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 certan 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 depository 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 judg "ing 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 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 not 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 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 con"nexion, that binds the whole fabric of the constitution in one "indissoluble bond of unity and amity." Her constitution ac

* The King.

cordingly 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 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

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, consists 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; 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, constitute the supreme court of appeals: He is joined with the legislative department in the appoint ment of the other judges. Throughout the state, it appears

The constitutions of these states have been since altered.

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 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, 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 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 govern"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 prin cipal 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 legisla❝tive, executive, and judiciary departments, shall be separate