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 de partment, 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 administra tion 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 Legisla"tive, 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 indis"soluble 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 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 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, constitute 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 depart

ment.

The language of Virginia is still more pointed on this subject. Her Constitution declares, "that the Legisla