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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 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.
FEDERALIST No. 48
These Departments Should Not Be So Far Separated as to Have No Constitutional
Control Over Each Other From the New York Packet. Friday, February 1, 1788.
MADISON To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there examined
does not require that the legislative, executive, and judiciary departments
should be wholly unconnected with each other. I shall undertake, in the
next place, to show that unless these departments be so far connected and
blended as to give to each a constitutional control over the others, the
degree of separation which the maxim requires, as essential to a free government,
can never in practice be duly maintained. It is agreed on all sides, that
the powers properly belonging to one of the departments ought not to be
directly and completely administered by either of the other departments.
It is equally evident, that none of them ought to possess, directly or
indirectly, an overruling influence over the others, in the administration
of their respective powers. It will not be denied, that power is of an
encroaching nature, and that it ought to be effectually restrained from
passing the limits assigned to it. After discriminating, therefore, in
theory, the several classes of power, as they may in their nature be legislative,
executive, or judiciary, the next and most difficult task is to provide
some practical security for each, against the invasion of the others. What
this security ought to be, is the great problem to be solved. Will it be
sufficient to mark, with precision, the boundaries of these departments,
in the constitution of the government, and to trust to these parchment
barriers against the encroaching spirit of power? This is the security
which appears to have been principally relied on by the compilers of most
of the American constitutions. But experience assures us, that the efficacy
of the provision has been greatly overrated; and that some more adequate
defense is indispensably necessary for the more feeble, against the more
powerful, members of the government. The legislative department is everywhere
extending the sphere of its activity, and drawing all power into its impetuous
vortex. The founders of our republics have so much merit for the wisdom
which they have displayed, that no task can be less pleasing than that
of pointing out the errors into which they have fallen. A respect for truth,
however, obliges us to remark, that they seem never for a moment to have
turned their eyes from the danger to liberty from the overgrown and all-grasping
prerogative of an hereditary magistrate, supported and fortified by an
hereditary branch of the legislative authority. They seem never to have
recollected the danger from legislative usurpations, which, by assembling
all power in the same hands, must lead to the same tyranny as is threatened
by executive usurpations. In a government where numerous and extensive
prerogatives are placed in the hands of an hereditary monarch, the executive
department is very justly regarded as the source of danger, and watched
with all the jealousy which a zeal for liberty ought to inspire. In a democracy,
where a multitude of people exercise in person the legislative functions,
and are continually exposed, by their incapacity for regular deliberation
and concerted measures, to the ambitious intrigues of their executive magistrates,
tyranny may well be apprehended, on some favorable emergency, to start
up in the same quarter. But in a representative republic, where the executive
magistracy is carefully limited; both in the extent and the duration of
its power; and where the legislative power is exercised by an assembly,
which is inspired, by a supposed influence over the people, with an intrepid
confidence in its own strength; which is sufficiently numerous to feel
all the passions which actuate a multitude, yet not so numerous as to be
incapable of pursuing the objects of its passions, by means which reason
prescribes; it is against the enterprising ambition of this department
that the people ought to indulge all their jealousy and exhaust all their
precautions. The legislative department derives a superiority in our governments
from other circumstances. Its constitutional powers being at once more
extensive, and less susceptible of precise limits, it can, with the greater
facility, mask, under complicated and indirect measures, the encroachments
which it makes on the co-ordinate departments. It is not unfrequently a
question of real nicety in legislative bodies, whether the operation of
a particular measure will, or will not, extend beyond the legislative sphere.
On the other side, the executive power being restrained within a narrower
compass, and being more simple in its nature, and the judiciary being described
by landmarks still less uncertain, projects of usurpation by either of
these departments would immediately betray and defeat themselves. Nor is
this all: as the legislative department alone has access to the pockets
of the people, and has in some constitutions full discretion, and in all
a prevailing influence, over the pecuniary rewards of those who fill the
other departments, a dependence is thus created in the latter, which gives
still greater facility to encroachments of the former. I have appealed
to our own experience for the truth of what I advance on this subject.
Were it necessary to verify this experience by particular proofs, they
might be multiplied without end. I might find a witness in every citizen
who has shared in, or been attentive to, the course of public administrations.
I might collect vouchers in abundance from the records and archives of
every State in the Union. But as a more concise, and at the same time equally
satisfactory, evidence, I will refer to the example of two States, attested
by two unexceptionable authorities. The first example is that of Virginia,
a State which, as we have seen, has expressly declared in its constitution,
that the three great departments ought not to be intermixed. The authority
in support of it is Mr. Jefferson, who, besides his other advantages for
remarking the operation of the government, was himself the chief magistrate
of it. In order to convey fully the ideas with which his experience had
impressed him on this subject, it will be necessary to quote a passage
of some length from his very interesting ``Notes on the State of Virginia,''
p. 195. ``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. Let those who doubt it, turn their eyes on the republic
of Venice. As little will it avail us, that they are chosen by ourselves.
An ELECTIVE DESPOTISM was not the government we fought for; but one which
should not only be founded on free principles, but in which the powers
of government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without
being effectually checked and restrained by the others. For this reason,
that convention which passed the ordinance of government, laid its foundation
on this basis, that the legislative, executive, and judiciary departments
should be separate and distinct, so that no person should exercise the
powers of more than one of them at the same time. BUT NO BARRIER WAS PROVIDED
BETWEEN THESE SEVERAL POWERS. The judiciary and the executive members were
left dependent on the legislative for their subsistence in office, and
some of them for their continuance in it. If, therefore, the legislature
assumes executive and judiciary powers, no opposition is likely to be made;
nor, if made, can be effectual; because in that case they may put their
proceedings into the form of acts of Assembly, which will render them obligatory
on the other branches. They have accordingly, IN MANY instances, DECIDED
RIGHTS which should have been left to JUDICIARY CONTROVERSY, and THE DIRECTION
OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL
AND FAMILIAR. ''The other State which I shall take for an example is Pennsylvania;
and the other authority, the Council of Censors, which assembled in the
years 1783 and 1784. A part of the duty of this body, as marked out by
the constitution, was ``to inquire whether the constitution had been preserved
inviolate in every part; and whether the legislative and executive branches
of government had performed their duty as guardians of the people, or assumed
to themselves, or exercised, other or greater powers than they are entitled
to by the constitution. '' In the execution of this trust, the council
were necessarily led to a comparison of both the legislative and executive
proceedings, with the constitutional powers of these departments; and from
the facts enumerated, and to the truth of most of which both sides in the
council subscribed, it appears that the constitution had been flagrantly
violated by the legislature in a variety of important instances. A great
number of laws had been passed, violating, without any apparent necessity,
the rule requiring that all bills of a public nature shall be previously
printed for the consideration of the people; although this is one of the
precautions chiefly relied on by the constitution against improper acts
of legislature. The constitutional trial by jury had been violated, and
powers assumed which had not been delegated by the constitution. Executive
powers had been usurped. The salaries of the judges, which the constitution
expressly requires to be fixed, had been occasionally varied; and cases
belonging to the judiciary department frequently drawn within legislative
cognizance and determination. Those who wish to see the several particulars
falling under each of these heads, may consult the journals of the council,
which are in print. Some of them, it will be found, may be imputable to
peculiar circumstances connected with the war; but the greater part of
them may be considered as the spontaneous shoots of an ill-constituted
government. It appears, also, that the executive department had not been
innocent of frequent breaches of the constitution. There are three observations,
however, which ought to be made on this head: FIRST, a great proportion
of the instances were either immediately produced by the necessities of
the war, or recommended by Congress or the commander-in-chief; SECONDLY,
in most of the other instances, they conformed either to the declared or
the known sentiments of the legislative department; THIRDLY, the executive
department of Pennsylvania is distinguished from that of the other States
by the number of members composing it. In this respect, it has as much
affinity to a legislative assembly as to an executive council. And being
at once exempt from the restraint of an individual responsibility for the
acts of the body, and deriving confidence from mutual example and joint
influence, unauthorized measures would, of course, be more freely hazarded,
than where the executive department is administered by a single hand, or
by a few hands. The conclusion which I am warranted in drawing from these
observations is, that a mere demarcation on parchment of the constitutional
limits of the several departments, is not a sufficient guard against those
encroachments which lead to a tyrannical concentration of all the powers
of government in the same hands. PUBLIUS.
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