restraint. It would itself
constitute public opinion and it would be less likely to fear
resistance.

It is evident, therefore, that the frame of government should be such
as to secure uniformity in its action so that it shall not act
arbitrarily and unequally on its subjects. I assume that no sane man
would desire to live under any government where the wielders of the
governmental power, one or many, are entirely without legal restraint.
We all desire normally, not only order and peace, but also personal
liberty and equality of rights. The problem, then, is how to order the
frame of government so that it shall be strong enough to protect us
individually as well as collectively, but not left able to oppress us
or any of us. As said by Alexander Hamilton, we "must first enable the
government to control the governed, and in the next place oblige it to
control itself."

One great step toward such a form of government was made in the
establishment of our federal and state governments by giving effect to
the theory of the tripartite nature of governmental powers, entrusting
each of the three to a different person or group of persons, or, in
other words, to a different department, each restraining the other
departments from exceeding their defined powers, so that the
government, however democratic, shall not run wild. At this day,
however, even this feature of our form of government is assailed as
hampering the people and their government and greatly delaying desired
reforms. It may be admitted that a government with its powers thus
separated in different departments is not able to act as quickly as
desired by zealous persons confident of the excellence of their
schemes and impatient for their realization, but, on the other hand,
it is less liable to act too hastily, less liable to act arbitrarily,
or to disregard individual rights and interests.

The idea of a division of governmental powers is not of recent origin.
Aristotle argued that the judges should have no other political power,
should not themselves enforce their decisions. In Rome under the
Republic there was divided between the pretor and the judex the power
to decide controversies. The pretor had other duties, but the judex
was confined to the single duty to hear and determine. The framers of
our Federal Constitution and of our early state constitutions did not
act hastily nor unadvisedly. As heretofore stated, the long
controversy with Great Britain over the