PART I THE SEPARATION OF GOVERNMENTAL POWERS CHAPTER I THE HISTORICAL DEVELOPMENT OF THE SEPARATION OF GOVERNMENTAL POWERS In every state, be it monarchic, aristocratic or democratic, there is a tendency to distribute the principal powers of government among distinct governmental organizations.' The earliest dawn of civilization discloses, as the most primitive form of political organization, a warfaring society grouped about a victorious chief. This powerful personage is supposed to represent the fittest product of the period of barbaric liberty and self-help, which immediately preceded the period of governmental organization. The chieftain's superiority in valor convinces his superstitious admirers, as well as himself, that he is of divine descent. This superstition invests him with a halo of glory and clothes him with sovereign power. The religious sanction secures reverence for his per 1 For the sense in which the term "State" is used herein, see "The Idea and Conception of the State" and "The Forms of the State," Burgess' Pol. Sc. and Const. Law, book ii, chapts. I and 3. See, also, "Tests of Governmental Forms," Burgess' Pol, Sc. and Const. Law, vol. 2, pt. ii, bk. 3, pp. 1, 8. 2 “The common god of the English people, as of the whole German race, was Woden, the war god, whom every German tribe held to be the first ancestor of its kings."-Green, A Short History of the English People, p. 42. See also "The Origin of the State," Burgess' Pol. Sc. and Const. Law, bk. ii, ch. 2. son and obedience for his laws. He experiences no opposition in immediately exercising all governmental powers. He is priest, war chief, judge and legislator.' As war begets the king, so peace begets the judge and legislator. As his followers become peaceable and civilized, the king is appealed to for the enforcement of internal order and justice rather than for protection against external force. As these appeals grow numerous and the duty of satisfying them becomes more intricate, the sovereign, either as a matter of convenience, or in order to secure greater sanction for his acts and decisions, calls about him a council of wise and powerful men to hear, and to assist in determining, the questions presented, and also to advise him in the administration of his government. This royal council, owing to the fact that the functions required in determining individual appeals differ from those required in formulating rules to be observed in the administration of government, soon develops into two distinct bodies, the legislature and the judicial court. Notwithstanding the existence of these two advisory bodies, the king continues to execute his own will, which is still the supreme law. But, the intimacy necessarily arising between the king and his advisers soon breeds contempt. The shortcomings of the sovereign disclose to the wise and powerful men whom he has invited to assist him, the pious fraud which he has been exercising upon them. As they assert themselves, the sovereignty passes from the king to the lords; the state passes from the monarchic to the aristocratic form. The nobles, possessed of the sovereign power of the state, can now themselves assume, or can delegate to such authorities as they deem proper, the powers which the government may be called upon to exercise. They generally satisfy themselves. by exercising or participating in the exercise of an unlimited |