Building the State and the Forging of a National

(Government (1781-1797

Naim Benmerabet* --Badji Mokhtar (Annaba) University

January 13, 2009

:Introduction

By 1776, the colonists realized that they needed to separate from

Great Britain On July 4, the colonists broke all their ties with England
by issuing their Declaration of Independence. The thirteen colonies
immediately became thirteen American states. The main author of
the Declaration of Independence was Thomas Jefferson, a lawyer
and farmer from Virginia who later became the third president. Two
of the most important ideas expressed in the Declaration of
Independence are that "all men are created equal" and that they
are entitled to "life, liberty, and the pursuit of happiness." The belief
in the equality for all is central to the idea of democracy in the
United States. Although not everyone in the United States has
always enjoyed equal rights, the idea of equality stated in the
Declaration of Independence has inspired generations of people to
fight for their for their rights and be tolerant of others.

When the thirteen colonies recovered their independence, they

found themselves confronted with many challenges in order to build
their state and to forge a national government able to meet the
expectations and realize the aspirations of the ex-British colonies
still haunted by more than a century and a half of British stifling
restriction of their freedom and abuse of their fundamental rights.

The Founding Fathers of the United States of America, like George

Washington, Thomas Jefferson, Alexander Hamilton, John Jay, and
others would find themselves engaged in a cut-throat diplomatic
battle to make the colonies rally to this global goal of establishing a
strong national government.

State Constitutions:

The success of the Revolution gave Americans the opportunity to

give legal form to their ideals as expressed in the Declaration of
Independence, and to remedy some of their grievances through

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state constitutions. As early as May 10, 1776, Congress had passed
a resolution advising the colonies to form new governments "such
as shall best conduce to the happiness and safety of their
constituents." Some of them had already done so, and within a year
after the Declaration of Independence, all but three had drawn up
constitutions.

The new constitutions showed the impact of democratic ideas. None

made any drastic break with the past, since all were built on the
solid foundation of colonial experience and English practice. But
each was also animated by the spirit of republicanism, an ideal that
had long been praised by Enlightenment philosophers.

Naturally, the first objective of the framers of the state constitutions

was to secure those "unalienable rights" whose violation had caused
the former colonies to repudiate their connection with Britain. Thus,
each constitution began with a declaration or bill of rights. Virginia's,
which served as a model for all the others, included a declaration of
principles: popular sovereignty, rotation in office, freedom of
elections, and an enumeration of fundamental liberties: moderate
bail and humane punishment, speedy trial by jury, freedom of the
press and of conscience, and the right of the majority to reform or
alter the government.

Other states enlarged the list of liberties to freedom of speech, of

assembly, and of petition. Their constitutions frequently included
such provisions as the right to bear arms, to a writ of habeas corpus,
to inviolability of domicile, and to equal protection under the law.
Moreover, all prescribed a three-branch structure of government --
executive, legislative, and judiciary -- each checked and balanced
by the others.

The Articles of Confederation:

The struggle with England had done much to change colonial

attitudes. Local assemblies had rejected the Albany Plan of Union in
1754, refusing to surrender even the smallest part of their
autonomy to any other body, even one they themselves had
elected. But in the course of the Revolution, mutual aid had proved

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effective, and the fear of relinquishing individual authority had
lessened to a large degree.

John Dickinson produced the "Articles of Confederation and

Perpetual Union" in 1776. The Continental Congress adopted them
in November 1777, and they went into effect in 1781, having been
ratified by all the states. Reflecting the fragility of a nascent sense
of nationhood, the Articles provided only for a very loose union. The
national government lacked the authority to set up tariffs, to
regulate commerce, and to levy taxes. It exercised little control over
international relations, especially because a number of states had
begun their own negotiations with foreign countries. Nine states had
their own armies, several their own navies. In the absence of a
sound common currency, the new nation conducted its commerce
with a curious hodgepodge of coins and a bewildering variety of
state and national paper bills, all fast depreciating in value.

The Problem of Expansion:

With the dust of the harrowing Revolution hardly settled, the United
States again had to face the old unsolved Western question, the
problem of expansion, with its complications of land, fur trade,
Indians, settlement, and local government. Lured by the richest land
yet found in the country, pioneers poured over the Appalachian
Mountains and beyond. By 1775 the far-flung outposts scattered
along the waterways had tens of thousands of settlers. Separated
by mountain ranges and hundreds of kilometers from the centers of
political authority in the East, the inhabitants established their own
governments. Settlers from all the Tidewater states pressed on into
the fertile river valleys, hardwood forests, and rolling prairies of the
interior. By 1790 the population of the trans-Appalachian region
numbered well over 120,000.

Before the war, several colonies had laid extensive and often
overlapping claims to land beyond the Appalachians. To those
without such claims this rich territorial prize seemed unfairly
apportioned. When competition between states over the acquisition
of the maximum of this territory peaked, the national government
stepped in to defuse the mounting tension. Key in this regard is the
Confederation Congress's establishment of a system of limited self-

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government for this new national Northwest Territory. The
Northwest Ordinance of 1787 provided for its organization, initially
as a single district, ruled by a governor and judges appointed by the
Congress. When this territory had 5,000 free male inhabitants of
voting age, it was to be entitled to a legislature of two chambers,
itself electing the lower house. In addition, it could at that time send
a nonvoting delegate to Congress. Three to five states would be
formed as the territory was settled. Whenever any one of them had
60,000 free inhabitants, it was to be admitted to the Union "on an
equal footing with the original states in all respects." The ordinance
guaranteed civil rights and liberties, encouraged education, and
prohibited slavery or other forms of involuntary servitude.

The new policy repudiated the time-honored concept that colonies

existed for the benefit of the mother country, were politically
subordinate, and peopled by social inferiors. Instead, it established
the principle that colonies ("territories") were an extension of the
nation and entitled, not as a privilege but as a right, to all the
benefits of equality.

Constitutional Convention:

By the time the Northwest Ordinance was enacted, American

leaders were in the midst of drafting a new and stronger
constitution to replace the Articles of Confederation. Their presiding
officer, George Washington, had written accurately that the states
were united only by a "rope of sand." Disputes between Maryland
and Virginia over navigation on the Potomac River led to a
conference of representatives of five states at Annapolis, Maryland,
in 1786. One of the delegates, Alexander Hamilton of New York,
convinced his colleagues that commerce was bound up with large
political and economic questions. What was required was a
fundamental rethinking of the Confederation.

The Annapolis conference issued a call for all the states to appoint
representatives to a convention to be held the following spring in
Philadelphia. The Continental Congress was at first indignant over
this bold step, but it acquiesced after Washington gave the project
his backing and was elected a delegate. During the next fall and
winter, elections were held in all states but Rhode Island.

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A remarkable gathering of notables assembled at the Federal
Convention in May 1787. The state legislatures sent leaders with
experience in colonial and state governments, in Congress, on the
bench, and in the army. Washington, regarded as the country's first
citizen because of his integrity and his military leadership during the
Revolution, was chosen as presiding officer.

Congress had authorized the Convention merely to draft

amendments to the Articles of Confederation but, as Madison later
wrote, the delegates, "with a manly confidence in their country,"
simply threw the Articles aside and went ahead with the building of
a wholly new form of government.

They recognized that the paramount need was to reconcile two

different powers -- the power of local control, which was already
being exercised by the 13 semi-independent states, and the power
of a central government. They adopted the principle that the
functions and powers of the national government -- being new,
general, and inclusive -- had to be carefully defined and stated,
while all other functions and powers were to be understood as
belonging to the states. But realizing that the central government
had to have real power, the delegates also generally accepted the
fact that the government should be authorized, among other things,
to coin money, to regulate commerce, to declare war, and to make
peace.

Debate and Compromise:

The 18th-century statesmen who met in Philadelphia were

adherents of Montesquieu's concept of the balance of power in
politics. This principle was supported by colonial experience and
strengthened by the writings of John Locke, with which most of the
delegates were familiar. These influences led to the conviction that
three equal and coordinate branches of government should be
established. Legislative, executive, and judicial powers were to be
so harmoniously balanced that no one could ever gain control. The
delegates agreed that the legislative branch, like the colonial
legislatures and the British Parliament, should consist of two houses.

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On these points there was unanimity within the assembly. But sharp
differences also arose. Representatives of the small states -- New
Jersey, for instance -- objected to changes that would reduce their
influence in the national government by basing representation upon
population rather than upon statehood, as was the case under the
Articles of Confederation.

On the other hand, representatives of large states, like Virginia,

argued for proportionate representation. This debate threatened to
go on endlessly until Roger Sherman came forward with arguments
for representation in proportion to the population of the states in
one house of Congress, the House of Representatives, and equal
representation in the other, the Senate.

The alignment of large against small states then dissolved. But

almost every succeeding question raised new divisions, to be
resolved only by new compromises. Other conflicts flared up over
the role of slaves in the future political life. The purview and the
scope of power of national government

The principle of separation of powers had already been given a fair

trial in most state constitutions and had proved sound. Accordingly,
the convention set up a governmental system with separate
legislative, executive, and judiciary branches -- each checked by the
others. Thus congressional enactments were not to become law
until approved by the president. And the president was to submit
the most important of his appointments and all his treaties to the
Senate for confirmation. The president, in turn, could be impeached
and removed by Congress. The judiciary was to hear all cases
arising under federal laws and the Constitution; in effect, the courts
were empowered to interpret both the fundamental and the statute
law. But members of the judiciary, appointed by the president and
confirmed by the Senate, could also be impeached by Congress.

To protect the Constitution from hasty alteration, Article V stipulated

that amendments to the Constitution be proposed either by two-
thirds of both houses of Congress or by two-thirds of the states,
meeting in convention. The proposals were to be ratified by one of
two methods: either by the legislatures of three-fourths of the

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states, or by convention in three-fourths of the states, with the
Congress proposing the method to be used.

Finally, the convention faced the most important problem of all: How
should the powers given to the new government be enforced? Under
the Articles of Confederation, the national government had
possessed -- on paper -- significant powers, which, in practice, had
come to naught, for the states paid no attention to them. What was
to save the new government from the same fate?

At the outset, most delegates furnished a single answer -- the use of

force. But it was quickly seen that the application of force upon the
states would destroy the Union. The decision was that the
government should not act upon the states but upon the people
within the states, and should legislate for and upon all the individual
residents of the country. As the keystone of the Constitution, the
convention adopted two brief but highly significant statements:

The Constitution of the United States (1788):

After the United States won its independence from Britain, the
American faced a new challenge. The thirteen new states needed to
find a way to work together as one
country. Using principles from the
Declaration of Independence, the
Founding Fathers wrote the
document that still forms the basis
of the U. S. government –the
• The legislative branch is
Constitution. The Constitution
called the Congress. Its
describes the organization of the
function is to make the laws
national government. It divides the
for the country. The historic room in Independence Hall,
government into three branches: Philadelphia, where delegates drafted
• The executive branch is
the Constitution of the United States. (©
headed by the president. It Robert Llewellyn)
enforces laws made by the
Congress and controls the
nation's military and foreign
policy.
• The judicial branch is headed
by the Supreme Court. The
Supreme Court interprets the
laws that Congress passes and
makes sure that they are -7-
compatible with the
Constitution.
 The Founding Fathers wanted to be certain
that no one branch of government had more
power than the other two. They established
a system of checks and balances, in which
each branch of government has some power
over the other two. In 1788, the Constitution
Original of the U.S. of the United States became law, and in
Constitution, signed by the
delegates in Philadelphia on 1789, George Washington was elected the
September 17, 1787. (The first president.
National Archives)
Ratification of the Bill of Rights (1791):

After 16 weeks of deliberation, the finished Constitution was

approved on September 17, 1787, by 39 of the 42 delegates
present. Yet a crucial part of the struggle for a more perfect union
remained to be faced. The consent of popularly elected state
conventions was still required before the document could become
effective.

The convention had decided that the Constitution would take effect
upon ratification by conventions in nine of the 13 states. By June
1788 the required nine states had ratified the Constitution, but the
large states of Virginia and New York had not. Most people felt that
without their support the Constitution would never be honored. To
many, the document seemed full of dangers: Would not the strong
central government that it established tyrannize them, oppress
them with heavy taxes, and drag them into wars?

Differing views on these questions brought into existence two

parties, the Federalists, who favored a strong central government,

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and the Antifederalists, who preferred a loose association of
separate states. Impassioned arguments on both sides were voiced
by the press, the legislatures, and the state conventions.

In New York, Alexander Hamilton, John Jay, and James Madison

pushed for the ratification of the Constitution in a series of essays
known as The Federalist Papers. The essays, published in New York
newspapers, provided a now classic argument for a central federal
government, with separate executive, legislative, and judicial
branches that checked and balanced one another. With The
Federalist Papers influencing the New York delegates, the
Constitution was ratified on July 26.

Antipathy toward a strong central government was only one concern

among those opposed to the Constitution. Of equal concern to many
was the fear that the Constitution did not protect individual rights
and freedoms sufficiently. This explains why five states out the
thirteen ratified the Constitution on the condition that such
amendments be added immediately.

When the first Congress convened in New York City in September

1789, the calls for amendments protecting individual rights were
virtually unanimous. Congress quickly adopted 12 such
amendments; by December 1791, enough states had ratified 10
amendments to make them part of the Constitution. Collectively,
they are known as the Bill of Rights. Among their provisions:
freedom of speech, press, religion, and the right to assemble
peacefully, protest, and demand changes (First Amendment);
protection against unreasonable searches, seizures of property, and
arrest (Fourth Amendment); due process of law in all criminal cases
(Fifth Amendment); right to a fair and speedy trial (Sixth
Amendment); protection against cruel and unusual punishment
(Eighth Amendment); and provision that the people retain additional
rights not listed in the Constitution (Ninth Amendment).

Early Years of Westward Expansion and Regional

Differences:

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George Washington was sworn in as the first president of the United
States on April 30, 1789. He had been in charge of organizing an
effective military force during the Revolution. Now he was in charge
of building a functioning government.

He worked with Congress to create departments of State, Treasury,

Justice, and War. The heads of those departments would serve as
presidential advisors, his cabinet. A Supreme Court composed of
one chief justice and five associate justices was established,
together with three circuit courts and 13 district courts. Policies
were developed for administering the western territories and
bringing them into the Union as new states.

By the time the War of 1812 ended, many of the serious difficulties
faced by the new American republic had disappeared. National
union under the Constitution brought a balance between liberty and
order. A low national debt and a continent awaiting exploration
presented the prospect of peace, prosperity, and social progress.
The most significant event in foreign policy was a pronouncement
by President James Monroe expressing U.S. solidarity with the newly
independent nations of Central and South America. The Monroe
Doctrine warned against any further attempts by Europe to colonize
Latin America. Many of the new nations, in turn, expressed their
political affinity with the United States by basing their constitutions
on the North American model.

Another important evolution was that the United States doubled in

size with the purchase of the Louisiana Territory from France in
1803 and Florida from Spain in 1819. From 1816 to 1821, six new
states were created. Between 1812 and 1852, the population
tripled. The young nation's size and diversity defied easy
generalization. It also invited contradiction.

The United States was a country of both civilized cities built on

commerce and industry, and primitive frontiers where the rule of
law was often ignored. It was a society that loved freedom but
permitted slavery. The Constitution held all these different parts
together. The strains, however, were growing.

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 Reading List

Recommended Readings:

Bird, Harrison. War for the West, 1790-1813. New York: Oxford
University Press, 1971.

Blanchard, Karen, and Christine Root. American Roots: Readings on

American Cultural History. New York: Addison Wesley Longman,
2000.

Coakley, Robert W. The Rod of Federal Military Forces in Domestic

Disorders, 1789-1878. Washington: Government Printing Office,
1988.

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Crackel, Theodore J. Mr. Jefferson's Army: Political and Social Reform
of the Military Establishment, 1801-1809. New York: New York
University Press, 1987.

Guthman, William H. March to Massacre: A History of the First

Seven Years of the United States Army, 1784-1791. New York:
McGraw-Hill, 1970.

Jacobs, James R. The Beginnings of the U.S. Army, 1783-1812.

Philadelphia: The University of Pennsylvania Press, 1962.

Kohn, Richard H. Eagle and Sword: The Federalists and the Creation
of the Military Establishment in America, 1783-1802. New York: The
Free Press, 1975.

May, Ernest R., ed. The Ultimate Decision: The President as

Commander in Chief. New York: George Braziller, 1960. Chapter I.

Perkins, Bradford. Prologue to War: England and the United States.

Berkeley: University of California Press, 1961.

Prucha, Francis P. The Sword of the Republic: The United States

Army on the Frontier, 1783-1840. New York: Macmillan, 1969.
Chapters l-5.

Stagg, J. C. A. Mr. Madison's War: Politics, Diplomacy, and Warfare

in the Early American Republic, 1783-1830. Princeton: Princeton
University Press, 1983.

Other Readings:

Adams, Henry. The Formative Years. Edited and condensed by

Herbert Agar. Boston: Houghton Mifflin, 1947

Callahan, North. Henry Knox: General Washington's General. New

York: Rinehart, 1958.

Cleaves, Freeman. Old Tippecanoe: William Henry Harrison. New

York: Scribner, 1939.

DeVoto, Bernard, ed. Journals of Lewis and Clark. Boston: Houghton

Mifflin, 1953.

Jacobs, James R. The Beginnings of the U.S. Army, 1783-1812.

Princeton: Princeton University Press, 1947.

Knopf, Richard C., ed. Anthony Wayne, A Name in Arms: The Wayne-
Knox-Pickering-McHenry Correspondence. Pittsburgh: University of
Pittsburgh Press, 1960.

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Van Every, Dale. Final Challenge: The American Frontier, 1804-1845.
New York: William Morrow, 1965.

:Questions of Comprehension

?How did state governments protect the liberties of their citizens .1

?Why did state governments decide that such protection was necessary .2
?List the main weaknesses of the Confederation Congress .3
Under the Constitution, what powers did the states give to the central government? .4
?Why
?What powers did the states retain .5
?What did the states hope to win from the new government .6
How did the Constitution reflect what was in state constitutions? What principles .7
?were included in both
Explain how each of the following limits the power of the national government: .8
?written constitution, checks and balances, and bill of rights

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 :Authentic Text

FEDERALIST No. 47
The Particular Structure of the New Government and
the Distribution of Power Among Its Different Parts
From the New York Packet.
Friday, February 1, 1788. by James MADISON
To the People of the State of New York:

Having reviewed the general form of the proposed government and

the general mass of power allotted to it, I proceed to examine the
particular structure of this government, and the distribution of this

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mass of power among its constituent parts. One of the principal
objections inculcated by the more respectable adversaries to the
Constitution, is its supposed violation of the political maxim, that the
legislative, executive, and judiciary departments ought to be
separate and distinct. In the structure of the federal government, no
regard, it is said, seems to have been paid to this essential
precaution in favor of liberty. The several departments of power are
distributed and blended in such a manner as at once to destroy all
symmetry and beauty of form, and to expose some of the essential
parts of the edifice to the danger of being crushed by the
disproportionate weight of other parts. No political truth is certainly
of greater intrinsic value, or is stamped with the authority of more
enlightened patrons of liberty, than that on which the objection is
founded. The accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, selfappointed, or elective, may justly be
pronounced the very definition of tyranny. Were the federal
Constitution, therefore, really chargeable with the accumulation of
power, or with a mixture of powers, having a dangerous tendency to
such an accumulation, no further arguments would be necessary to
inspire a universal reprobation of the system. I persuade myself,
however, that it will be made apparent to every one, that the charge
cannot be supported, and that the maxim on which it relies has
been totally misconceived and misapplied. In order to form correct
ideas on this important subject, it will be proper 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 endeavor, 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

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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 depositary 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,’’ or, “if the power of judging
be not separated from the legislative and executive powers,’’ he did
not mean that these departments ought to have no partial agency
in, or no control over, the acts of each other. His meaning, as his
own words import, and still more conclusively as illustrated by the
example in his eye, can amount to no more than this, that where
the whole power of one department is exercised by the same hands
which possess the whole power of another department, the
fundamental principles of a free constitution are subverted. This
would have been the case in the constitution examined by him, if
the king, who is the sole executive magistrate, had possessed also
the complete legislative power, or the supreme administration of
justice; or if the entire legislative body had possessed the supreme
judiciary, or the supreme executive authority. This, however, is not
among the vices of that constitution. The magistrate in whom the
whole executive power resides cannot of himself make a law,
though he can put a negative on every law; nor administer justice in
person, though he has the appointment of those who do administer
it. The judges can exercise no executive prerogative, though they
are shoots from the executive stock; nor any legislative function,
though they may be advised with by the legislative councils. The
entire legislature can perform no judiciary act, though by the joint
act of two of its branches the judges may be removed from their
offices, and though one of its branches is possessed of the judicial
power in the last resort. The entire legislature, again, can exercise
no executive prerogative, though one of its branches constitutes the
supreme executive magistracy, and another, on the impeachment
of a third, can try and condemn all the subordinate officers in the
executive department. The reasons on which Montesquieu grounds
his maxim are a further demonstration of his meaning. “When the
legislative and executive powers are united in the same person or
body,’’ says he, “there can be no liberty, because apprehensions
may arise lest the same monarch or senate should enact tyrannical
laws to execute them in a tyrannical manner. ‘’ Again: ``Were the
power of judging joined with the legislative, the life and liberty of

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the subject would be exposed to arbitrary control, for the judge
would then be the legislator. Were it joined to the executive power,
the judge might behave with all the violence of an oppressor. ‘’
Some of 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 powers has
been admitted. The executive magistrate has a qualified negative
on the legislative body, and the Senate, which is a part of the
legislature, is a court of impeachment for members both of the
executive and judiciary departments. The members of the judiciary
department, again, are appointable by the executive department,

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and removable by the same authority on the address of the two
legislative branches.

Lastly, a number of the officers of government are annually

appointed by the legisla- tive department. As the appointment to
offices, particularly executive offices, is in its nature an executive
function, the compilers of the Constitution have, in this last point at
least, violated the rule established by themselves. 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 impeachment 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
legislature; and the executive power of pardoning in certain cases,
to be referred to the same department. The members of the
executive council are made exofficio 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 constitutes the Supreme Court of
Appeals; he is joined with the legislative department in the

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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 department. The
language of Virginia is still more pointed on this subject. Her
constitution declares, “that the legislative, executive, and judiciary
departments shall be separate and distinct; so that neither exercise
the powers properly belonging to the other; nor shall any person
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 within 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 departments 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

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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 the 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.

• Naim Benmerabet is a Maitre-Assistant at Badji Mokhtar

(Annaba) University and a member in LECUCRA (Laboratory
under the stewardship of PR. Miloud BARKAOUI)

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