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.
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
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