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 council 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 inferior 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.









THE FEDERALIST.