of separation of powers. In the constitution of 1816 Article I1 states the principle: “The powers of the government of Indiana shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another. And no person, or collection of persons, being of one of those depart- ments, shall exercise any power properly attached to either of the others, except in the instances herein expressly per- mitted.” In the constitution of 1851 the same principle is found in Article 111, Section 1: “The powers of the govern- ment are divided into three separate departments; the legis- lative, the executive including the administrative, and the judicial ; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided.” The other states, as well as the framers of the federal constitution of 1787, used the principle of separation of powers, this being one of the most important principles followed by the early constitution makers. Practical appli- cations of the principle, and the operation under the of necessity, are deserving of separate considerations. Only the theoretical roots will be considered in this study. Although there are many names associated with the evolution of this theory, the two Europeans, and Locke, deserve paramount respect.l The purpose of the theory is to get government with . Of course there are other methods of safeguarding liberty.2 But in view of

* Darwin N. Kelley is a graduate student in history at Indiana Uni- versity, Bloomington, Indiana. 1 Other men commonly referred to either because of their views on checks and balances or separation of powers are: (commonly taken to be the original statement of the doctrine), , Machiavelli, , James Harrington, M. Turgot, , and . ZJoseph Story, Co7ttn~ataries on the Constitution of the United States (3 vols., Boston 1833), 11, 7: “Milton was an open advocate for concentrating all powers, legislative and executive, in one body; and his 368 Indiana Magazine of Histmy the seventeenth century English experience, as well as their own experience before and after 1774, the Americans were unr~eptive.~ (1632-1704) was well known as a philoso- pher. Although the ideas of the Carolina constitutions, he wrote in 1669, were rejected by those in America, his Two Treatises of Civil Government published in 1690’ not only supplied the Whig party in with their for the next century but also was clearly the source of the principles set forth by in the opinions, as well as those of some other men of a philosophical cast, are sufficiently wild and extravagent to put upon our guard against too much reliance on mere authority.” 8 John , “A-Defence of the Constitutions of Government of the United States of Amenca,” in Charles Francis Adams (ed.) ,The Wwks of John Adamp (10 vols., Boston, 1860-1866),IV (1851), 464-466.John Adams wrote at length to refute Turgot’s advocacy of giving all powers to the legislature. Referring to Milton, Adams, stated that “A man may be a greater than , and one of the most learned men in the world; he may spend his life in defence of liberty, and be at the same time one of the most irreproachable moral characters; and yet, when called upon to frame a constitution of government, he may demonstrate to the world that he has reflected very little on the subject. There is a great hazard in saying all this of ; but truth and the ri hts of mankind demand it.” Adam8 then quoted at length from Milton’s%eady and Eesy Way to Establish a Free Comnwnwealth, upon which he commented: “Can one read, without shuddering, this wild reverie of the divine, im- mortal Milton? If no better systems of government had been proposed it would have been no wonder that the people of England recalled the royal family, with all their errors, follies, and crime about them. Had Milton’s scheme been adopted, England would have been a scene of , carnage and horror, from that time to this, or its would have been at this hour the liberties of Poland, or the island would have been a province of France. What! a single assembly to govern England? an assembly of senators for life too? What! did Milton’s idea of liberty and free government extend no further than exchanging one house of lords for another, and making it supreme and pe etual. What! Cromwell, Ireton, Lambert, Ludlow, Waller, and five hunrdied others of all sects and parties, one quarter of them mad with enthusiasm, another with ambi- tion, a third with avarice, and a fourth of them honest men, a perpetual council to govern such a country! It would have been an of decemvirs on the first day of its sitting; it would have instantly been tom with all the agitations of , between the aristocracy and oli- garchy, in the assembly itself. If, by ballot and rotations and a thousand other contrivances, it could have been combined together, it would have stripped the people of England of every shadow of liberty, and pwnin the next generation a lazy, haughty, ostentatious gmup of palatinea; but if they had fallen into divisions, the would have deluged the nation in blood, till one despot would have ruged the whole. John Milton WBB 89 honest a man as his nation ever bred, and as great a friend of liberty; but his greatness most certainly did not consist in the knowledge of the nature of man and of government, if we are to judge from this perform- ance, or from ‘The Preaent Means and Brief Delineation of a Free Cm nwnwalth,’ in his letter to General Monk.” ‘John kke, Two Treatises of Government, edited by Thomas I. Cook (New York, 1947), k. Separation of Powers in the Indiana Constitution 369 second paragraph of the Declaration of Independence. More- over, Locke influenced the political thinking through the time of the drafting of the Constitution in 1787, and long afterwards. Obviously influenced by the pressing problems of Eng- land, Locke was on new ground so far as theory was con- cerned when he set forth his doctrine of separation of powers.6 The rapid succession of royal absolutism, parliamentary ab- solutism, Cromwellian dictatorship, and the return of royal absolutism in England in the seventeenth century before the Glorious of 1688, impressed upon the English mind the need of harmony. Principles to achieve this were to John Locke the eternal truth.e The three powers, according to Locke, are legislative, executive, and federative. The extent of the legislative power makes it supreme: “The great end of men’s entering into being the enjoyment of their properties in and safety, and the great instrument and means of that being the laws established in that society, the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental which is to govern even the legislative itself is the preserva- tion of the society and, as far as will consist with the public good, of every person in it. This legislative is not only the supreme power of the commonwealth, but sacred and un- alterable in the hands where the community have once placed it. . . .’’7 “Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects.”8 The power of the judges, although not called the judi- cial power, limits the legislative power: “The legislative or supreme authority cannot assume to itself a power by ex- temporary, arbitrary decrees, but is bound to dispense jus- tice and to decide the of the subject by promulgated,

6 William Archibald Dunning, A Histwy of Political Theories front Luther to Montesquieu (New York, 1923), 366. 6 Locke, Two Treatises of Government, ix, pa-asim. ‘Ibid., 188. elbid., 189. 370 Indiana Magazine of History standing laws, and known authorized judges. For the law of nature being unwritten, and so nowhere to be found but in the minds of men, they who through passion or interest shall miscite or misapply it, cannot so easily be convinced of their mistakes where there is no established judge; and so it serves not, as it ought, to determine the rights and fence the properties of those who live under it, especially where every one is judge, interpreter, and executioner of it, too, and that in his own case; and he that has right on his side, having ordinarily but his own single strength, hath not force enough to defend himself from injuries or to punish delin- q~ents.”~ The executive power, among other things, guarantees the right use of legislative power: “The legislative power is that which has a right to direct how the force of the common- wealth shall be employed for preserving the community and members of it. But because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time, therefore there is no need that the legislative should be always in being, not having always business to do. And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own pri- vate advantage, and therefore come to have a distinct in- terest from the rest of the community contrary to the end of society and government; therefore, in well ordered com- monwealths, where the good of the whole is so considered as it ought, the legislative power is put into the hands of divers persons who, duly assembled, have by themselves, or jointly with others, a power to make laws; which when they have done, being separated again, they are themselves subject to the laws they have made, which is a new and near tie upon them to take care that they make them for the public good.”lo “But because the laws that are at once and in a short time made have a constant and lasting force and need a perpetual executive or an attendance thereunto ; therefore, it is necessary there should be a power always in being

elbid., 190. 10 Zbid., 194-195. Separation of Powers in the Indiana Constitution 371 which should see to the execution of the laws that are made and remain in force. And thus the legislative and executive power come often to be separated.”ll In thought, while thinking of England, Locke had trav- eled to the Americans since he formulated his curious plans for Carolina with the proprietors the center of power. How- ever, the Americans were to merge the federative power (war and alliances) with the executive, and add a clearcut judi- cial power. Montesquieu’s ( 1689-1755) virile passion for liberty made his name a battle cry for the Americans. The align- ment of the War of Independence, with England the enemy and France the main ally, made more appropriate the quoting of a Frenchman. He became the chief American authority on the way to preserve liberty.’* Indeed, even more than that, he was their very oracle of political phi10sophy.l~ His The Spirit of Laws (1748),published almost forty years be- fore the Constitutional Convention of 1787, won for him this position because of the author’s love of 1ibe1‘ty.l~ As has been noted, Locke had separation of powers; but it was the terminology of Montesquieu-legislative, ex- ecutive, and judicial powers-that was established in the vocabulary of the Ameri~ans.’~

11 Zbid., 195. References to some aspect of separation of powers are scattered throughout the Second Treatise. 12 Andrew C. McLaughlin, A Constitutional History of the United States (New York, 1936), 116. 13 E. H. Scott (ed.) , The Federalist and Other Constitutional Papers (New York, 1894), 266-273. “No general principle of politics laid such hold on the constitutionmakers and statesmen of America as the dogma that the separation of these three functions is essential to .” James Bryce, ThAmerican Commonwealth (2 vols., New York, 1914), I, 29. 14 Hugh Evander Willis, Constitutional Law of the United States (Bloomington, Indiana, 1936), 132 wrote: “John Locke must be given much credit for the doctrine, yet, if Montesquieu had never written, probably there would never have been a doctrine of separation of powers in the United States Constitution and the various state constitutions in the United States.” It is interesting, if unhistorical, to speculate what would have been used to put into language colonial experience had there been no convenient attractive statement of separation of powers. Gilbert Chinard, “Polybius and the American Constitution,” in Journal of the History of Zdeas (New York, 1940- ), I, 44 stated: “Montesquieu . . . did nothing but generalize and modernize the lessons of ancient history.” 15 Carl Joachim Friedrich, “Separation of Powers,” in Encyclopaedia of the Sociul Sciences (15 vols., New York, 1930-1935), XI11 (1934), 664: “When Montesquieu came to rewrite the doctrine, the Act of Settlement of 1700 (para. 3) had already undertaken to guarantee to English judges tanure during good behavior. Since Montesquieu himself was, as a result 372 Zndkmz Magazine of History Evidently Montesquieu worked with both France and England in mind. Taking what, he thought to be the consti- tution of England as his model, he proclaimed its merits due to the division of legislative, executive, and judicial func- tions; and to the system of checks and balances which pre- served the system.lo But one must keep in mind Mon- tesquieu’s interest in the practical politics of France, even when he did not mention his own country.’‘ At any rate, men supposed that the theory had functioned in England, even if it were not in fact the secret of English liberty when Montesquieu penned the classical statement found in The Spirit of Laws, Book XI, Chapter 6. Unquestionably this chapter contains the statement of the theory that the men of the Constitutional Convention had in mind. Montesquieu’s definition of liberty makes it practical. “In , that is, in directed by laws, lib- erty can consist only in the power of doing what we ought of the contemporary situation in France, primarily interested in the roblem of securing an independent status for judges, it was natural for R im to rename Locke’s executive power judicial power, inasmuch as the executive’s function as described by Locke had been to execute the laws. This transformation was accompanied by another, whereby Locke’s feder- ative power emerged as the executive power with Montesquieu. By elabo- rating the importance of maintaining internal as well as external peace and by thus assimulating the police functions to those of defense and foreign policy, Montesquieu constructed the modem executive power which included also the prerogative that English lawyers had always carefully kept apart for s ecial purposes. In this wise there arose a pic- ture of the ideal balancef state, guaranteeing liberty, which fascinated the eighteenth century with its passion for dynamic symmetry and con- structive s eculations. It was of the greatest moment that these con- structions gappened to fit the constitutional experience of most of the American colonies, where a governor, a distinct colonial legislature and a fairly independent judiciary had come to constitute the essential organs of government and where after the Declaration of Independence a brief experiment with legislative supremacy leading to majority tyranny had made the people ripe for a practical application of the celebrated theme.” 1e“Charles Louis de Secondat Monte uieu,” in Encyclopaedia Bri- tunnicu XV (1946), 760-761: “Pmfessor%aintsbury has said that ‘the real importance of the Esprit des lois, however, is not that of a formal treatise on law, or even on policy. It is that of an assemblage of the most fertile, original and inspiriting views on legal and political subjects, put in language of singular suggestiveness and vigour, illustrated by ex- amples which are always apt and luminous, permeated by the spirit of temperate and tolerant desire for human improvement and happiness, and almost unique in its entire freedom from doctrinarism, from vision- ary enthusiasm, from egotism, and from an undue spirit of system.” 17 Charles A. Beard, A&n Governmnt and Politics (New York, 1919), 162: “In point of fact, however, the doctrine, as far as Mon- tesquieu was concerned, was a notion which he acquired during a conflict between the judiciary and king in France in which he participated, and afterwards read into his study of the institutions of England.” Separation of Powers in the Indiana Constitution 373 to will, and in not being constrained to do what we ought not to will.” Moreover, “We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.”18 Then too, liberty and safety are one. “The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man needs not be afraid of another.”l8 And the way to achieve this liberty is by separation of powers. “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.”2o With expert skill the subject was not exhausted but rather made the starting place for a plan. “I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degree of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think.”21 A comparison of Montesquieu’s plan for carrying out separation of powers with the distributive clauses with which this study began in the Indiana constitutions of 1816 and 1851 shows that they agreed on general theory. But in Indi- ana the principle was used to put in operation what was learned by experience in the colonies, the early state govern-

~ ‘BBaron de Montesquieu, The Spirit of the Laws, edited by Franz Neumann and translated by Thomas Nugent (2 vols., New York, 1949)’ I. 160. 10Zbid., 151. 20 ZW,161-162. 21zirid., 182. 374 Indiana Magazine of History ments, and the federal government after 1787.22 For Indiana the most immediate factor was the examples of Ohio, Ken-

22 For further material as to the originality of Montesquieu and his being read by the colonial publicists see Max Radin, “The Doctrine of the Separation of Powers in Seventeenth Century Controversies,” in Univer- sity of Pennsylvania Law Review and American Law Registm (Philadel- phia, 1852- ), LXX.XV1 (1937-1938), 842-843. Also Paul Merrill Spurlin, Montesquzeu an America, 1760-1801 (University, Louisiana, 1940). It may be thought by some that other theorists should be included, especially Blackstone. That the influence of other authorities than Locke and Montesquieu was great is not questioned. Yet on the point of pre- serving liberty it does not seem that they had a strong appeal. - stone may be used as an example. “Throughout the Revolution the Black- stonian doctrine of ‘legislative omnipotence’ was in the ascendant.” Ed- ward S. Convin, “The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Con- vention,” in the American Historical Review (New York, 1895- ), XXX (1924-1925), 517. Sir William Blackstone (1723-1780) had published his first volume of Commentaries in 1765. His work was widely read in America. How- ever, for the preservation of liberty the colonists could well go directly to Montesquieu. Not only does Blackstone use Montesquieu as an authority, but also has such statements as these: “In all tyrannical governments, the supreme magistracy, or the right of both 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, Cmmentahes on the Laws of Eng- hnd (2 vols., Philadelphia, 1856), I, 105. And as it is stated in an edition that placed the thought in more recent language: “But, where the legis- lative and executive authorities are in distinct hands, the former will take care not to entrust the latter with such large power as may tend to the subversion of its own independence and of the liberty of the subject.” Bernard C. Gavit (ed.) , Blackstone’s Cvmmentao-ies on the Law (Wash- ington, 1941), 79. “In England, the supreme power is divided into two branches, the one legislative, to wit, parliament, consisting of the king, lords and commons; the other executive, composed of the king alone.” Ibid. A recent evaluation of the present influence of Montesquieu is found in the introduction by Franz Neumann to The Spirit of the Lams. In this introduction it is stated that “The effect of Montesquieu’s Spirit of the Laws on modern constitutionalism has been and still is deep and is, per- haps, still growing. His influence was either a direct one (as in the United States) or came to Europe via the United States (as in France), or was transmitted through his interpretation of the English constitution (as in Germany) .” lix. However, this introduction closed with this opin- ion: “modern political science must emancipate itself from the dead- weight of the separation of powers doctrine which, much against Mon- tesquieu’s conception, has been transformed into a dogma. Montesquieu demanded the separation of powers merely because he believed that it alone could enable a counter-power to check power, so that a maximum of liberty could be assured. It is not the constitutional form that stands in the center of his theory, but its social substructure. No one was less in- clined than Montesquieu to make a fetish of the constitution.” lxiv. “While the independent judiciary can be considered the irreducible minimum of the doctrine of separate [sic] of powers, the separation of administrative and legislative functions not only does not guarantee free- dom, but hampers the utilization of the state’s power for desired social pnds. The power of the state is unified while a division of labor may and alwa s will lead to a distinction between various functions of the state, bdonexpedience and not on dogma. Liberty is not threatened by Separation of Powers in the Indiana Constitution 375 tucky, Tennessee, and Pennsylvania.2s The application of the principle of separation of powers and the practical working of the principle is a study for another time. legislative activity of the administration but by such a structure of so- ciety that makes the rise of contending political forces impossible or dif- ficult. A pluralistic social structure and a flexible multi-party s stem are far more important to liberty than the monopolication of legisyation by the legislature and the reduction of the administrative power into a law-enforcing agency. The threat to liberty, inherent in the ascendance of administration, cannot be curbed by curtailing administrative activity but by subjecting it to a parliamentary control and assuring popular par- ticipation in administration.” lxiv. “Montesquieu had changed his conception after a study of English political institutions. He would equally have changed it after a study of mass in action.” lxiv. The present controversy about separation of powers is not within the scope of this study; only to show present interest and questioning in the above quotation given. But it is fitting to point out that, since the use made of Montesquieu in the Constitution of the United States and the state constitutions is largely a use of his wording to express the Ameri- can experience up to that time, to change the principle of separation of powers would be to change the basis of ex erience on which the govern- ment is established. Whether or not this ciange should be made, rather than the meaning of Montesquieu, is the heart of the problem today. 23 John D. Barnhart, “The Southern Influence in the Formation of Ohio,” in The Journal of Southern History (Baton Rouge, 1935- )l 111 (1937), 28.