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Basic Constitutional Concepts
to investigate the sense in which the preservation of liberty requires that
the three great departments of power should be separate and distinct.
The oracle who is always consulted and cited on this subject is the
celebrated Montesquieu. If he be not the author of this invaluable precept
in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavour in the first place to ascertain his meaning on this point.
The British Constitution was to Montesquieu what Homer has been to
the didactic writers on epic poetry. As the latter have considered the
work of the immortal bard 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 this great political critic appears to have
viewed the constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the
form of elementary truths, the several characteristic principles of that
particular system. That we may be sure, then, not to mistake his meaning
in this case, let us recur to the source from which the maxim was drawn.
On the slightest view of the British Constitution we must perceive that
the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms
an integral part of the legislative authority. He alone has the prerogative
of making treaties with foreign sovereigns, which when made have, under certain limitations, the force of legislative acts. All the members of the
judiciary department are appointed by him, can be removed by him on
the address of the two Houses of Parliament, and form, when he pleases
to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as on another hand, it is the sole depository 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.
From these facts, by which Montesquieu was guided, it may clearly be
inferred that in saying ‘‘there can be no liberty where the legislative and
executive powers are united in the same person, or body of magistrates,’’