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Roots of the Principle of Separation of Powers in the Indiana Constitution Darwin N Roots of the Principle of Separation of Powers in the Indiana Constitution Darwin N. Kelley” In both the 1816 and 1851 constitutions of Indiana the framework of the government 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 stress 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, Montesquieu and Locke, deserve paramount respect.l The purpose of the theory is to get government with liberty. 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: Aristotle (commonly taken to be the original statement of the doctrine), Polybius, Machiavelli, John Calvin, James Harrington, M. Turgot, William Blackstone, and Oliver Cromwell. 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.~ John Locke (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 England with their political philosophy for the next century but also was clearly the source of the principles set forth by Thomas Jefferson 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 Adams, “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 poet than Homer, 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 John Milton; 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 revolutions, carnage and horror, from that time to this, or its liberties 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 oligarchy of decemvirs on the first day of its sitting; it would have instantly been tom with all the agitations of Venice, 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 Revolution 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 society being the enjoyment of their properties in peace 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 natural law 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 rights 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.
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