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CHAPTER VII.

DISTRIBUTION OF POWERS.

§ 263. In surveying the general structure of the constitution of the United States, we are naturally led to an examination of the fundamental principles, on which it is organized, for the purpose of carrying into effect the objects disclosed in the preamble. Every government must include within its scope, at least if it is to possess suitable stability and energy, the exercise of the three great powers, upon which all governments are supposed to rest, viz. the executive, the legislative, and the judicial powers. The manner and extent, in which these powers are to be exercised, and the functionaries, in whom they are to be vested, constitute the great distinctions, which are known in the forms of government. In absolute governments the whole executive, legislative, and judicial powers are, at least in their final result, exclusively confided to a single individual; and such a form of government is denominated a despotism, as the whole sovereignty of the state is vested in him. If the same powers are exclusively confided to a few persons, constituting a permanent sovereign council, the government may be appropriately denominated an absolute or despotic Aristocracy. If they are exercised by the people at large in their original sovereign assemblies, the government is a pure and absolute Democracy. But it is more common to find these powers divided, and separately exercised by independent functionaries, the executive power by one department, the legislative by another, and the judicial

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by a third; and in these cases the government is properly deemed a mixed one; a mixed monarchy, if the executive power is hereditary in a single person; a mixed aristocracy, if it is hereditary in several chieftains or families; and a mixed democracy or republic, if it is delegated by election, and is not hereditary. In mixed monarchies and aristocracies some of the functionaries of the legislative and judicial powers are, or at least may be hereditary. But in a representative republic all power emanates from the people, and is exercised by their choice, and never extends beyond the lives of the individuals, to whom it is entrusted. It may be entrusted for any shorter period; and then it returns to them again, to be again delegated by a new choice.

§ 264. In the convention, which framed the constitution of the United States, the first resolution adopted by that body was, that "a national, government ought to be established, consisting of a supreme legislative, judiciary, and executive." And from this fundamental proposition sprung the subsequent organization of the whole government of the United States.

§ 265. In the establishment of free governments, the division of the three great powers of government, the executive, the legislative, and the judicial, , among different functionaries, has been a favorite policy with patriots and statesmen. It has by many been deemed a maxim of vital importance, that these powers should for ever be kept separate and distinct. And accordingly we find it laid down with emphatic care in the bill of rights of several of the state constitutions.

§ 266. The general reasoning, by which the maxim is supported, independently of the just weight of the authority in its support, seems entirely satisfactory.

What is of far more value than any mere reasoning, experience has demonstrated it to be founded in a just view of the nature of government, and the safety and liberty of the people. And it is no small commendation of the constitution of the United States, that instead of adopting a new theory, it has placed this practical truth, as the basis of its organization. It has placed the legislative, executive, and judicial powers in different hands. It has, as we shall presently see, made their term of office and their organization different; and, for objects of permanent and paramount importance, has given to the judicial department a tenure of office during good behaviour; while it has limited each of the others to a term of years.

§ 267. But when we speak of a separation of the three great departments of government, and maintain, that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm, that they must be kept wholly and entirely separate and distinct, and have no common link of connexion or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands, which possess the whole power of either of the other departments;. and that such exercise of the whole would subvert the principles of a free constitution.

§ 268. How far the constitution of the United States, in the actual separation of these departments, and the occasional mixtures of some of the powers of each, has accomplished the objects of the great maxim, which we have been considering, will appear more fully, when a survey is taken of the ticular powers confided to each department.

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the true and only test must, after all, be experience, which corrects at once the errors of theory, and fortifies and illustrates the eternal judgments of

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CHAPTER VIII.

THE LEGISLATURE.

269. THE first article of the constitution contains the structure, organization, and powers, of the legislature of the Union. Each section of that article, and indeed, of every other article, will require a careful analysis, and distinct examination. It is proposed, therefore, to bring each separately under review, in the present commentaries, and to unfold the reasons, on which each is founded, the objections, which have been urged against it, and the interpretation, so far as it can be satisfactorily ascertained, of the terms, in which each is expressed.

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270. The first section of the first article is in the following words: "All legislative powers herein granted shall be vested in a congress of the United "States, which shall consist of a senate and house of "representatives."

§ 271. This section involves, as a fundamental rule, the exercise of the legislative power by two distinct and independent branches. Under the confederation, the whole legislative power of the Union was vested in a single branch. Limited as was that power, the concentration of it in a single body was deemed a prominent defect of the confederation. But if a single assembly could properly be deemed a fit receptacle of the slender and fettered authorities, confided to the federal government by that instrument, it could scarcely be consistent with the principles of a good government to entrust it with the more enlarged and vigorous powers delegated in the constitution.

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