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Thomas Jefferson on Politics & Government

21. Separation of Powers: Legislative, Executive and Judicial

The principle of separation of powers applies not only to the Federal and State governments, but also to the three branches within each government. When this separation is properly respected, no single branch can gather sufficient power to itself that will allow it to exercise despotic control over the whole nation.

"To make us one nation as to foreign concerns, and keep us distinct in domestic ones, gives the outline of the proper division of powers between the general and particular governments. But, to enable the federal head to exercise the powers given it to best advantage, it should be organized as the particular ones are, into legislative, executive, and judiciary." --Thomas Jefferson to James Madison, 1786. ME 6:9

"The first principle of a good government is certainly a distribution of its powers into executive, judiciary, and legislative, and a subdivision of the latter into two or three branches." --Thomas Jefferson to John Adams, 1787. ME 6:321

"The constitution has divided the powers of government into three branches, Legislative, Executive and Judiciary, lodging each with a distinct magistracy. The Legislative it has given completely to the Senate and House of Representatives. It has declared that the Executive powers shall be vested in the President, submitting special articles of it to a negative by the Senate, and it has vested the Judiciary power in the courts of justice, with certain exceptions also in favor of the Senate." --Thomas Jefferson: Opinion on Executive Appointments, 1790. ME 3:15

"My idea is that... the Federal government should be organized into Legislative, Executive and Judiciary, as are the State governments, and some peaceable means of enforcement devised for the Federal head over the States." --Thomas Jefferson to John Blair, 1787. ME 6:273, Papers 12:28

21.1 Each Branch is Independent

"The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other." --Thomas Jefferson to George Hay, 1807. FE 9:59

"There are many [in Congress] who think that not to support the Executive is to abandon Government." --Thomas Jefferson to Colonel Bell, 1797. ME 9:386

"[The] principle [of the Constitution] is that of a separation of Legislative, Executive and Judiciary functions except in cases specified. If this principle be not expressed in direct terms, it is clearly the spirit of the Constitution, and it ought to be so commented and acted on by every friend of free government." --Thomas Jefferson to James Madison, 1797. ME 9:368

"Our Constitution has wisely distributed the administration of the government into three distinct and independent departments. To each of these it belongs to administer law within its separate jurisdiction. The Judiciary in cases of meum and tuum, and of public crimes; the Executive, as to laws executive in their nature; the Legislature in various cases which belong to itself, and in the important function of amending and adding to the system." --Thomas Jefferson: Batture at New Orleans, 1812. ME 18:129

"The three great departments having distinct functions to perform, must have distinct rules adapted to them. Each must act under its own rules, those of no one having any obligation on either of the others." --Thomas Jefferson to James Barbour, 1812. ME 13:129

"The Constitution intended that the three great branches of the government should be co-ordinate and independent of each other. As to acts, therefore, which are to be done by either, it has given no control to another branch... Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions... From these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a control over the others." --Thomas Jefferson to George Hay, 1807. ME 11:213

"If the Legislature fails to pass laws for a census, for paying the Judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the Judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the Judges cannot force him. They can issue their mandamus or distringas [i.e., property seizures] to no executive or legislative officer to enforce the fulfilment of their official duties any more that the President or Legislature may issue orders to the Judges or their officers. Betrayed by the English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping the three departments distinct and independent, restrains the authority of the Judges to judiciary organs as it does the Executive and Legislative to executive and legislative organs." --Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

"It may be objected that the Senate may by continual negatives on the person, do what amounts to a negative on the grade [of an appointee], and so, indirectly, defeat [the] right of the President [to determine the grade]. But this would be a breach of trust; an abuse of power confided to the Senate, of which that body cannot be supposed capable. So the President has a power to convoke the Legislature, and the Senate might defeat that power by refusing to come. This equally amounts to a negative on the power of convoking. Yet nobody will say they possess such a negative, or would be capable of usurping it by such oblique means. If the Constitution had meant to give the Senate a negative on the grade or destination, as well as the person, it would have said so in direct terms, and not left it to be effected by a sidewind. It could never mean to give them the use of one power through the abuse of another." --Thomas Jefferson: Opinion on Executive Appointments, 1790. ME 3:17

"Legislative, Executive and Judiciary offices shall be kept forever separate, and no person exercising the one shall be capable of appointment to the others, or to either of them." --Thomas Jefferson: Draft Virginia Constitution, 1776. Papers 1:347

"Citizens, whether individually or in bodies corporate or associated, have a right to apply directly to any department of their government, whether Legislative, Executive or Judiciary, the exercise of whose powers they have a right to claim, and neither of these can regularly offer its intervention in a case belonging to the other." --Thomas Jefferson to James Sullivan, 1807. ME 11:382

"Where... petitioners have a right to petition their immediate representatives in Congress directly, I have deemed it neither necessary nor proper for them to pass their petition through the intermediate channel of the Executive. But as the petitioners may be ignorant of this, and, confiding in it, may omit the proper measure, I have usually put such petitions into the hands of the Representatives of the State, informally to be used or not as they see best, and considering me as entirely disclaiming any agency in the case." --Thomas Jefferson to Joseph B. Varnum, 1808. ME 12:196

"It seems proper that every person should address himself directly to the department to which the Constitution has allotted his case; and that the proper answer to such from any other department is, 'that it is not to us that the Constitution has assigned the transaction of this business.'" --Thomas Jefferson to James Madison, 1791. ME 8:250

"The courts of justice exercise the sovereignty of this country in judiciary matters, are supreme in these, and liable neither to control nor opposition from any other branch of the government." --Thomas Jefferson to Edmond C. Genet, 1793. ME 9:234

"The interference of the Executive can rarely be proper where that of the Judiciary is so." --Thomas Jefferson to George Hammond, 1793. FE 6:298

"For the Judiciary to interpose in the Legislative department between the constituent and his representative, to control them in the exercise of their functions or duties towards each other, to overawe the free correspondence which exists and ought to exist between them, to dictate what may pass between them and to punish all others, to put the representative into jeopardy of criminal prosecution, of vexation, expense and punishment before the Judiciary if his communications, public or private, do not exactly square with their ideas of fact or right or with their designs of wrong, is to put the Legislative department under the feet of the Judiciary, is to leave us, indeed, the shadow but to take away the substance of representation, which requires essentially that the representative be as free as his constituents would be, that the same interchange of sentiment be lawful between him and them as would be lawful among themselves were they in the personal transaction of their own business; is to do away the influence of the people over the proceedings of their representatives by excluding from their knowledge by the terror of punishment, all but such information or misinformation as may suit their own views." --Thomas Jefferson: Virginia Petition, 1797. ME 17:359

"If the three powers maintain their mutual independence on each other our Government may last long, but not so if either can assume the authorities of the other." --Thomas Jefferson to William Charles Jarvis, 1820. ME 15:278

21.2 All Powers in One Branch Produces Despotism

"[A very capital defect in a constitution is when] all the powers of government, legislative, executive and judiciary result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:162

"[Where] there [is] no barrier between the legislative, executive, and judiciary departments, the legislature may seize the whole... Having seized it and possessing a right to fix their own quorum, they may reduce that quorum to one, whom they may call a chairman, speaker, dictator, or by any other name they please." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. (*) ME 2:178

"I said to [President Washington] that if the equilibrium of the three great bodies, Legislative, Executive and Judiciary, could be preserved, if the Legislature could be kept independent, I should never fear the result of such a government; but that I could not but be uneasy when I saw that the Executive had swallowed up the Legislative branch." --Thomas Jefferson: The Anas, 1792. ME 1:318

21.3 Unlimited Powers are Always Dangerous

"Nor should [a legislative body] be deluded by the integrity of their own purposes and conclude that... unlimited powers will never be abused because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when corruption in this as in the country from which we derive our origin, will have seized the heads of government and be spread by them through the body of the people, when they will purchase the voices of the people and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:164

"Mankind soon learn to make interested uses of every right and power which they possess or may assume. The public money and public liberty, intended to have been deposited with three branches of magistracy but found inadvertently to be in the hands of one only, will soon be discovered to be sources of wealth and dominion to those who hold them; distinguished, too, by this tempting circumstance: that they are the instrument as well as the object of acquisition. With money we will get men, said Caesar, and with men we will get money." --Thomas Jefferson: Notes on Virginia Q.XIII, 1782. ME 2:164

"It is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages." --Thomas Jefferson to John Taylor, 1798. ME 10:44

ME, FE = Memorial Edition, Ford Edition.   See Sources.

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