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.

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 execyutive 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.