fp47.txt

HAVING reviewed the general form of the proposed government and the general 
        mass of power allotted to it, I proceed to examine the particular structure 
        of this government, and the distribution of this mass of power among its 
        constituent parts. One of the principal objections inculcated by the more 
        respectable adversaries to the Constitution, is its supposed violation 
        of the political maxim, that the legislative, executive, and judiciary 
        departments ought to be separate and distinct. In the structure of the 
        federal government, no regard, it is said, seems to have been paid to 
        this essential precaution in favor of liberty. The several departments 
        of power are distributed and blended in such a manner as at once to destroy 
        all symmetry and beauty of form, and to expose some of the essential parts 
        of the edifice to the danger of being crushed by the disproportionate 
        weight of other parts. No political truth is certainly of greater intrinsic 
        value, or is stamped with the authority of more enlightened patrons of 
        liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, 
        in the same hands, whether of one, a few, or many, and whether hereditary, 
        selfappointed, or elective, may justly be pronounced the very definition 
        of tyranny. Were the federal Constitution, therefore, really chargeable 
        with the accumulation of power, or with a mixture of powers, having a 
        dangerous tendency to such an accumulation, no further arguments would 
        be necessary to inspire a universal reprobation of the system. I persuade 
        myself, however, that it will be made apparent to every one, that the 
        charge cannot be supported, and that the maxim on which it relies has 
        been totally misconceived and misapplied. In order to form correct ideas 
        on this important subject, it will be proper to investigate the sense 
        in which the preservation of liberty requires that the three great departments 
        of power should be separate and distinct. The oracle who is always consulted 
        and cited on this subject is the celebrated Montesquieu. If he be not 
        the author of this invaluable precept in the science of politics, he has 
        the merit at least of displaying and recommending it most effectually 
        to the attention of mankind. Let us endeavor, in the first place, to ascertain 
        his meaning on this point. The British Constitution was to Montesquieu 
        what Homer has been to the didactic writers on epic poetry. As the latter 
        have considered the work of the immortal bard as the perfect model from 
        which the principles and rules of the epic art were to be drawn, and by 
        which all similar works were to be judged, so this great political critic 
        appears to have viewed the Constitution of England as the standard, or 
        to use his own expression, as the mirror of political liberty; and to 
        have delivered, in the form of elementary truths, the several characteristic 
        principles of that particular system. That we may be sure, then, not to 
        mistake his meaning in this case, let us recur to the source from which 
        the maxim was drawn. On the slightest view of the British Constitution, 
        we must perceive that the legislative, executive, and judiciary departments 
        are by no means totally separate and distinct from each other. The executive 
        magistrate forms an integral part of the legislative authority. He alone 
        has the prerogative of making treaties with foreign sovereigns, which, 
        when made, have, under certain limitations, the force of legislative acts. 
        All the members of the judiciary department are appointed by him, can 
        be removed by him on the address of the two Houses of Parliament, and 
        form, when he pleases to consult them, one of his constitutional councils. 
        One branch of the legislative department forms also a great constitutional 
        council to the executive chief, as, on another hand, it is the sole depositary 
        of judicial power in cases of impeachment, and is invested with the supreme 
        appellate jurisdiction in all other cases. The judges, again, are so far 
        connected with the legislative department as often to attend and participate 
        in its deliberations, though not admitted to a legislative vote. From 
        these facts, by which Montesquieu was guided, it may clearly be inferred 
        that, in saying "There can be no liberty where the legislative and executive 
        powers are united in the same person, or body of magistrates," or, "if 
        the power of judging be not separated from the legislative and executive 
        powers," he did not mean that these departments ought to have no PARTIAL 
        AGENCY in, or no CONTROL over, the acts of each other. His meaning, as 
        his own words import, and still more conclusively as illustrated by the 
        example in his eye, can amount to no more than this, that where the WHOLE 
        power of one department is exercised by the same hands which possess the 
        WHOLE power of another department, the fundamental principles of a free 
        constitution are subverted. This would have been the case in the constitution 
        examined by him, if the king, who is the sole executive magistrate, had 
        possessed also the complete legislative power, or the supreme administration 
        of justice; or if the entire legislative body had possessed the supreme 
        judiciary, or the supreme executive authority. This, however, is not among 
        the vices of that constitution. The magistrate in whom the whole executive 
        power resides cannot of himself make a law, though he can put a negative 
        on every law; nor administer justice in person, though he has the appointment 
        of those who do administer it. The judges can exercise no executive prerogative, 
        though they are shoots from the executive stock; nor any legislative function, 
        though they may be advised with by the legislative councils. The entire 
        legislature can perform no judiciary act, though by the joint act of two 
        of its branches the judges may be removed from their offices, and though 
        one of its branches is possessed of the judicial power in the last resort. 
        The entire legislature, again, can exercise no executive prerogative, 
        though one of its branches constitutes the supreme executive magistracy, 
        and another, on the impeachment of a third, can try and condemn all the 
        subordinate officers in the executive department. The reasons on which 
        Montesquieu grounds his maxim are a further demonstration of his meaning. 
        "When the legislative and executive powers are united in the same person 
        or body," says he, "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: "Were the power of judging 
        joined with the legislative, the life and liberty of the subject would 
        be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all 
        the violence of AN OPPRESSOR. " Some of these reasons are more fully 
        explained in other passages; but briefly stated as they are here, they 
        sufficiently establish the meaning which we have put on this celebrated 
        maxim of this celebrated author. If we look into the constitutions of the several States, we find that, 
        notwithstanding the emphatical and, in some instances, the unqualified 
        terms in which this axiom has been laid down, there is not a single instance 
        in which the several departments of power have been kept absolutely separate 
        and distinct. New Hampshire, whose constitution was the last formed, seems 
        to have been fully aware of the impossibility and inexpediency of avoiding 
        any mixture whatever of these departments, and has qualified the doctrine 
        by declaring "that the legislative, executive, and judiciary powers ought 
        to be kept as separate from, and independent of, each other AS THE NATURE 
        OF A FREE GOVERNMENT WILL ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF 
        CONNECTION THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION IN ONE INDISSOLUBLE 
        BOND OF UNITY AND AMITY. " Her constitution accordingly mixes these departments 
        in several respects. The Senate, which is a branch of the legislative 
        department, is also a judicial tribunal for the trial of impeachments. 
        The President, who is the head of the executive department, is the presiding 
        member also of the Senate; and, besides an equal vote in all cases, has 
        a casting vote in case of a tie. The executive head is himself eventually 
        elective every year by the legislative department, and his council is 
        every year chosen by and from the members of the same department. Several 
        of the officers of state are also appointed by the legislature. And the 
        members of the judiciary department are appointed by the executive department. 
        The constitution of Massachusetts has observed a sufficient though less 
        pointed caution, in expressing this fundamental article of liberty. It 
        declares "that the legislative department shall never exercise the executive 
        and judicial powers, or either of them; the executive shall never exercise 
        the legislative and judicial powers, or either of them; the judicial shall 
        never exercise the legislative and executive powers, or either of them. 
        " This declaration corresponds precisely with the doctrine of Montesquieu, 
        as it has been explained, and is not in a single point violated by the 
        plan of the convention. It goes no farther than to prohibit any one of 
        the entire departments from exercising the powers of another department. 
        In the very Constitution to which it is prefixed, a partial mixture of 
        powers has been admitted. The executive magistrate has a qualified negative 
        on the legislative body, and the Senate, which is a part of the legislature, 
        is a court of impeachment for members both of the executive and judiciary 
        departments. The members of the judiciary department, again, are appointable 
        by the executive department, and removable by the same authority on the 
        address of the two legislative branches. Lastly, a number of the officers of government are annually appointed 
        by the legislative department. As the appointment to offices, particularly 
        executive offices, is in its nature an executive function, the compilers 
        of the Constitution have, in this last point at least, violated the rule 
        established by themselves. I pass over the constitutions of Rhode Island 
        and Connecticut, because they were formed prior to the Revolution, and 
        even before the principle under examination had become an object of political 
        attention. The constitution of New York contains no declaration on this 
        subject; but appears very clearly to have been framed with an eye to the 
        danger of improperly blending the different departments. It gives, nevertheless, 
        to the executive magistrate, a partial control over the legislative department; 
        and, what is more, gives a like control to the judiciary department; and 
        even blends the executive and judiciary departments in the exercise of 
        this control. In its council of appointment members of the legislative 
        are associated with the executive authority, in the appointment of officers, 
        both executive and judiciary. And its court for the trial of impeachments 
        and correction of errors is to consist of one branch of the legislature 
        and the principal members of the judiciary department. The constitution 
        of New Jersey has blended the different powers of government more than 
        any of the preceding. The governor, who is the executive magistrate, is 
        appointed by the legislature; is chancellor and ordinary, or surrogate 
        of the State; is a member of the Supreme Court of Appeals, and president, 
        with a casting vote, of one of the legislative branches. The same legislative 
        branch acts again as executive council of the governor, and with him constitutes 
        the Court of Appeals. The members of the judiciary department are appointed 
        by the legislative department and removable by one branch of it, on the 
        impeachment of the other. According to the constitution of Pennsylvania, 
        the president, who is the head of the executive department, is annually 
        elected by a vote in which the legislative department predominates. In 
        conjunction with an executive council, he appoints the members of the 
        judiciary department, and forms a court of impeachment for trial of all 
        officers, judiciary as well as executive. The judges of the Supreme Court 
        and justices of the peace seem also to be removable by the legislature; 
        and the executive power of pardoning in certain cases, to be referred 
        to the same department. The members of the executive counoil are made 
        EX-OFFICIO justices of peace throughout the State. In Delaware, the chief 
        executive magistrate is annually elected by the legislative department. 
        The speakers of the two legislative branches are vice-presidents in the 
        executive department. The executive chief, with six others, appointed, 
        three by each of the legislative branches constitutes the Supreme Court 
        of Appeals; he is joined with the legislative department in the appointment 
        of the other judges. Throughout the States, it appears that the members 
        of the legislature may at the same time be justices of the peace; in this 
        State, the members of one branch of it are EX-OFFICIO justices of the 
        peace; as are also the members of the executive council. The principal 
        officers of the executive department are appointed by the legislative; 
        and one branch of the latter forms a court of impeachments. All officers 
        may be removed on address of the legislature. Maryland has adopted the 
        maxim in the most unqualified terms; declaring that the legislative, executive, 
        and judicial powers of government ought to be forever separate and distinct 
        from each other. Her constitution, notwithstanding, makes the executive 
        magistrate appointable by the legislative department; and the members 
        of the judiciary by the executive department. The language of Virginia 
        is still more pointed on this subject. Her constitution declares, "that 
        the legislative, executive, and judiciary departments shall be separate 
        and distinct; so that neither exercise the powers properly belonging to 
        the other; nor shall any person exercise the powers of more than one of 
        them at the same time, except that the justices of county courts shall 
        be eligible to either House of Assembly. " Yet we find not only this 
        express exception, with respect to the members of the irferior courts, 
        but that the chief magistrate, with his executive council, are appointable 
        by the legislature; that two members of the latter are triennially displaced 
        at the pleasure of the legislature; and that all the principal offices, 
        both executive and judiciary, are filled by the same department. The executive 
        prerogative of pardon, also, is in one case vested in the legislative 
        department. The constitution of North Carolina, which declares "that 
        the legislative, executive, and supreme judicial powers of government 
        ought to be forever separate and distinct from each other," refers, at 
        the same time, to the legislative department, the appointment not only 
        of the executive chief, but all the principal officers within both that 
        and the judiciary department. In South Carolina, the constitution makes 
        the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary 
        department, including even justices of the peace and sheriffs; and the 
        appointment of officers in the executive department, down to captains 
        in the army and navy of the State. In the constitution of Georgia, where it is declared "that the legislative, 
        executive, and judiciary departments shall be separate and distinct, so 
        that neither exercise the powers properly belonging to the other," we 
        find that the executive department is to be filled by appointments of 
        the legislature; and the executive prerogative of pardon to be finally 
        exercised by the same authority. Even justices of the peace are to be 
        appointed by the legislature. In citing these cases, in which the legislative, 
        executive, and judiciary departments have not been kept totally separate 
        and distinct, I wish not to be regarded as an advocate for the particular 
        organizations of the several State governments. I am fully aware that 
        among the many excellent principles which they exemplify, they carry strong 
        marks of the haste, and still stronger of the inexperience, under which 
        they were framed. It is but too obvious that in some instances the fundamental 
        principle under consideration has been violated by too great a mixture, 
        and even an actual consolidation, of the different powers; and that in 
        no instance has a competent provision been made for maintaining in practice 
        the separation delineated on paper. What I have wished to evince is, that 
        the charge brought against the proposed Constitution, of violating the 
        sacred maxim of free government, is warranted neither by the real meaning 
        annexed to that maxim by its author, nor by the sense in which it has 
        hitherto been understood in America. This interesting subject will be 
        resumed in the ensuing paper.