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 departments, shall exercise any power properly attached to either
of the others, except in the instances herein expressly permitted.” In the constitution of 1851 the same principle is
found in Article 111, Section 1 : “The powers of the government are divided into three separate departments; the legislative, 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 applications 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 University, 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
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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 philosopher. 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 (10vols., 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
W a y to Establish a Free Comnwnwealth, upon which he commented:
“Can one read, without shuddering, this wild reverie of the divine, immortal 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 ambition, 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 oligarchy, 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 p w n in
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 performance, or from ‘The Preaent Means and Brief Delineation of a Free C m
nwnwalth,’ in his letter to General Monk.”
‘John k k e , Two Treatises of Government, edited by Thomas I.
Cook (NewYork, 1947), k.
Separation of Powers in the Indiana Constitution
369
second paragraph of the Declaration of Independence. Moreover, 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 England, Locke was on new ground so f a r as theory was concerned when he set forth his doctrine of separation of powers.6
The rapid succession of royal absolutism, parliamentary absolutism, 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 preservation of the society and, as f a r 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 unalterable 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 judicial power, limits the legislative power: “The legislative or
supreme authority cannot assume to itself a power by extemporary, arbitrary decrees, but is bound to dispense justice 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.
e l b i d . , 189.
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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 i t 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 delinq~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 commonwealth 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 private advantage, and therefore come to have a distinct interest from the rest of the community contrary to the end
of society and government; therefore, in well ordered commonwealths, where the good of the whole is so considered as
i t ought, the legislative power is put into the hands of divers
persons who, duly assembled, have by themselves, o r 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
e l b i d . , 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 traveled to the Americans since he formulated his curious plans
for Carolina with the proprietors the center of power. However, the Americans were to merge the federative power (war
and alliances) with the executive, and add a clearcut judicial power.
Montesquieu’s ( 1689-1755) virile passion for liberty
made his name a battle cry for the Americans. The alignment 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 before 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, executive, 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 freedom.”
James Bryce, T h American Commonwealth (2 vols., New York, 1914),
I, 29.
1 4 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 o f the
History o f 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
.
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Zndkmz Magazine of History
Evidently Montesquieu worked with both France and
England in mind. Taking what, he thought to be the constitution of England as his model, he proclaimed its merits due
to the division of legislative, executive, and judicial functions; and to the system of checks and balances which preserved the system.lo But one must keep in mind Montesquieu’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 governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought
of the contemporary situation in France, primarily interested in the
roblem of securing a n independent status for judges, it was natural for
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 federative power emerged as the executive power with Montesquieu. By elaborating 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 picture of the ideal balancef state, guaranteeing liberty, which fascinated
the eighteenth century with its passion for dynamic symmetry and constructive s eculations. It was of the greatest moment that these constructions 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 Britunnicu 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 examples 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 visionary enthusiasm, from egotism, and from an undue spirit of system.”
1 7 Charles A. Beard, A&n
Governmnt and Politics (New York,
1919), 162: “In point of fact, however, the doctrine, as f a r as Montesquieu 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.”
R
Separation o f 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, i t 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 i t 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 Indiana 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 Z W , 161-162.
21zirid.,
182.
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374
ments, and the federal government after 1787.22For Indiana
the most immediate factor was the examples of Ohio, Ken2 2 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 University of Pennsylvania Law Review and American Law Registm (Philadelphia, 1852), LXX.XV1 (1937-1938), 842-843. Also Paul Merrill
Spurlin, Montesquzeu an America, 1760-1 801 (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 preserving liberty it does not seem that they had a strong appeal. Blackstone may be used as a n example. “Throughout the Revolution the Blackstonian doctrine of ‘legislative omnipotence’ was in the ascendant.” Edward S. Convin, “The Progress of Constitutional Theory Between the
Declaration of Independence and the Meeting of the Philadelphia Convention,” 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. However, 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, o r 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 Enghnd ( 2 vols., Philadelphia, 1856), I, 105. And as it is stated in a n edition
that placed the thought in more recent language: “But, where the legislative 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 (Washington, 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, perhaps, 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 opinion: “modern political science must emancipate itself from the deadweight of the separation of powers doctrine which, much against Montesquieu’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 inclined 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 freedom, 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,
b d o n expedience and not on dogma. Liberty i s not threatened by
.”
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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 society that makes the rise of contending political forces impossible o r difficult. A pluralistic social structure and a flexible multi-party s stem
a r e f a r 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 i t to a parliamentary control and assuring popular participation 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 democracy 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 American 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 government is established. Whether o r 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.