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 con❝trol, for the judge would then be the legislator. Were it join"ed 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 shall find, notwithstanding the emphatical, and in some instances, the unqualified terms in which this axiom has been laid down, that there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. NewHampshire, 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, exe"cutive, and judiciary powers, ought to be kept as separate from, "and independent of each other, as the nature of a free govern"ment will admit; or as is consistent with that chain of connexion, that binds the whole fabric of the constitution in one "indissoluble bond of unity and amity." Her constitution ac

* The king.

The

cordingly mixes these departments in several respects. 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 tye. 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 further, 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

ments.

eye to the danger, of improperly blending the different departIt gives, nevertherless, 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, consists of one branch of the legislature, and the principal members of the judiciary department.

The constitution of New Jersey has blended the different pow. ers 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; 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 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 impeachments 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. Through

* The constitutions of these states have been since altered.

out the state, 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 legislature; 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 executive department.

The language of Virginia is still more pointed on this subject. Her constitution declares, "that the legislative, execu"tive, 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 assem"bly." 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 triennally 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 one case vested in the legislative department.

The constitution of North Carolina, which declares, " that the "legislative, executive, and supreme judicial powers of govern66 ment, ought to be for ever 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, it is declared, that" the legis"lative, executive, and judiciary departments, shall be separate

"and distinct, so that neither exercise the powers properly be"longing to the other." Yet 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, 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 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.

PUBLIUS.

NUMBER XLVIII.

BY MR. MADISON.

The same subject continued, with a view to the means of giving efficacy in praetice to that maxim.

Ir was shown in the last paper, that the political apothegm there examined, does not require that the legislative, executive, and judiciary departments, should be wholly unconnected with each other. I shall undertake in the next place to show, that