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tive, and judiciary departments, shall be separate and distinct; 80 that neither exercise the powers properly belonging to tho other; por shall any person exercise the powers of more than one of them at the same time; except that tho 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 inferiour courts; but that the chief magistrate, with his executive council, aro 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, aro filled by the samo 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 powers government, 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 justicos 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 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, executiro, and judiciary departments, have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the par
ticular 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 froo government, is warranted neither by tho real meaning annexed to that maxim by its author, nor by the sonso in which it has hithorto been undorstood in Amorioa This interesting subject will be resumed in the ensuing paper.
NEW YORK, FEBRUARY 1, 1788.
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 legislative, executive, and judiciary departments, should be wholly unconnected with each other. I shall undertake in the next place to show, that unless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation 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, executivo, 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 solved.
Will it be sufficient to mark, with precision, the boundaries 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 eff cacy of the provision has been greatly overrated; and that some more adequate defonce is indispensably necessary for the more feeble, against the more powerful members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impotr. uous 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 errours into which they have fallen. A respect for truth, however, obliges us to remark, that they soem never for a moment to have turned their eyes from the danger to liberty, from the overgrown and allgrasping 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 samo hands, must lead to the same tyranny as is threatened by oxocutivo usurpations.
In a government whore numerous and extensive prerogatives ure placed in tho hands of an horeditary 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 executive magistrates, tyranny may well be apprehonded on some favourablo emergency, to start up in the same quarter' But in a
represents tive-republic., where the executive magistracy is carefully limited, both in the extent and the duration of its power; and wliore the legislative power is exercisod 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 ambition 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 departments. 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 landmarks, 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 former.
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 evi.