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tive: 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 for ever 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 execntive department.
The language of Virginia is still more pointed on this subject. Her constitution declares, “that the legislative, ó executive, and judiciary departments, shall be separate 6 and distinct; so that neither exercise the powers pro“perly belonging to the other; nor shall any persoa “ 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 interior 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 officers, both executive and judiciary, are filled by the same department. The executive prerogative of pardoning, also, is in one case vested in the legislative department.
The constitution of North Carolina, which declares, “ that the legislative, executive, and supreme judicial 66
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 sheriff's; 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 depart"ments, shall be separate and distinct, so that neither 66 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 pardoning, 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, execu. tive, and judiciary departments, have not been kept total. ly 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 propos: d constitution, of violating a 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.
BY JAMES MADISON.
The same subject continued, with a view to the means of
giving efficacy in practice to that maxim.
IT was shown in the last paper, that the political apothegm there examined, does not require that the legis. lative, executive, and judiciary departments, should be wholly unconnected with each other. I shall undertake in the next place to sbow, that unless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of sepa. ration which the maxim requires, as essential to a free government, can never in practice be duly maintained.
It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provide some practical security for each, against the invasion of the others. What this security ought to be, is the great problem to be sulved.
Will it be sufficient to mark, with precision, the boun. daries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power ? This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated ; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government. The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.
The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty,
from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.
In a government where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their exe. cutive magistrates, tyranny may well be apprehended, on some favourable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength ; which is sufficiently numerous to feel all the passions which actuate -a multitude ; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes ; it is against the enterprising ambi. tion of this department, that the people ought to indulge all their jealousy, and exhaust all their precautions.
The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate de. partments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass,
and being more simple in its nature; and the judiciary being described by land-marks, still less uncertain, projects of usurpation by either of these departments, would immediately betray and defeat themselves. Nor is this all : as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all, a prevailing influence over the pecuniary rewards of those who fill the other departments ; a dependence is thus created in the latter, which gives still greater facility to encroachments of the for
I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might collect vouchers in abundance from the records and archives of every state in the union. But as a more concise, and at the same time equally satisfactory evidence, I will refer to the example of two states, attested by two unexceptionable authorities.
The first example is that of Virginia, a state which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jeffer. son, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage
of some length from his very interesting “ Notes on the « state of Virginia,” (p. 195.) “ All the powers of
government, legislative, executive, and judiciary, “ sult to the legislative body. The concentrating these “ in the same hands, is precisely the definition of des
potic government. It will be no alleviation that these
powers will be exercised by a plurality of bands, “ and not by a single one. One hundred and seventy“ three despots would surely be as oppressive as one. “ Let those who doubt it, turn their eyes on the republic