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, 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 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 counoil 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 irferior 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