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<h1 class="entry-title"><a rel="bookmark" href="47">Federalist &#8470; 47</a></h1>
<h2 class="entry-summary">
The Particular Structure of the New Government and the
Distribution of Power Among Its Different Parts
<div class="entry-content">
<p id="salutation">To the People of the State of New York:</p>
<p id="p1"><span class="initial">Having</span> 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. <a class="permalink"
<p id="p2">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. <a class="permalink" href="#p2">&#182;</a></p>
<p id="p3">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. <a class="permalink" href="#p3">&#182;</a></p>
<p id="p4">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. <a class="permalink"
<p id="p5">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. <a class="permalink" href="#p5">&#182;</a></p>
<p id="p6">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. <a class="permalink" href="#p6">&#182;</a></p>
<p id="p7">From these facts, by which Montesquieu was guided, it
may clearly be inferred that, in saying <q>There can be no liberty
where the legislative and executive powers are united in the same
person, or body of magistrates,</q> or, <q>if the power of judging
be not separated from the legislative and executive powers,</q> he
did not mean that these departments ought to have no <em>partial
agency</em> in, or no <em>control</em> 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 <em>whole</em> power of one
department is exercised by the same hands which possess the
<em>whole</em> 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. <a class="permalink" href="#p7">&#182;</a></p>
<p id="p8">The reasons on which Montesquieu grounds his maxim are
a further demonstration of his meaning. <q>When the legislative
and executive powers are united in the same person or body,</q>
says he, <q>there can be no liberty, because apprehensions may
arise lest <em>the same</em> monarch or senate should
<em>enact</em> tyrannical laws to <em>execute</em> them in a
tyrannical manner.</q> Again: <q>Were the power of judging joined
with the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for <em>the judge</em> would then be
<em>the legislator</em>. Were it joined to the executive power,
<em>the judge</em> might behave with all the violence of <em>an
oppressor</em>.</q> 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. <a class="permalink"
<p id="p9">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 <q>that
the legislative, executive, and judiciary powers ought to be kept
as separate from, and independent of, each other <em>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</em>.</q>
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. <a class="permalink" href="#p9">&#182;</a></p>
<p id="p10">The constitution of Massachusetts has observed a
sufficient though less pointed caution, in expressing this
fundamental article of liberty. It declares <q>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.</q> 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. <a
class="permalink" href="#p10">&#182;</a></p>
<p id="p11">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. <a class="permalink" href="#p11">&#182;</a></p>
<p id="p12">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. <a class="permalink"
<p id="p13">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. <a class="permalink"
<p id="p14">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
<em>ex-officio</em> justices of peace throughout the State. <a
class="permalink" href="#p14">&#182;</a></p>
<p id="p15">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 <em>ex-officio</em> 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. <a class="permalink"
<p id="p16">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. <a
class="permalink" href="#p16">&#182;</a></p>
<p id="p17">The language of Virginia is still more pointed on this
subject. Her constitution declares, <q>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.</q>
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. <a class="permalink"
<p id="p18">The constitution of North Carolina, which declares
<q>that the legislative, executive, and supreme judicial powers of
government ought to be forever separate and distinct from each
other,</q> 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. <a class="permalink" href="#p18">&#182;</a></p>
<p id="p19">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. <a
class="permalink" href="#p19">&#182;</a></p>
<p id="p20">In the constitution of Georgia, where it is declared
<q>that the legislative, executive, and judiciary departments
shall be separate and distinct, so that neither exercise the
powers properly belonging to the other,</q> 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. <a class="permalink"
<p id="p21">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. <a class="permalink" href="#p21">&#182;</a></p>
<address class="vcard author">
<span class="nickname">Publius</span>.
[<span class="fn">James Madison</span>]
<div class="meta">
First published in the <abbr class="published updated"
title="1788-02-01">Friday, February 1, 1788</abbr> issue of the
<span class="publication">New York Packet</span>.
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