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,
self-appointed, 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; not 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 departments 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
council 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 inferior
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.
Signed "PUBLIUS"
|