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 inpeachment 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 Legis lature; 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

"tive, Executive, and Judiciary departments shall be "separate and distinct; so that neither exercise the pow"ers properly belonging to the other; nor shall any per66 son 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 offices, both Executive and Judiciary, are filled by the same department. The Executive prerogative of pardon, 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 of Government ought to be forever 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 with. in 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, where it is declared, "that the Legislative, Executive, and Judiciary depart"ments 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 pardon 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.

[From the New York Packet, Friday, February 1, 1788.]

THE FEDERALIST.

No. XLVII.

TO THE PEOPLE OF THE STATE OF NEW YORK:

IT

T was shown in the last paper, that the political apophthegm 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, Executive, 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 efficacy of the provision has been greatly overrated; and that some more adequate defence 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 impetuous

vortex.