of similarity between Roman and Anglo-Saxon fundamental laws lies in
the fact that both are concrete, and concern themselves little with
political doctrines. Both peoples drove straight at specific abuses,
without citing any principles of abstract right in justification of the
proposed reform.
In one respect Roman government differed fundamentally from that
of most modern states. The three functions of government which
Montesquieu clearly recognized, the executive, legislative, and
judicial, were not assigned to three different classes of officials
with as much care as they are today. Of course this lack of
differentiation is more noticeable in the early period than it is
in the later, but it persists even into the Empire. The Senate, for
instance, under the Empire not only legislated, but it nominally had
the right to elect the Emperor and the magistrates, and also sat as a
court to hear political charges made against members of the senatorial
order. Although the threefold division of governmental powers was
observed then only in part in the actual organization of the Roman
state, it was recognized by Aristotle and by Cicero in their works on
politics. The Greco-Roman doctrine on this subject was reaffirmed by
Bodin and Locke, as Garner has pointed out in his _Introduction to
Political Science_, before it was set forth as a fundamental principle
of political organization in the _Spirit of the Laws_. The teachings of
Montesquieu on this point became a part of the political philosophy of
the French Revolution. In England Blackstone maintained, as Montesquieu
had done, that there could be no public liberty when the right of
making and enforcing the law was vested in the same man or the same
body of men, or when the judicial power was not separated from the
legislative and executive. The makers of the Constitution of the United
States were profoundly influenced by Montesquieu and Blackstone,
and probably no modern constitution exemplifies so well as does the
American constitution the threefold division of powers recognized by
Cicero. As the Supreme Court has said in one of its decisions: “It
is believed to be one of the chief merits of the American system of
written constitutional law that all powers entrusted to the government,
whether state or national, are divided into three grand departments,
the executive, the legislative and the judicial; that the functions
appropriate to each of these branches of government shall be vested
in a separate body of public servants, and that the perfection of
the system requires that the lines which separate and divide these
departments shall be broadly and clearly defined.”
Public-domain text, read in full here on John Shaqi.
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