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Basic Constitutional Concepts
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 indissoluble 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