relations between that country
and her Colonies, the arbitrary acts of the British King and
Parliament, caused in the Colonies a profound study of the nature of
government: what should be its purposes and how best to effect its
purposes and avoid its abuses. The principal men among them in each
Colony were familiar with the history of governments and with the
theories of government advanced by European lawyers and political
philosophers. They were acquainted with the arguments of Montesquieu
and others that a separation of the powers of government and the
vesting of each, the executive, legislative, and judicial, in
different hands was essential to liberty. They did not merely
theorize, however. They had themselves lived and labored under
governments not thus divided in functions or only partially so.
Colonial governors had assumed legislative functions in the
promulgation of ordinances, and also judicial functions as judges of
probate and in other ways. The colonial legislatures did not hesitate
to dictate to the courts in particular cases and often acted as a
court of appeal. In Massachusetts Bay the legislature came to be known
as the General Court and exercised judicial power freely, sometimes
calling in the judges to sit with them. The same individual could at
one and the same time fill an executive and a legislative or judicial
office. In colonial Massachusetts William Stoughton held the offices
of military commander, lieutenant governor, and chief justice at the
same time. Because of the frequent and prolonged absences of the
titular governor he was often the acting governor. As an inevitable
consequence, when sitting as a judge he was more a zealous prosecutor
than an impartial judge. His conduct in the witchcraft trials was
comparable to that of Jeffreys in the infamous "Bloody Assizes."
Hutchinson was also often acting governor while holding his commission
as chief justice.

In view of their experience and deep study, the opinions formed by
the framers of the early constitutions of this country should be of
great weight in forming our own. It is worth while to cite the
opinions of some. Thomas Jefferson was not in his day, nor has he been
since, regarded as opposed to popular government. Virginia had as
early as 1776 declared in its first constitution that the three great
departments should be kept separate. Jefferson, who besides his other
opportunities of observing the operation of government was himself
c