Generated summaryMadison explains what actually keeps power divided among the branches: not a wall of paper, and not popular votes to referee disputes, but a structure that gives each branch the means and the motive to defend itself against the others.
Federalist 47
Generated summaryMontesquieu never meant the branches to be wholly disconnected. His point, confirmed by Britain’s own constitution and every state’s, is only that no branch may hold the whole power of another.Key points
The charge that the Constitution violates the separation of powers fails; the maxim has been misunderstood.
To accumulate all powers, legislative, executive, and judiciary, in the same hands is the very definition of tyranny.
Montesquieu, the authority always cited, drew the maxim from a British constitution whose departments are by no means wholly separate.
His meaning: liberty is subverted only where one department holds the whole power of another, not where they share partial agency.
Every state constitution proclaims the maxim yet mixes the departments in practice.
The convention’s plan violates it in no point, forbidding only one whole department from exercising another’s powers.
Having reviewed the government’s general form and its mass of power, I turn to its particular structure. My subject is how that power is divided among its parts. One of the chief objections comes from respectable opponents. The Constitution, they say, breaks the maxim that the legislative, executive, and judiciary departments must be kept separate. It so blends them that some parts risk being crushed by the weight of others.
OriginalHAVING 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 rests on higher authority than this objection’s maxim. All powers, legislative, executive, and judiciary, in the same hands is the very definition of tyranny. That holds whether the hands are one, a few, or many, hereditary, self-appointed, or elective. Were the Constitution chargeable with that, or with a dangerous tendency toward it, no argument could save the system. I am confident the charge cannot be supported. The maxim it relies on has been entirely misunderstood. We must first find the sense in which liberty requires the three departments to be separate.
OriginalNo 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, self-appointed, 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 authority always cited here is Montesquieu. If he did not discover the precept, he displayed it best. He treated the British Constitution as the standard, or, in his own phrase, the mirror of political liberty, and set its principles down as elementary truths. To fix his meaning, let us go back to that source.
OriginalThe 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, the British departments are by no means wholly separate. The executive magistrate forms part of the legislative authority; he alone makes treaties, which within limits carry the force of law. He appoints every judge, and consults the judges as a council. One branch of the legislature is a council to the executive. That branch is also the sole judge in impeachments and the highest court of appeal.
OriginalOn 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 his meaning is clear. There is no liberty, he wrote, where the legislative and executive powers unite in one person or body. Nor is there liberty where judging is not separated from them. He did not mean that the departments may have no partial agency in, or control over, one another’s acts. He meant that where the same hands hold the whole power of two departments, a free constitution is subverted.
OriginalFrom 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.
That is not among the vices of the constitution he examined. The king cannot make a law, only veto one; he cannot judge, only appoint the judges. The judges exercise no executive or legislative power. The legislature does no judicial act, though it may remove judges and one branch is the court of last resort. It does no executive act, though one branch is the supreme executive magistracy.
OriginalThis 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.
His reasons confirm it. Where the legislative and executive unite, he says, there can be no liberty. One may fear that the same monarch or senate will enact tyrannical laws to execute them tyrannically. Join judging to the legislative, and the judge becomes the legislator; life and liberty lie open to arbitrary control. Join it to the executive, and the judge might act with all the violence of an oppressor.
OriginalThe 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.
Look into the state constitutions. Despite the emphatic terms of this axiom, not one keeps the departments wholly separate. New Hampshire, whose constitution came last, seems to have seen that avoiding all mixture is impossible and unwise. It kept the powers only as separate as a free government admits. Its Senate tries impeachments, and its President heads the executive yet presides in the Senate with a casting vote.
OriginalIf 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.
Massachusetts states the article less pointedly. No department, it declares, shall ever exercise another’s powers. That matches Montesquieu as explained, and the convention’s plan nowhere violates it. The plan forbids only a whole department from taking another’s powers. Yet that constitution itself admits a partial mixture. Its Senate tries impeachments of executive and judicial officers, and its legislature appoints several officers each year. Appointment is in its nature executive, so on this point the framers broke their own rule.
OriginalThe 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 Rhode Island and Connecticut. They were framed before the Revolution, before this principle drew notice. New York makes no declaration. Yet it was plainly framed with an eye to the danger of blending the departments. It still gives the executive, and even the judiciary, a partial control over the legislature. Its council of appointment joins legislators with the executive in naming officers, executive and judicial.
OriginalI 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.
New Jersey has blended the powers more than any state so far. Its governor is chosen by the legislature. He is chancellor, sits on the Supreme Court of Appeals, and presides with a casting vote over one legislative branch. In Pennsylvania the legislature dominates the yearly vote for president. With an executive council he appoints the judiciary. He also forms a court of impeachment for all officers, judicial as well as executive.
OriginalThe 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 magistrate is elected each year by the legislature. With six others the legislature names, he forms the Supreme Court of Appeals and helps appoint the other judges. The legislature appoints the chief executive officers, and one of its branches forms a court of impeachment. All officers may be removed on its address.
OriginalIn 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 adopts the maxim flatly: the powers ought to be forever separate and distinct. Yet its executive is chosen by the legislature, and its judges by the executive. Virginia is more pointed still: no person shall exercise the powers of more than one department, except that county justices may sit in either House. Yet its legislature appoints the chief magistrate and his council. It also fills the principal executive and judicial offices.
OriginalMaryland 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.
North Carolina declares these powers forever separate. Yet its legislature appoints the executive chief, and the principal officers of both that department and the judiciary. In South Carolina the legislature elects the executive. It appoints the judiciary too, down to justices of the peace and sheriffs. Georgia declares the departments separate. Yet its legislature fills the executive department, holds the final pardon, and names even justices of the peace.
OriginalThe 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 them I do not defend the state plans. They bear strong marks of the haste, and stronger of the inexperience, in which they were framed. In some the principle was broken by too great a mixture of powers. In none was real provision made to keep in practice the separation drawn on paper. My point is only this: the charge against the Constitution is warranted neither by the maxim’s author nor by the sense it has held in America.
OriginalIn 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 48
Generated summaryWords on parchment cannot hold power in place. The legislature draws all power toward itself, and Virginia’s and Pennsylvania’s experience shows the other departments need real defenses, not a line on paper.Key points
Marking the departments’ limits on parchment is not enough; each needs a constitutional control over the others.
The legislative department everywhere extends its sphere, drawing all power into its impetuous vortex.
Our founders watched only the hereditary executive and forgot the danger of legislative usurpation.
In a representative republic it is the legislature’s ambition, not the executive’s, that the people must fear.
Its extensive, ill-defined powers let it mask encroachments and control the pay of the other departments.
Virginia under Jefferson and Pennsylvania’s Council of Censors both show the legislature overrunning its bounds.
The last paper showed that this maxim does not require the legislative, executive, and judiciary departments to stand wholly apart. Each must have some constitutional control over the others. Without that, the separation the maxim asks for can never hold in practice. All agree that no department should wield another’s powers, or hold an overruling influence over them. Power by nature reaches past its bounds, and must be held inside them. The hard problem is a real guard for each against the others.
OriginalIT 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.
Is it enough to mark the bounds in the constitution and trust these parchment barriers? Most American constitutions relied chiefly on them, but experience shows their strength was greatly overrated. The weaker departments need a firmer defense, for the legislature everywhere draws all power into its impetuous vortex. Our founders seem to have watched one danger only: the all-grasping prerogative of a hereditary magistrate. They seem never to have recalled the danger from legislative usurpations. These gather all power into the same hands and lead to the same tyranny.
OriginalWill 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.
Where a hereditary monarch holds wide prerogatives, the executive is justly the source of danger. But in a representative republic the executive is closely limited in reach and term. The legislature draws bold confidence from its supposed influence over the people. It is large enough to feel a crowd’s passions, yet not too large to pursue them by means reason prescribes. Against the ambition of this department the people should exhaust every precaution.
OriginalIn 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 legislature’s powers are wider and harder to bound, so it can mask its encroachments under complex, roundabout measures. The executive is narrower and simpler, and the judiciary is marked by clearer landmarks. A usurpation by either would show itself at once and fail. The legislature alone reaches the people’s pockets, and holds full or leading influence over the pay of those who fill the other departments. That dependence makes encroachment easier still.
OriginalThe 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 appeal to our own experience, and take two states backed by two authorities beyond objection. The first is Virginia, whose constitution declares that the three great departments must not be mixed. My authority is Mr. Jefferson, its own chief magistrate. He writes that all the powers of government there fall to the legislative body, and that is precisely despotic government. Many hands are no relief: one hundred and seventy-three despots would oppress as surely as one. Nor does our choosing them help. An elective despotism was not what we fought for. We fought for powers so divided and balanced that none can pass its legal limits unchecked.
OriginalI 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.
He adds that Virginia separated the departments, but put no barrier between them. The judges and the executive depend on the legislature for their pay, and some for holding office. So if the legislature takes their powers, no protest is likely, and none that is made can work. It can cast its acts in the form of Assembly law, which binds the other branches. It has often decided rights belonging to the courts, and its command of the executive is becoming a habit.
OriginalFor 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."
My other example is Pennsylvania, and my other authority its Council of Censors of 1783 and 1784. That body was charged to ask whether the constitution had been kept whole, and whether either branch had overstepped. From facts both sides on the council mostly granted, it appears the legislature had broken the constitution openly and often. It passed public bills without printing them first, as the constitution requires. It violated trial by jury, assumed powers never delegated, and usurped executive powers. It varied the judges’ pay, which must be fixed, and drew cases belonging to the courts into legislative hands.
OriginalThe 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.
Some of this may be charged to the war, but most are the natural shoots of an ill-framed government. The executive was not innocent of frequent breaches either, though three things should be said. First, a great part sprang from the needs of the war, or were urged by Congress or the commander-in-chief. Second, most of the rest followed the known wishes of the legislature. Third, Pennsylvania’s executive has so many members that it looks like a legislative assembly. No member answers alone for the body’s acts, so it ventures beyond its powers more freely than a single hand.
OriginalThose 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; SECOND, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRD, 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 I am warranted in drawing from all I have shown is plain. A mere line drawn on parchment, marking the constitutional limits of the several departments, is not a sufficient guard. It cannot stop the encroachments that gather all the powers of government into the same hands. Such a concentration is tyranny.
OriginalThe 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
Federalist 49
Generated summaryJefferson would call a popular convention whenever a branch is thought to overstep. Such appeals would unsettle the government, put passion above reason, and favor the legislature, which could fill the convention with its own men.Key points
Jefferson’s plan of referring constitutional disputes to popular conventions is no fit standing remedy for encroachments.
His proposal: when two branches agree by two-thirds, a convention is called to correct breaches.
It suits republican theory, for the people alone are the source of power and no department can judge its own bounds.
Yet frequent appeals would strip the government of the veneration that time confers, and which it needs for stability.
They would rouse the public passions and endanger the public peace.
Above all, the legislature would dominate any appeal, pleading and judging its own cause.
The passions, not the reason, of the public would decide; but only its reason ought to govern.
The author of the Notes on the State of Virginia added a draft constitution. One precaution in it is perhaps wholly his own, and on it he finally relies to shield the weaker departments from the stronger. Two of the three branches, each by two-thirds of its whole number, may judge a convention needed. It shall then be called to alter the constitution or correct breaches of it.
OriginalTHE author of the "Notes on the State of Virginia," quoted in the last paper, has subjoined to that valuable work the draught of a constitution, which had been prepared in order to be laid before a convention, expected to be called in 1783, by the legislature, for the establishment of a constitution for that commonwealth. The plan, like every thing from the same pen, marks a turn of thinking, original, comprehensive, and accurate; and is the more worthy of attention as it equally displays a fervent attachment to republican government and an enlightened view of the dangerous propensities against which it ought to be guarded. One of the precautions which he proposes, and on which he appears ultimately to rely as a palladium to the weaker departments of power against the invasions of the stronger, is perhaps altogether his own, and as it immediately relates to the subject of our present inquiry, ought not to be overlooked.
His proposition is, "that whenever any two of the three branches of government shall concur in opinion, each by the voices of two thirds of their whole number, that a convention is necessary for altering the constitution, or CORRECTING BREACHES OF IT, a convention shall be called for the purpose."
The people are the only rightful source of power, and every branch holds its power under a charter from them. So republican theory favors going back to them, not only to enlarge, reduce, or remodel the powers of government, but whenever one department encroaches on another. The departments are co-equal under one commission, so none can claim a higher right to fix the boundaries. Only the people, who granted it, can say what it means and enforce it.
OriginalAs the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?
The reasoning has force: a constitutional road to the people should stay open for great and extraordinary occasions. But insurmountable objections bar it as a standing rule. First, it does not reach two departments combining against the third. The legislature has many means of working on the motives of the others. It might win over either of them, or even a third of its own members, leaving the last nothing. I do not press this; it strikes at the principle’s form, not the principle.
OriginalThere is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.
In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself.
A second objection lies in the principle itself. Every appeal implies some defect in the government. Frequent appeals would largely strip it of the reverence that time confers. Without that, even the wisest and freest governments might lack stability. Governments rest on opinion, and opinion grows firmer with numbers, firmer still when the examples are old. Even the most rational government gains from the community’s prejudices.
OriginalIn the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.
A graver objection is the danger of stirring the public passions and disturbing the peace. Our revisions have worked, but such experiments are too delicate to repeat needlessly. Every existing constitution was framed amid a danger that held down the passions hostile to order. Confidence in patriotic leaders silenced the usual disagreement. Zeal for new forms sprang from anger at the old government, and no party spirit touched the changes. Nothing ahead gives us the same security.
OriginalThe danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.
The greatest objection is that such appeals would not keep the constitutional balance. Republican governments tend to enlarge the legislature at the others’ expense, so the appeals would come from the executive and judiciary. Their members are few, known to only a small part of the people. Legislators are numerous and live among the people, and blood, friendship, and acquaintance bind them to the most influential part of society. The other side can hardly have an equal chance. Worse, the legislative party would probably judge its own cause, for the influence that elected its members would win them convention seats. The convention would consist chiefly of men who had been, were, or hoped to be of the department on trial.
OriginalBut the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.
But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.
Sometimes an appeal might come in circumstances less unfavorable to the executive and judiciary, as when a usurpation is too flagrant to disguise. The decision might then lean less toward the legislative party, but it could never be expected to turn on the true merits. It would be bound up with old parties, or with parties born of the question. And the very men who had pushed or opposed the measures would pronounce it. The passions, not the reason, of the public would sit in judgment. But the public’s reason alone ought to control the government, and its passions ought to be controlled by it.
OriginalIt might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of pre-existing parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.
We found in the last paper that mere declarations cannot keep the departments within their legal rights. Occasional appeals to the people would be neither proper nor effective. How far the plan’s other provisions might answer, I do not examine. Some rest on sound political principles, and all show singular ingenuity and precision.
OriginalWe found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principles, and all of them are framed with singular ingenuity and precision. PUBLIUS
Federalist 50
Generated summaryReviews on a fixed schedule fare no better. Pennsylvania’s Council of Censors split along old party lines, and proved that a scheduled review turns on faction, not calm judgment.Key points
Periodical appeals to the people at fixed intervals are no better remedy than occasional ones.
Short intervals leave measures recent and heated; long ones let abuses root deeply before any review.
A distant prospect of censure scarcely restrains power from present excesses.
Pennsylvania’s Council of Censors actually tried this, its members the very party leaders whose measures were under review.
Split into two violent parties, it proved passion, not reason, governs such bodies, and the remedy fails.
Someone may urge appeals to the people at fixed times, not as occasions arise, to prevent and correct breaches of the Constitution. I judge them only as a way to keep each department within bounds, not to change the Constitution. Fixed times seem nearly as bad as single occasions. Short gaps leave measures fresh and heated. Long gaps leave recent measures the same, and a calmer look at older ones brings offsetting drawbacks. First, a far-off threat of blame barely checks present excess. Second, the abuses often do their harm before the remedy comes. Third, where they do not, the abuses are deep-rooted and hard to remove.
OriginalIT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.
It will be attended to, that in the examination of these expedients, I confine myself to their aptitude for ENFORCING the Constitution, by keeping the several departments of power within their due bounds, without particularly considering them as provisions for ALTERING the Constitution itself. In the first view, appeals to the people at fixed periods appear to be nearly as ineligible as appeals on particular occasions as they emerge. If the periods be separated by short intervals, the measures to be reviewed and rectified will have been of recent date, and will be connected with all the circumstances which tend to vitiate and pervert the result of occasional revisions. If the periods be distant from each other, the same remark will be applicable to all recent measures; and in proportion as the remoteness of the others may favor a dispassionate review of them, this advantage is inseparable from inconveniences which seem to counterbalance it.
In the first place, a distant prospect of public censure would be a very feeble restraint on power from those excesses to which it might be urged by the force of present motives. Is it to be imagined that a legislative assembly, consisting of a hundred or two hundred members, eagerly bent on some favorite object, and breaking through the restraints of the Constitution in pursuit of it, would be arrested in their career, by considerations drawn from a censorial revision of their conduct at the future distance of ten, fifteen, or twenty years? In the next place, the abuses would often have completed their mischievous effects before the remedial provision would be applied. And in the last place, where this might not be the case, they would be of long standing, would have taken deep root, and would not easily be extirpated.
This plan has actually been tried. Pennsylvania’s Council of Censors met in 1783 and 1784. Its charge: to ask whether the constitution had been broken, and whether the legislative and executive departments had encroached on each other. A single trial does not settle the point, yet it bears out my reasoning. First, some of the council’s most active members led the parties already in the state. Second, those same men had shaped both departments in the period reviewed, backers or foes of the very measures now tested. Two had lately been vice-presidents of the state, and one speaker of the assembly.
OriginalThe scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, "whether the constitution had been violated, and whether the legislative and executive departments had encroached upon each other." This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed.
First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active members had also been active and leading characters in the parties which pre-existed in the State. Second. It appears that the same active and leading members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several other members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.
Third, every page of their record shows the council split into two fixed and violent parties, as they admitted. On every question, however small or unrelated, the same names stand opposed in the two columns. Any fair observer may infer that passion, not reason, ruled. Men who reason coolly differ on some questions; men ruled by one passion agree.
OriginalThird. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, PASSION, not REASON, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.
Fourth, the council’s decisions were not surely right; in some cases they may have misread the departments’ limits instead of enforcing them. Fifth, I have never known those decisions, right or wrong, to change the practice built on the legislature’s own reading. So this body proves the disease by its inquiries, and the remedy’s failure by its example. Nor does that state’s party rage excuse it. Will any state be free of parties at a future seven-year mark? We should neither expect nor wish it: the end of parties means either a general alarm for public safety, or the end of liberty.
OriginalFourth. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places. Fifth. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy. This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty.
Nor would it help to bar from these reviews everyone who served in government during the period. The task would probably fall to men of lesser ability, hardly better fitted. Even if they had no hand in the measures examined, they would likely belong to the parties behind them, and be chosen under their banner.
OriginalWere the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices. PUBLIUS
Federalist 51
Generated summaryThe real guard is built into the structure: each department gets the constitutional means, and the personal motive, to resist the others, so ambition checks ambition. Splitting power between the federal and state governments adds a second guard.Key points
The security for separation must come from within, so arranging the government’s parts that each keeps the others in place.
Each department needs a will of its own, its members drawn independently and not dependent on the others for salary.
Give each the constitutional means and personal motives to resist encroachment: ambition must be made to counteract ambition.
If men were angels, no government would be necessary; government must first control the governed, then control itself.
Dependence on the people is the primary control, but experience teaches the need for auxiliary precautions.
In a republic the legislature predominates, so divide it into branches and strengthen the weaker executive.
America’s compound republic splits power between two governments, then each among departments: a double security for the people.
The extended republic’s many interests and sects keep any unjust majority from combining against the minority.
What can we finally rely on to keep each department in its place? Outside checks have proved inadequate; the cure must come from the government’s own structure. I will hazard a few observations on how its parts may check each other. All agree that liberty needs the powers kept apart, at least to a degree. So each department needs a will of its own, and little hand in choosing the others. Every office would then come from the people through channels that never meet. Cost and trouble force a few departures, chiefly for judges: they need special skill, and permanent tenure ends dependence.
OriginalTO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
If the legislature holds their pay, the executive and the judges are independent in name only. Against a slow gathering of power, arm each department with the constitutional means, and the personal motives, to resist the others. Ambition must counteract ambition. If men were angels, no government would be necessary. In a government of men over men, you must first enable it to control the governed. Then you must oblige it to control itself. Dependence on the people is the primary control, but experience teaches the need for further guards.
OriginalIt is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Rival interests make up for the lack of better motives throughout human affairs. The state’s supreme powers need that prudence no less than the lesser offices. Yet no department can be armed equally, and in a republic the legislature is bound to be the strongest. The remedy is to divide it into branches, kept apart by different modes of election and action. The executive, being weaker, may need strengthening. An absolute veto, its seeming defense, would be neither wholly safe nor enough alone. Perhaps a qualified tie to the weaker legislative branch could supply that defect.
OriginalThis policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other--that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?
If these principles are just, as I persuade myself they are, the state constitutions bear the test far worse than the federal one. Two further points belong to our federal system. First, a single republic gives all the power the people surrender to one government. Dividing that government into separate departments guards against usurpation. Ours divides the power twice: between two governments, then among departments in each. So the people’s rights have a double security: the governments control each other, and each controls itself.
OriginalIf the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Second, a republic must guard the people from its rulers and from one another. Classes of citizens differ in interest, and a united majority leaves the minority unsafe. Only two remedies exist. One is a will independent of the majority, and so of society itself: hereditary or self-appointed rule. That security is shaky: such a power may back the majority’s injustice as readily as the minority’s right. The other takes in so many classes of citizens that an unjust majority combination grows very unlikely, if not impracticable. Our federal republic takes this second way. All its authority comes from society. Yet society breaks into so many parts and interests that minorities have little to fear from majority combinations.
OriginalSecond. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority--that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.
The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
Civil rights rest on the same ground as religious rights. That ground is many interests in one case, many sects in the other. Security in both grows with the country’s size and the number of people under one government. So a proper federal system deserves every sincere friend of republican government. Break the Union into smaller confederacies and oppressive majorities grow easier, every class of citizens less safe. The only other security, an independent part of the government, must rise.
OriginalIn a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.
Justice is the end of government, and of civil society. Where a society’s forms let the stronger faction unite and oppress the weaker, anarchy rules as in a state of nature. There even the strong, unsure of their safety, accept a government that shields the weak too. So the stronger factions come in time to want a government that protects all parties.
OriginalJustice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.
Our extended republic holds many interests, parties, and sects. A majority of the whole could seldom unite except on justice and the general good. The minority runs less danger, so there is less pretext for a will above society. The larger the society, within a practical sphere, the fitter it is to govern itself. And happily for the republican cause, a wise mixture of the federal principle can carry that sphere very far.
OriginalIt can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself.
It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. PUBLIUS
