The Principles of the Administrative Law of the United States (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: CHAPTER III. THE THEORY OF THE SEPARATION OF POWERS. The attempt made in England, as a result of the struggles of the revolutionary movements of the seventeenth century, to separate the functions which have been spoken of as politics and administration, and to entrust the discharge of each of these functions to a separate governmental authority,1 combined with the independence accorded to the courts, to which allusion has been made, led the great French political philosopher Montesquieu to the formulation of his famous theory of the separation of powers. In his Esprit des Lois2 he distinguished three powers of government, which he called respectively the legislative, the executive, and the judicial. This differentiation of three rather than two governmental functions, was probably due to the fact that Montesquieu's theory was, as has been indicated, derived very largely from a study of English institutions. England was almost the only country of the civilized world which, at the time he wrote, made a distinction in its governmental organization between the executive and judicial authorities. This was made finally by the Act of Settlement in 1701, which prevented the Crown from removing the judges except uponthe address of Parliament.1 It was only natural that Montesquieu should find in this independence of the judiciary the recognition of a judicial power separate from, and independent of, the executive power. 1 On this point see Ford, op. fit., p. 28. Book xi., chap. iv. If, however, Montesquieu had carried his researches further, he would have seen that the existence of this third function of government, i. e., the judicial power, could not be proven by the mere fact of the independence of the judges. A study of the powers of the judges of the higher courts, and par...