FEDERALIST No. 47.
The Particular Structure of the New Government
and the Distribution of Power Among Its Different
Parts.
For the Independent Journal.
Wednesday, January 30, 1788.
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 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, self-appointed, 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 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 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,
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 legislative
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
EX-OFFICIO 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 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 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.
PUBLIUS
