1787 Federalist 47 · Founding Made Plain

11787 Federalist No. 47

2The Particular Structure

3of the New Government

4and the Distribution of Power

5Among Its Different Parts

6From the New York Packet.

7Friday, February 1, 1788.

8MADISON

9To the People of the State of New York:

10HAVING reviewed the general form

11 of the proposed government

12 and the general mass of power allotted to it,

13I proceed to examine the particular structure

14 of this government,

15 and the distribution of this mass of power

16 among its constituent parts.

17One of the principal objections

18 inculcated by the more respectable adversaries

19 to the Constitution,

20 is its supposed violation of the political maxim,

21 that the legislative, executive, and judiciary

22 departments ought to be separate and distinct.

23In the structure of the federal government,

24 no regard, it is said,

25 seems to have been paid

26 to this essential precaution

27 in favor of liberty.

28The several departments of power

29 are distributed and blended in such a manner

30 as at once to destroy all symmetry

31 and beauty of form,

32 and to expose some of the essential parts

33 of the edifice

34 to the danger of being crushed

35 by the disproportionate weight of other parts.

36No political truth is certainly

37 of greater intrinsic value,

38 or is stamped with the authority

39 of more enlightened patrons of liberty,

40 than that on which the objection is founded.

41The accumulation of all powers,

42 legislative, executive, and judiciary,

43 in the same hands,

44 whether of one, a few, or many,

45 and whether hereditary, selfappointed, or elective,

46 may justly be pronounced

47 the very definition of tyranny.

48Were the federal Constitution, therefore,

49 really chargeable with the accumulation of power,

50 or with a mixture of powers,

51 having a dangerous tendency

52 to such an accumulation,

53 no further arguments would be necessary

54 to inspire a universal reprobation of the system.

55I persuade myself, however,

56 that it will be made apparent to every one,

57 that the charge cannot be supported,

58 and that the maxim on which it relies

59 has been totally misconceived and misapplied.

60In order to form correct ideas

61 on this important subject,

62 it will be proper to investigate the sense

63 in which the preservation of liberty requires

64 that the three great departments of power

65 should be separate and distinct.

66The oracle who is always consulted and cited

67 on this subject

68 is the celebrated Montesquieu.

69If he be not the author

70 of this invaluable precept in the science of politics,

71 he has the merit at least of displaying

72 and recommending it most effectually

73 to the attention of mankind.

74Let us endeavor, in the first place,

75 to ascertain his meaning on this point.

76The British Constitution was to Montesquieu

77 what Homer has been

78 to the didactic writers on epic poetry.

79As the latter have considered the work

80 of the immortal bard as the perfect model

81 from which the principles and rules

82 of the epic art were to be drawn,

83 and by which all similar works were to be judged,

84 so this great political critic appears

85 to have viewed the Constitution of England

86 as the standard,

87 or to use his own expression,

88 as the mirror of political liberty;

89 and to have delivered,

90 in the form of elementary truths,

91 the several characteristic principles

92 of that particular system.

93That we may be sure, then,

94 not to mistake his meaning in this case,

95 let us recur to the source

96 from which the maxim was drawn.

97On the slightest view of the British Constitution,

98 we must perceive

99 that the legislative, executive, and judiciary

100 departments are by no means

101 totally separate and distinct from each other.

102The executive magistrate forms an integral part

103 of the legislative authority.

104He alone has the prerogative of making treaties

105 with foreign sovereigns,

106 which, when made, have, under certain limitations,

107 the force of legislative acts.

108All the members of the judiciary department

109 are appointed by him,

110 can be removed by him

111 on the address of the two Houses of Parliament,

112 and form, when he pleases to consult them,

113 one of his constitutional councils.

114One branch of the legislative department

115 forms also a great constitutional council

116 to the executive chief,

117 as, on another hand,

118 it is the sole depositary of judicial power

119 in cases of impeachment,

120 and is invested with the supreme

121 appellate jurisdiction

122 in all other cases.

123The judges, again,

124 are so far connected with the legislative department

125 as often to attend and participate

126 in its deliberations,

127 though not admitted to a legislative vote.

128From these facts, by which Montesquieu was guided,

129 it may clearly be inferred that, in saying

130 "There can be no liberty

131 where the legislative and executive powers

132 are united in the same person,

133 or body of magistrates,"

134 or, "if the power of judging be not separated

135 from the legislative and executive powers,"

136 he did not mean

137 that these departments ought to have

138 no PARTIAL AGENCY in, or no CONTROL over,

139 the acts of each other.

140His meaning, as his own words import,

141 and still more conclusively

142 as illustrated by the example in his eye,

143 can amount to no more than this,

144 that where the WHOLE power of one department

145 is exercised by the same hands

146 which possess the WHOLE power

147 of another department,

148 the fundamental principles

149 of a free constitution are subverted.

150This would have been the case

151 in the constitution examined by him,

152 if the king, who is the sole executive magistrate,

153 had possessed also the complete legislative power,

154 or the supreme administration of justice;

155 or if the entire legislative body

156 had possessed the supreme judiciary,

157 or the supreme executive authority.

158This, however, is not among the vices

159 of that constitution.

160The magistrate in whom the whole executive power resides

161 cannot of himself make a law,

162 though he can put a negative on every law;

163 nor administer justice in person,

164 though he has the appointment

165 of those who do administer it.

166The judges can exercise no executive prerogative,

167 though they are shoots from the executive stock;

168 nor any legislative function,

169 though they may be advised with

170 by the legislative councils.

171The entire legislature can perform no judiciary act,

172 though by the joint act of two of its branches

173 the judges may be removed from their offices,

174 and though one of its branches

175 is possessed of the judicial power

176 in the last resort.

177The entire legislature, again,

178 can exercise no executive prerogative,

179 though one of its branches constitutes

180 the supreme executive magistracy,

181 and another, on the impeachment of a third,

182 can try and condemn all the subordinate officers

183 in the executive department.

184The reasons on which Montesquieu grounds his maxim

185 are a further demonstration of his meaning.

186"When the legislative and executive powers

187 are united in the same person or body,"

188 says he,

189 "there can be no liberty,

190 because apprehensions may arise

191 lest THE SAME monarch or senate should ENACT

192 tyrannical laws

193 to EXECUTE them in a tyrannical manner."

194Again:

195"Were the power of judging joined with the legislative,

196 the life and liberty of the subject

197 would be exposed to arbitrary control,

198 for THE JUDGE would then be THE LEGISLATOR.

199Were it joined to the executive power,

200 THE JUDGE might behave

201 with all the violence of AN OPPRESSOR."

202Some of these reasons are more fully explained

203 in other passages;

204 but briefly stated as they are here,

205 they sufficiently establish the meaning

206 which we have put

207 on this celebrated maxim

208 of this celebrated author.

209If we look into the constitutions of the several States,

210 we find that, notwithstanding the emphatical

211 and, in some instances, the unqualified terms

212 in which this axiom has been laid down,

213 there is not a single instance

214 in which the several departments of power

215 have been kept absolutely separate and distinct.

216New Hampshire, whose constitution was the last formed,

217 seems to have been fully aware

218 of the impossibility and inexpediency

219 of avoiding any mixture whatever

220 of these departments,

221 and has qualified the doctrine by declaring

222 "that the legislative, executive, and judiciary

223 powers ought to be kept as separate from,

224 and independent of, each other

225 AS THE NATURE OF A FREE GOVERNMENT WILL ADMIT;

226 OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION

227 THAT BINDS THE WHOLE FABRIC OF THE CONSTITUTION

228 IN ONE INDISSOLUBLE BOND OF UNITY AND AMITY."

229Her constitution accordingly mixes these departments

230 in several respects.

231The Senate, which is a branch

232 of the legislative department,

233 is also a judicial tribunal

234 for the trial of impeachments.

235The President, who is the head

236 of the executive department,

237 is the presiding member also of the Senate;

238 and, besides an equal vote in all cases,

239 has a casting vote in case of a tie.

240The executive head is himself eventually elective

241 every year by the legislative department,

242 and his council is every year chosen

243 by and from the members of the same department.

244Several of the officers of state

245 are also appointed by the legislature.

246And the members of the judiciary department

247 are appointed by the executive department.

248The constitution of Massachusetts

249 has observed a sufficient though less pointed caution,

250 in expressing this fundamental article of liberty.

251It declares

252 "that the legislative department

253 shall never exercise

254 the executive and judicial powers,

255 or either of them;

256 the executive shall never exercise

257 the legislative and judicial powers,

258 or either of them;

259 the judicial shall never exercise

260 the legislative and executive powers,

261 or either of them."

262This declaration corresponds precisely

263 with the doctrine of Montesquieu,

264 as it has been explained,

265 and is not in a single point violated

266 by the plan of the convention.

267It goes no farther than to prohibit

268 any one of the entire departments

269 from exercising the powers of another department.

270In the very Constitution to which it is prefixed,

271 a partial mixture of powers has been admitted.

272The executive magistrate has a qualified negative

273 on the legislative body,

274 and the Senate, which is a part of the legislature,

275 is a court of impeachment

276 for members both of the executive

277 and judiciary departments.

278The members of the judiciary department, again,

279 are appointable by the executive department,

280 and removable by the same authority

281 on the address of the two legislative branches.

282Lastly, a number of the officers of government

283 are annually appointed by the legislative department.

284As the appointment to offices,

285 particularly executive offices,

286 is in its nature an executive function,

287 the compilers of the Constitution have,

288 in this last point at least,

289 violated the rule established by themselves.

290I pass over the constitutions

291 of Rhode Island and Connecticut,

292 because they were formed prior to the Revolution,

293 and even before the principle under examination

294 had become an object of political attention.

295The constitution of New York

296 contains no declaration on this subject;

297 but appears very clearly

298 to have been framed with an eye

299 to the danger of improperly blending

300 the different departments.

301It gives, nevertheless, to the executive magistrate,

302 a partial control over the legislative department;

303 and, what is more,

304 gives a like control to the judiciary department;

305 and even blends the executive and judiciary departments

306 in the exercise of this control.

307In its council of appointment

308 members of the legislative

309 are associated with the executive authority,

310 in the appointment of officers,

311 both executive and judiciary.

312And its court for the trial of impeachments

313 and correction of errors

314 is to consist of one branch of the legislature

315 and the principal members

316 of the judiciary department.

317The constitution of New Jersey

318 has blended the different powers of government

319 more than any of the preceding.

320The governor, who is the executive magistrate,

321 is appointed by the legislature;

322 is chancellor and ordinary, or surrogate of the State;

323 is a member of the Supreme Court of Appeals,

324 and president, with a casting vote,

325 of one of the legislative branches.

326The same legislative branch acts again

327 as executive council of the governor,

328 and with him constitutes the Court of Appeals.

329The members of the judiciary department

330 are appointed by the legislative department

331 and removable by one branch of it,

332 on the impeachment of the other.

333According to the constitution of Pennsylvania,

334 the president, who is the head

335 of the executive department,

336 is annually elected by a vote

337 in which the legislative department predominates.

338In conjunction with an executive council,

339 he appoints the members of the judiciary department,

340 and forms a court of impeachment

341 for trial of all officers,

342 judiciary as well as executive.

343The judges of the Supreme Court

344 and justices of the peace

345 seem also to be removable by the legislature;

346 and the executive power of pardoning in certain cases,

347 to be referred to the same department.

348The members of the executive counoil

349 are made EX-OFFICIO justices of peace

350 throughout the State.

351In Delaware, the chief executive magistrate

352 is annually elected by the legislative department.

353The speakers of the two legislative branches

354 are vice-presidents in the executive department.

355The executive chief, with six others,

356 appointed, three by each of the legislative branches

357 constitutes the Supreme Court of Appeals;

358 he is joined with the legislative department

359 in the appointment of the other judges.

360Throughout the States, it appears

361 that the members of the legislature

362 may at the same time be justices of the peace;

363 in this State, the members of one branch of it

364 are EX-OFFICIO justices of the peace;

365 as are also the members of the executive council.

366The principal officers of the executive department

367 are appointed by the legislative;

368 and one branch of the latter

369 forms a court of impeachments.

370All officers may be removed

371 on address of the legislature.

372Maryland has adopted the maxim

373 in the most unqualified terms;

374 declaring that the legislative, executive,

375 and judicial powers of government

376 ought to be forever separate and distinct

377 from each other.

378Her constitution, notwithstanding,

379 makes the executive magistrate

380 appointable by the legislative department;

381 and the members of the judiciary

382 by the executive department.

383The language of Virginia is still more pointed

384 on this subject.

385Her constitution declares,

386 "that the legislative, executive, and judiciary

387 departments shall be separate and distinct;

388 so that neither exercise the powers

389 properly belonging to the other;

390 nor shall any person exercise the powers

391 of more than one of them at the same time,

392 except that the justices of county courts

393 shall be eligible to either House of Assembly."

394Yet we find not only this express exception,

395 with respect to the members of the irferior courts,

396 but that the chief magistrate,

397 with his executive council,

398 are appointable by the legislature;

399 that two members of the latter

400 are triennially displaced

401 at the pleasure of the legislature;

402 and that all the principal offices,

403 both executive and judiciary,

404 are filled by the same department.

405The executive prerogative of pardon, also,

406 is in one case vested in the legislative department.

407The constitution of North Carolina,

408 which declares

409 "that the legislative, executive,

410 and supreme judicial powers of government

411 ought to be forever separate and distinct

412 from each other,"

413 refers, at the same time,

414 to the legislative department,

415 the appointment not only of the executive chief,

416 but all the principal officers

417 within both that and the judiciary department.

418In South Carolina, the constitution

419 makes the executive magistracy

420 eligible by the legislative department.

421It gives to the latter, also,

422 the appointment of the members

423 of the judiciary department,

424 including even justices of the peace and sheriffs;

425 and the appointment of officers

426 in the executive department,

427 down to captains in the army and navy of the State.

428In the constitution of Georgia,

429 where it is declared

430 "that the legislative, executive,

431 and judiciary departments

432 shall be separate and distinct,

433 so that neither exercise the powers

434 properly belonging to the other,"

435 we find that the executive department

436 is to be filled by appointments of the legislature;

437 and the executive prerogative of pardon

438 to be finally exercised by the same authority.

439Even justices of the peace

440 are to be appointed by the legislature.

441In citing these cases,

442 in which the legislative, executive, and judiciary

443 departments have not been kept

444 totally separate and distinct,

445 I wish not to be regarded as an advocate

446 for the particular organizations

447 of the several State governments.

448I am fully aware

449 that among the many excellent principles

450 which they exemplify,

451 they carry strong marks of the haste,

452 and still stronger of the inexperience,

453 under which they were framed.

454It is but too obvious

455 that in some instances

456 the fundamental principle under consideration

457 has been violated by too great a mixture,

458 and even an actual consolidation,

459 of the different powers;

460 and that in no instance

461 has a competent provision been made

462 for maintaining in practice

463 the separation delineated on paper.

464What I have wished to evince is,

465 that the charge brought against

466 the proposed Constitution,

467 of violating the sacred maxim of free government,

468 is warranted neither

469 by the real meaning annexed to that maxim

470 by its author,

471 nor by the sense in which it has hitherto

472 been understood in America.

473This interesting subject

474 will be resumed in the ensuing paper.

475PUBLIUS.