THE ACCUMULATION of the legislative, executive, and judicial powers in the same hands – whether of one, a few, or many, and whether hereditary, self-appointed, or elective – may justly be pronounced the very definition of tyranny.
No political truth is certainly of greater intrinsic value – or is stamped with the authority of more enlightened patrons of liberty – than the doctrine of separation of powers.
This political maxim holds that the legislative, executive, and judicial departments ought to be separate and distinct.
Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other.
Separation of Powers as Described by Montesquieu
This invaluable precept in the science of politics was principally recommended to the attention of mankind by the Montesquieu, who is celebrated as the oracle on the subject.
Just as the didactic writers on epic poetry considered the immortal bard Homer as the perfect model from which the principles and rules of the epic art were to be drawn – and by which all similar works were to be judged – so did Montesquieu view the Constitution of England as the standard – or to use his own expression – “the mirror of political liberty.”
From the several characteristic principles of that particular system, he deduced several elementary truths, of which the separation of powers is one. To be sure not to mistake his meaning, I refer to the British Constitution, the source from which the maxim was drawn.
The Constitution of Great Britain Intermingles Powers
Even the slightest view of the British Constitution discloses the legislative, executive, and judicial departments are by no means totally separate and distinct from each other.
The king – who is the sole executive magistrate – forms an integral part of the legislative authority.
The king alone has the prerogative of making treaties with foreign sovereigns, which when made have the force of legislative acts, with certain limitations.
All the members of the judiciary are appointed by this magistrate, who can remove them on the address of the two Houses of Parliament, and can form – when the king pleases to consult them – one of the magistrate’s constitutional councils.
In the legislative department, one of its branches is the sole depositary 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.
Separation of Powers Requires Only that One Department Does Not Wholly Control Another, Not that Departments Be Wholly Separate
When Montesquieu wrote there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates, and that the power of judging needs be separated from the legislative and executive powers, he did not mean that the three departments ought to have no partial agency in – or no control over – the acts of each other.
As shown by his words and illustrated by the example in his eye, his meaning amounts to no more than this: 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.
In the case of Great Britain, a true violation of separation of powers would exist if the king (as the sole executive magistrate) also possessed the complete legislative power, or the supreme administration of justice.
A violation also would occur if the entire legislative body possessed either the supreme judicial authority or the supreme executive authority. These, however, are not among the vices of that constitution.
The king (in whom the whole executive power resides) cannot of himself make a law, although he can put a negative on every law the legislature passes.
The king also cannot administer justice in person, although he has the power of appointment of those who do administer it.
The judges can exercise no executive prerogative, although though they are shoots from the executive stock.
Nor do judges perform any legislative function, although they may offer advice to the legislative councils.
The entire legislature can perform no judicial act, although by the joint act of two of its branches a judge may be removed from office, and one of its branches (the House of Lords) is possessed of the judicial power of last resort, as with our Supreme Court.
The entire legislature, again, can exercise no executive prerogative, although 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 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.”
These brief passages (to which I have added emphasis) sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
Separation of Powers Applied to the Constitution
Some opposed to the Constitution argued no regard was paid to this essential precaution in favor of liberty in the structure of the Federal government, since the several departments of power are so distributed and blended as to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts.
Were the federal Constitution really chargeable with such an accumulation of power – or with a mixture of powers having a dangerous tendency toward such an accumulation – no further arguments would be necessary to inspire a universal reprobation of the system.
The charge is unsupported, though, and the maxim on which it relies has been totally misconceived and misapplied.
Separation of Powers in State Constitutions
Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
New Hampshire
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, with my emphasis, “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 indissoluble bond of unity and amity.”
Her constitution accordingly mixes these departments in several respects.
The senate – 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 has an equal vote in all cases as well as a casting vote in the case of a tie.
The executive head is elected 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 the State are also appointed by the legislature. And the members of the judicial department are appointed by the executive department.
Massachusetts
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, and is not violated by the plan of the Convention on any single point.
The Massachusetts constitution goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.
The same constitution admits a partial mixture of powers.
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 department and the judiciary.
The members of the judicial department are appointed by the executive department, and removable by the same authority on the address of the two legislative branches.
Lastly, a number of governmental officers are annually appointed by the legislative department.
Since the power to appoint to offices – particularly executive offices – is in its nature an executive function, the compilers of the Massachusetts constitution have in this respect violated the rule established by themselves.
Furthermore, if we look into the constitutions of the several States, I find there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.
Rhode Island and Connecticut
I pass over the constitutions of Rhode Island and Connecticut because they were formed prior to the Revolution, before the principle under examination had even become an object of political attention.
New York
The constitution of New York contains no declaration on this subject, but it appears very clearly to have been framed with an eye to the danger of improperly blending the different departments.
Nevertheless, it gives the executive magistrate a partial control over the legislative department; moreover, it gives a like control to the judicial department, and even blends the executive and judicial 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 both executive and judicial officers, 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.
New Jersey
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.
He is chancellor and surrogate of the State, a member of the supreme court of appeals, and president (with a deciding 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 judicial department are appointed by the legislative department and removable by one branch of it, on the impeachment of the other.
Pennsylvania
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, the president appoints the members of the judiciary, and forms a court of impeachment for trial of all judicial and executive officers.
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 is to be referred to the same department.
The members of the executive council are made ex officio justices of peace throughout the State.
Delaware
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 supreme court of appeals is composed of the executive chief and six others, with three appointed by each of the two legislative branches.
The executive is joined with the legislative department in the appointment of the other judges.
The members of the executive council and one branch of the legislature are ex officio justices of the peace. (Indeed, throughout the States it appears members of the legislature may at the same time be justices of the peace.)
The principal officers of the executive department are appointed by the legislature, and one of its branches 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. Notwithstanding this declaration, her constitution gives to the legislative department he power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.
Maryland
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.
Notwithstanding this declaration, her constitution gives to the legislative department the power to appoint the executive magistrate, and the executive department the power to appoint members of the judiciary.
Virginia
The language of Virginia is still more pointed on this subject.
Her constitution declares “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.”
Besides this express exception with respect to the members of the county courts, we also find the chief magistrate and executive council are appointed by the legislature, which also fills all the offices of the executive and judicial, and exercises the executive prerogative of pardon.
North Carolina
The constitution of North Carolina declares “the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other.”
Yet in that State the legislative department appoints not only the chief executive chief, but all of the executive offices, as well as those of the judiciary.
South Carolina
Under South Carolina’s constitution, the legislative department selects the executive magistrate, and appoints officers in the executive department all the way down to captains in the State army and navy.
The legislature also appoints members of the judicial department, including even justices of the peace and sheriffs.
Georgia
The constitution of Georgia declares “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.”
Yet we find the executive department is filled by appointments of the legislature, which also exercises the executive prerogative of pardon.
Even justices of the peace are appointed by the legislature.
While Many State Constitutions Declare in Favor of Separation of Powers, in Practice Powers Are Often Mixed
In citing these cases in which the legislative, executive, and judicial departments have not been kept totally separate and distinct, I should not be regarded as an advocate for the particular organizations of the several State governments.
Although the State constitutions cite many excellent principles, they seemed to have been framed by inexperienced hands moving hastily.
In some instances the fundamental principle under consideration has been violated by too great a mixture – even an actual consolidation – of the different powers.
And in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.
These facts disprove the charge that the proposed Constitution violates the sacred maxim of free government based on the separation of powers.
The charge 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 Federalist 48.
Madison