"William Penn"
No. 2
3 Jan. 1788
The next principle, without which it must be clear that no free
government can ever subsist, is the DIVISION OF POWER among those
who are charged with the execution of it. It has always been the
favorite maxim of princes, to divide the people, in order to
govern them; it is now time that the people should avail
themselves of the same maxim, and divide power among their
rulers, in order to prevent their abusing it--The application of
this great political truth, has long been unknown to the world, and
yet it is grounded upon a very plain natural principle,--If, says
Montesquieu, the same man, or body of men, is possessed both of the
legislative and executive power, there is NO LIBERTY, because it may
be feared that the same monarch, or the same senate, will enact
tyrannical laws, in order to execute them in a tyrannical
manner--nothing can be clearer, and the natural disposition of man,
to ambition and power, makes it probable that such would be the
consequence--suppose for instance, that the same body, which has the
power of raising money by taxes, is also entrusted with the
application of that money, they will very probably raise large sums,
and apply them to their own private uses; if they are empowered to
create offices, and appoint the officers, they will take that
opportunity of providing for themselves, and their friends, and if
they have the power of inflicting penalties for offences, and of
trying the offenders, there will be no bounds to their tyranny.
Liberty therefore can only subsist, where the powers of government
are properly divided, and where the different jurisdictions are
inviolably kept distinct and separate.
The first and most natural division of the powers of government are
into the legislative and executive branches. These two should never
be suffered to have the least share of each others jurisdiction, or
to intermeddle with it in any manner. For which ever of the two
divides its power with the other, will certainly be subordinate to
it, and if they both have a share of each others authority, they
will be in fact but one body; their interest as well as their powers
will be the same, and they will combine together against the people.
It is therefore a political error of the greatest magnitude, to
allow the executive power a negative, or in fact any kind of control
over the proceedings of the legislature. The people of Great Britain
have been so sensible of this truth, that since the days of William
III, no king of England has dared to exercise the negative over the
acts of the two houses of parliament, to which he is clearly
entitled by his prerogative.
This doctrine is not novel in America, it seems on the contrary to
be every where well understood and admitted beyond controversy; in
the bills of rights or constitutions of New-Hampshire,
Massachusetts, Maryland, Virginia, North-Carolina and
Georgia, it is expressly declared. "That the legislative,
executive and judicial departments, shall be forever separate and
distinct from each other." In Pennsylvania and Delaware,
they are effectually separated without any particular declaration of
the principle. In the other states indeed, the executive branch
possesses more or less of the executive [legislative?] power--And
here it must appear singular that the state of Massachusetts, where
the doctrine of a separate jurisdiction is most positively
established, and in whose bill of rights these remarkable words are
to be found: "The executive shall never exercise the legislative and
judicial powers, or either of them, to the end it may be a
government of laws and not of men." (ยง30) Yet in that commonwealth
and New-Hampshire, the executive branch, which consists of a single
magistrate, has more controul over the legislature than in any
other state; for there, if the governor refuses his assent to a
bill, it cannot be passed into a law, unless two-thirds of the house
afterwards concur. In New-York the same power is given to a Council
of Revision, consisting of the Governor, the Chancellor and Judges
of the Supreme Court, or any three of them, of which the Governor is
to be one. In Rhode-Island and Connecticut, whose governments were
established before the revolution, the Governor has a single vote as
a member of the upper house, and New-Jersey has adopted this part of
their constitution. In Georgia the laws are to be revised by the
Governor and Council, but they can do no more than give their
opinion upon them. In Maryland the bills are to be signed by the
governor before they can be enacted, and in South-Carolina they are
to be sealed with the great seal, which is in the governor's
custody. But in the first of these states, the constitution
prescribes, that the governor shall sign the bills, and in
the latter, a joint committee of both houses of legislature is to
wait upon chief magistrate to receive and return the great seal,
which implies that he is bound to deliver it to them, for the
special purpose of affixing it to the laws of the state.
Pennsylvania has proceeded upon a much more rational ground, their
legislature having a particular seal of their own, and their
laws requiring only to be signed by the speaker. If in Maryland or
South-Carolina a difference should ever arise between the
legislature and the governor, and the latter should refuse to sign
the laws, or to deliver the great seal, the most fatal consequences
might ensue.
Here then we see the great leading principle of the absolute
division of the legislative from the executive jurisdiction,
admitted in almost every one of the American states as a fundamental
maxim in the politics of a free country. The theory of this general
doctrine is every where established, though a few states have
somewhat swerved from it in the practice. From whence we must
conclude, that even the knowledge and full conviction of a new
political truth will not always immediately conquer inveterate
habits and prejudices. The idea of the negative, which the
constitution of England gives to the monarch over the proceedings of
the other branches of parliament, although it has so long become
obsolete, has had an effect upon timid minds, and upon the minds of
those who could not distinguish between the form and spirit
of the British constitution. They would not grant to the executive
branch an absolute negative over the legislature, but yet they tried
every method to introduce something similar to it. They reprobated
the doctrine in the most express words, and yet they could not bear
to part entirely with it. It is curious to observe how many
different ways they have endeavored to conciliate truth with
prejudice. Of those states who have allowed the executive branch to
intermeddle with the proceedings of the legislature, no two
(New-Hampshire and Massachusetts excepted) have done it exactly in
the same manner. They have tried every possible medium, but having
lost sight of the original principle which they had already
established, and which alone could have been their safest guide,
they groped about in the dark, and could not find any solid ground
on which to establish a general rule. Like Noah's dove, being once
out of the ark of truth, they could not find elsewhere a place to
rest their feet.
Source Storing, Herbert J., ed. The
Complete Anti-Federalist. 7 vols. Chicago: University of
Chicago Press, 1981, 3.12.13--17.