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 should be wholly disconnected; his real point, confirmed by Britain's own constitution and every state's, is only that no single branch may hold the entire 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 general form of the proposed government, and the mass of power assigned to it, I turn now to its particular structure. My subject is how that power is divided among its several parts.
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 chief objections urged by the more respectable opponents of the Constitution is this: that it violates the maxim that the legislative, executive, and judiciary departments ought to be kept separate and distinct. In the federal government, they say, no regard has been paid to this essential safeguard of liberty. The departments of power, they charge, are so mixed and blended that the whole structure loses its symmetry. Some of its essential parts, they warn, are left in danger of being crushed by the disproportionate weight of others.
OriginalOne 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 of greater value, or rests on the authority of more enlightened friends of liberty, than the one on which this objection is founded. To accumulate all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny. This holds whether those hands are of one, a few, or many, and whether the power is hereditary, self-appointed, or elective. Were the federal Constitution truly chargeable with such an accumulation, or with a dangerous tendency toward it, no further argument would be needed to condemn the whole system. I am confident, though, that the charge cannot be sustained. The maxim it relies on has been entirely misunderstood and misapplied. To think clearly about it, we must first learn the precise sense in which the preservation of liberty requires the three great departments to be kept separate and distinct.
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 on this subject is Montesquieu. He may not have first discovered this precept in the science of politics. But he has at least the merit of displaying and recommending it to mankind more effectively than anyone else. Let us begin by establishing what he actually meant.
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 writers on epic poetry. They treat the work of that immortal poet as the perfect model from which the rules of the epic are drawn, and by which all similar works are judged. So this great political critic seems to have viewed the English constitution as the standard, or, in his own phrase, the mirror of political liberty. He set down its characteristic principles as elementary truths. To be sure we do not mistake his meaning, let us go back to the source from which the maxim was drawn.
OriginalThe 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 even the slightest examination of the British Constitution, we see at once that the three departments are by no means wholly separate and distinct. The executive magistrate forms an integral part of the legislative authority. He alone has the power to make treaties with foreign sovereigns, and these, once made, carry within certain limits the force of legislative acts. Every member of the judiciary is appointed by him. Each may be removed by him on the address of the two Houses of Parliament, and forms, when he chooses to consult it, one of his constitutional councils.
One branch of the legislature also serves as a great constitutional council to the executive. At the same time it is the sole holder of judicial power in cases of impeachment, and holds the supreme appellate jurisdiction in all other cases. The judges, in turn, are so connected with the legislative department that they often attend and take part in its deliberations, though they may not cast a legislative vote.
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, which guided Montesquieu, we may clearly infer his meaning. He wrote that there can be no liberty where the legislative and executive powers are united in the same person or body, or where the power of judging is not separated from the legislative and executive powers. He did not mean that these departments ought to have no partial agency in, or control over, one another’s acts. His meaning was narrower, as his own words show, and as the example before his eyes confirms. He meant only this: that where the whole power of one department is exercised by the same hands that hold the whole power of another, the fundamental principles of a free constitution are 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 would indeed have happened in the constitution he examined, in one of two cases: had the king, the sole executive magistrate, also held the complete legislative power or the supreme administration of justice; or had the entire legislative body held the supreme judicial or supreme executive authority. But neither is a defect of that constitution.
The magistrate in whom the whole executive power resides cannot by himself make a law, though he may veto any law. Nor can he administer justice in person, though he appoints those who do. The judges can exercise no executive prerogative, though they spring from the executive stock, nor any legislative function, though the legislative councils may consult them. The whole legislature can perform no judicial act, though by the joint act of two of its branches the judges may be removed, and though one branch holds the judicial power of last resort. And it can exercise no executive prerogative, though one branch forms the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn the subordinate officers of the executive department.
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.
The reasons Montesquieu gives for his maxim show his meaning still more clearly. When the legislative and executive powers are united in the same person or body, he says, there can be no liberty. One may then fear that the same monarch or senate will enact tyrannical laws in order to execute them tyrannically. And again: were the power of judging joined to the legislative, the life and liberty of the subject would lie open to arbitrary control, for the judge would then be the legislator. Were it joined to the executive, the judge might act with all the violence of an oppressor. Stated briefly, as they are here, these reasons are enough to fix the meaning we have given to this celebrated maxim of this celebrated author.
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 now into the constitutions of the several states. Despite the emphatic, sometimes unqualified terms in which this axiom is laid down, there is not a single instance in which the departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was formed last, seems to have grasped fully how impossible and unwise it is to avoid all mixture of these departments. It accordingly qualified the doctrine. It declared that these powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit, and as is consistent with the chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.
Its constitution accordingly mixes these departments in several ways. The Senate, a branch of the legislature, is also a court for trying impeachments. The President, head of the executive, also presides in the Senate; besides an ordinary vote, he has a casting vote in case of a tie. The executive head is himself elected each year by the legislature. His council is chosen each year from among its members. Several officers of state are appointed by it, and the members of the judiciary are appointed by the executive.
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.
The constitution of Massachusetts takes a sufficient, though less pointed, precaution in stating this fundamental article of liberty. It declares that the legislative department shall never exercise the executive or judicial powers; the executive shall never exercise the legislative or judicial powers; and the judicial shall never exercise the legislative or executive powers. This corresponds exactly with Montesquieu’s doctrine as explained. And the plan of the convention does not violate it in a single point, for it goes no further than to forbid any one whole department from exercising the powers of another.
Yet in the very constitution to which this declaration is prefixed, a partial mixture of powers is admitted. The executive magistrate has a qualified veto over the legislature. The Senate, part of the legislature, is a court of impeachment for members of the executive and judiciary departments. The members of the judiciary are appointable by the executive, and removable by it on the address of the two legislative branches. And a number of government officers are appointed each year by the legislature. Since appointment to office, especially executive office, is in its nature an executive function, the framers have, on this last point at least, violated the rule they set for themselves.
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 the constitutions of Rhode Island and Connecticut. They were formed before the Revolution, and even before the principle now under examination had become an object of political attention.
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 it was plainly framed with an eye to the danger of improperly blending the departments. Even so, it gives the executive magistrate a partial control over the legislature. It gives a like control to the judiciary, and even blends the executive and judiciary in exercising that control. In its council of appointment, members of the legislature are joined with the executive authority in appointing officers both executive and judiciary. And its court for trying impeachments and correcting errors is to consist of one branch of the legislature together with the principal members of the judiciary.
OriginalThe 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 powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature. He is chancellor and surrogate of the state, a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. That same legislative branch acts also as the governor’s executive council, and together with him forms the Court of Appeals. The members of the judiciary are appointed by the legislature, and removable by one of its branches on the impeachment of the other.
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.
Under the constitution of Pennsylvania, the president, head of the executive department, is elected each year by a vote in which the legislature predominates. Together with an executive council, he appoints the members of the judiciary. He also forms a court of impeachment for the trial of all officers, judicial as well as executive. The judges of the Supreme Court and the justices of the peace also appear to be removable by the legislature. And the executive power of pardon, in certain cases, seems to be lodged in that same department. The members of the executive council are made justices of the peace, by virtue of office, throughout the state.
OriginalAccording 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 elected each year by the legislature. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others appointed three by each legislative branch, forms the Supreme Court of Appeals; and he joins with the legislature in appointing the other judges. Throughout the states the members of the legislature may at the same time be justices of the peace. In Delaware the members of one legislative branch are justices of the peace by virtue of office, as are the members of the executive council. The principal officers of the executive department are appointed by the legislature. One of its branches forms a court of impeachment, and all officers may be removed on the address of the legislature.
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 has adopted the maxim in the most unqualified terms. Its constitution declares that the legislative, executive, and judicial powers ought to be forever separate and distinct from each other. It nonetheless makes the executive magistrate appointable by the legislature, and the members of the judiciary appointable by the executive.
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.
Virginia’s language is still more pointed. Its constitution declares that the three departments shall be separate and distinct, so that none exercises the powers properly belonging to another, and that no person shall exercise the powers of more than one of them at the same time. The one exception is that the justices of county courts may be eligible to either House of Assembly. Yet besides this express exception, we find several mixtures. The chief magistrate and his executive council are appointable by the legislature. Two members of the council are removed every three years at the legislature’s pleasure. All the principal offices, executive and judicial alike, are filled by that same department. And the executive prerogative of pardon is, in one case, vested in the legislature.
OriginalThe 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 declares that the legislative, executive, and supreme judicial powers ought to be forever separate and distinct. At the same time it assigns to the legislature the appointment not only of the executive chief, but of all the principal officers within both that department and the judiciary.
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 legislature. It gives the legislature, too, the appointment of the members of the judiciary, including even justices of the peace and sheriffs. And it gives the legislature the appointment of officers in the executive department, down to captains in the army and navy of the state.
OriginalIn 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 Georgia, the constitution declares that the three departments shall be separate and distinct, so that none exercises the powers properly belonging to another. Yet we find otherwise. The executive department is filled by appointments of the legislature. The executive prerogative of pardon is finally exercised by that same authority. And even justices of the peace are appointed by the legislature.
OriginalIn 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 three departments have not been kept totally separate, I do not wish to be understood as defending the particular arrangements of the several state governments. I am fully aware that, alongside the many excellent principles they exemplify, they bear strong marks of the haste, and still stronger marks of the inexperience, under which they were framed. It is all too plain that in some cases the very principle under consideration has been violated, by too great a mixture, and even an actual consolidation, of the different powers. And in no case has any adequate provision been made to maintain in practice the separation drawn on paper.
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 summaryWritten limits on paper cannot restrain power by themselves, since the legislature naturally draws all authority toward itself, and Virginia's and Pennsylvania's own experience shows the other branches need real defenses, not just a declared boundary.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 the maxim about separating the legislative, executive, and judiciary departments does not require that they be wholly disconnected. I now take up the next point. These departments must be connected and blended enough to give each a constitutional control over the others. Without that, the very separation the maxim calls for, so essential to free government, can never in practice be maintained.
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.
Everyone agrees that the powers properly belonging to one department ought not to be directly and completely administered by another. And none of them should hold, directly or indirectly, an overruling influence over the others. Nor will anyone deny that power is by nature encroaching, and ought to be effectually restrained within its assigned limits. We have distinguished, in theory, the several classes of power as legislative, executive, or judiciary. The next and most difficult task is to provide some practical security for each against invasion by the others. What that security ought to be is the great problem to be solved.
OriginalIt 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 boundaries of these departments precisely in the constitution, and then trust to these parchment barriers against the encroaching spirit of power? This is the security chiefly relied on by those who framed most of the American constitutions. But experience assures us that its power has been greatly overrated. Some more adequate defense is indispensable for the weaker members of the government against the stronger. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.
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 deserve so much credit for their wisdom that no task could be less pleasing than pointing out their errors. Yet respect for truth obliges us to remark on one. They seem never, for a moment, to have turned their eyes from a single danger to liberty: the overgrown, all-grasping prerogative of a hereditary magistrate, propped up by a hereditary branch of the legislature. They seem never to have recalled the danger from legislative usurpations. Yet these, by gathering all power into the same hands, must lead to the same tyranny that executive usurpations threaten.
OriginalThe 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.
In a government where a hereditary monarch holds numerous and extensive prerogatives, the executive department is justly regarded as the source of danger. It is watched with all the jealousy that a zeal for liberty inspires. In a direct democracy, a multitude exercises the legislative functions in person. There the people, unable to deliberate in a regular and concerted way, are continually exposed to the ambitious intrigues of their executive magistrates. So there too tyranny may be feared to spring up, on some favorable occasion, from that same quarter.
But in a representative republic, the case is different. Here the executive magistracy is carefully limited in both the extent and the duration of its power. Meanwhile the legislative power is exercised by an assembly that draws an intrepid confidence from its supposed influence over the people. That assembly is numerous enough to feel all the passions that move a multitude. Yet it is not so numerous as to be incapable of pursuing the objects of those passions by means that reason prescribes. It is against the enterprising ambition of this department that the people ought to direct all their jealousy, and exhaust all their precautions.
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 legislative department gains a further superiority in our governments from other circumstances. Its constitutional powers are at once more extensive, and less open to precise limits. So it can more easily mask, under complicated and indirect measures, the encroachments it makes on the other departments. It is often a genuinely tricky question in legislative bodies whether a particular measure will or will not reach beyond the legislative sphere. The executive power, by contrast, is confined within a narrower compass, and is simpler in nature. And the judiciary is marked off by landmarks still less uncertain. So any project of usurpation by either of these departments would immediately betray and defeat itself.
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. The legislative department alone has access to the pockets of the people. And it holds, in some constitutions full discretion, and in all a prevailing influence, over the pay of those who fill the other departments. This creates a dependence in the others that gives the legislature still greater facility for its encroachments.
OriginalNor 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 have appealed to our own experience for the truth of what I advance here. Were it necessary to verify that experience by particular proofs, they could be multiplied without end. I might call a witness in every citizen who has shared in, or watched, the course of public administration. I might collect vouchers in abundance from the records and archives of every state in the Union. But for evidence that is more concise, and equally satisfactory, I will refer to the example of two states, attested by two unexceptionable authorities.
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 Virginia, a state that 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. Besides his other advantages for observing the operation of the government, he was himself its chief magistrate. To convey fully the ideas his experience had impressed on him, I must quote at some length from his Notes on the State of Virginia.
OriginalThe 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.
Jefferson writes: “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.”
Original"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 continues that, for this reason, the convention which passed the ordinance of government laid its foundation on a clear principle. 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 executive members were left dependent on the legislature for their pay in office, and some of them for staying in office at all. So if the legislature assumes executive and judiciary powers, no opposition is likely to be made. And any opposition that is made cannot be effectual, for the legislature can cast its proceedings in the form of acts of Assembly, which then bind the other branches. Accordingly, Jefferson reports, the legislature has in many instances decided rights that should have been left to judicial controversy. And its direction of the executive, throughout the whole time of its session, is becoming habitual and familiar.
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."
The other state I take as an example is Pennsylvania, and the other authority is its Council of Censors, which met in 1783 and 1784. Part of this body’s duty under the constitution was to inquire whether the constitution had been preserved inviolate in every part. It was to inquire, too, whether the legislative and executive branches had performed their duty as guardians of the people, or had instead assumed powers greater than the constitution allowed. In carrying out this trust, the council necessarily compared the legislative and executive proceedings against the constitutional powers of those departments. From the facts they enumerated, most of which both sides on the council accepted as true, it appears that the constitution had been flagrantly violated by the legislature in many important instances.
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 in violation of the rule that all bills of a public nature must first be printed for the people’s consideration. This was done without any apparent necessity, even though that rule is one of the precautions the constitution chiefly relies on against improper acts of the legislature. The constitutional trial by jury had been violated, and powers assumed that the constitution had not delegated. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been varied from time to time. And cases belonging to the judiciary were frequently drawn into legislative cognizance and decision.
OriginalA 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.
Anyone who wishes to see the particular cases under each of these heads may consult the council’s journals, which are in print. Some of these instances, it will be found, may be charged to peculiar circumstances connected with the war. But the greater part may be regarded as the natural shoots of an ill-constituted government.
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, too, that the executive department had not been innocent of frequent breaches of the constitution. Three observations, however, ought to be made on this point. First, a great proportion of these instances were either produced immediately by the necessities of the war, or recommended by Congress or the commander-in-chief. Second, in most of the other instances, the executive conformed to the declared or known sentiments of the legislative department. Third, the executive department of Pennsylvania is distinguished from that of the other states by the number of its members. In this respect it has as much affinity to a legislative assembly as to an executive council. Being exempt from the restraint of individual responsibility for the body’s acts, and drawing confidence from mutual example and joint influence, such a body would naturally hazard unauthorized measures more freely than an executive administered by a single hand, or by a few.
OriginalIt 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 these observations is this. A mere line drawn on parchment, marking the constitutional limits of the several departments, is not a sufficient guard against the encroachments that lead to a tyrannical concentration of all the powers of government in the same hands.
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's idea of calling a popular convention whenever a branch is thought to overstep sounds democratic but would unsettle government, stir passion over reason, and favor the legislature, which could pack such a convention with its own allies.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, quoted in the last paper, attached to that work a draft constitution. He had prepared it for a convention expected to be called in 1783 to establish a constitution for that commonwealth. Like everything from the same hand, the plan shows a mode of thinking that is original, comprehensive, and exact. It deserves attention because it combines a fervent attachment to republican government with a clear-eyed view of the dangers that government must guard against. One of its precautions is perhaps entirely his own, and it is the one on which he seems finally to rely to shield the weaker departments from the invasions of the stronger. Because it bears directly on our present inquiry, we should not pass it over.
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 proposal is this. Whenever any two of the three branches of government agree, each by a two-thirds vote of its whole number, that a convention is necessary for altering the constitution, or for correcting breaches of it, a convention shall be called for that purpose.
OriginalHis 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 legitimate source of power. The constitutional charter under which the several branches hold their authority is derived from them. So it accords strictly with republican theory to return to that same original authority. We should do so not only when the powers of government must be enlarged, reduced, or remodeled, but also whenever one department encroaches on the chartered authority of the others. The departments are perfectly co-equal under the terms of their common commission. None of them, then, can claim an exclusive or superior right to settle the boundaries between their powers. How else are the encroachments of the stronger to be prevented, or the wrongs of the weaker redressed? Only by an appeal to the people, who, as grantors of the commissions, can alone declare their true meaning and enforce their observance.
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?
There is real force in this reasoning. It proves 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 are insurmountable objections to making such recurrence to the people a standing provision, applied in every case, for keeping the departments within their constitutional limits.
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.
First, the provision does not reach the case of two departments combining against the third. The legislature commands many means of working on the motives of the other branches. It might win over either of the others, or even one third of its own members. Then the remaining department would gain nothing from this remedy. I do not press this objection far, however. It may be taken as an argument against the particular form of the principle, rather than against the principle itself.
OriginalIn 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.
Next comes an objection inherent in the principle itself. Every appeal to the people implies some defect in the government. So frequent appeals would largely strip the government of the veneration that time confers on everything, and without which perhaps even the wisest and freest governments would not have the stability they require. If all governments rest on opinion, so does the strength of any one opinion in each person. Its practical hold on his conduct depends much on how many others he believes hold the same opinion. The reason of man, like man himself, is timid and cautious when it stands alone. It gains firmness and confidence in proportion to the number with which it is joined. When the examples that fortify an opinion are ancient as well as numerous, their effect is doubled.
In a nation of philosophers this consideration might be disregarded. An enlightened reason would itself instill a sufficient reverence for the laws. But a nation of philosophers is as little to be expected as the race of philosopher-kings that Plato wished for. In every other nation, even the most rational government will find it no superfluous advantage to have the prejudices of the community on its side.
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 still graver objection to referring constitutional questions frequently to the whole society is the danger of disturbing the public peace. It would rouse the public passions too strongly. Our revisions of the established forms of government have succeeded, and that success does great honor to the virtue and intelligence of the American people. Yet these experiments are too delicate in nature to be multiplied without need.
We should recall the circumstances in which all the existing constitutions were framed. They were framed amid a danger that suppressed the passions most hostile to order and concord; amid an enthusiastic confidence of the people in their patriotic leaders, which silenced the usual diversity of opinion on great national questions; amid a universal zeal for new and contrary forms, born of a universal resentment against the old government; and at a time when no spirit of party was bound up with the changes to be made or the abuses to be reformed. The situations we must expect hereafter offer no equivalent security against the danger we fear.
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.
But the greatest objection of all is this: the decisions likely to come from such appeals would not serve the purpose of maintaining the constitutional balance of the government. We have seen that republican governments tend to enlarge the legislature at the expense of the other departments. So the appeals to the people would usually be made by the executive and judiciary. But whoever made them, would the two sides meet on equal terms? Consider their different situations.
The members of the executive and judiciary are few, and can be personally known to only a small part of the people. By the manner of their appointment, and its nature and permanence, they stand too far from the people to share much in their attachments. They are commonly objects of jealousy, and their administration is always liable to be cast in an unfavorable light. The members of the legislature, by contrast, are numerous. They are spread through the country, and live among the people at large. Their ties of blood, friendship, and acquaintance reach a great share of the most influential part of society. The very nature of their trust gives them personal influence among the people, and makes them seem the closer guardians of the people’s rights and liberties. With these advantages on one side, the opposing party can hardly be supposed to have an equal chance of a favorable outcome.
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.
The legislative party would not only plead its cause most successfully with the people. It would probably end up sitting in judgment of its own cause. The same influence that won its members an election to the legislature would win them seats in the convention. If not all, then many would be chosen, and almost certainly those leading figures on whom everything in such bodies depends. In short, the convention would be composed chiefly of men who had been, who actually were, or who expected to be, members of the very department whose conduct was on trial. They would therefore be parties to the very question they were to decide.
OriginalBut 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.
It might still sometimes happen that an appeal would be made under circumstances less unfavorable to the executive and judiciary. The usurpations of the legislature might be so flagrant and sudden as to leave no plausible cover for them. A strong faction within the legislature itself might side with the other branches. The executive power might lie in the hands of a special favorite of the people. In such a posture, the public decision might be less swayed by attachment to the legislative party.
Even so, it could never be expected to turn on the true merits of the question. It would inevitably be bound up with the spirit of pre-existing parties, or of parties arising out of the question itself. It would be tied to persons of distinguished character and wide influence in the community. And it would be pronounced by the very men who had been agents in, or opponents of, the measures the decision concerned. The passions, therefore, and 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.
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 in the written constitution are not enough to keep the several departments within their legal rights. It appears in this paper that occasional appeals to the people would be neither a proper nor an effective provision for that purpose. How far the other provisions in the plan quoted above might serve, I do not examine. Some of them are unquestionably founded on sound political principles, and all are framed with 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 summarySetting conventions at fixed intervals fares no better: Pennsylvania's own Council of Censors, tried in practice, split along old party lines and proved that scheduled review still 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 might argue for a different remedy. Instead of occasional appeals to the people, which face the objections already raised, periodical appeals set at fixed intervals might be the proper and sufficient way to prevent and correct violations of the Constitution. In weighing this method I confine myself to one question: how well would it enforce the Constitution by keeping each department within its proper limits? I do not ask whether it might serve as a way of altering the Constitution itself.
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.
Judged on that ground, appeals to the people at fixed periods seem almost as objectionable as appeals on particular occasions. If the intervals are short, the measures up for review will be recent. They will carry all the heated circumstances that distort the result of occasional revisions. If the intervals are long, the same problem still applies to whatever measures are recent. Distance from the older measures may allow a calmer review of them. But that one advantage comes bound up with drawbacks that seem to cancel it out.
OriginalIt 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.
Consider those drawbacks. First, the distant prospect of public censure would barely restrain power from the excesses that present motives might push it toward. Imagine a legislative assembly of a hundred or two hundred members, set on some favorite object and breaking through constitutional limits to reach it. Would it be stopped in its course by the thought of having its conduct reviewed ten, fifteen, or twenty years later? Second, the abuses would often finish their damage before the corrective review ever arrived. And third, where that was not so, the abuses would by then be of long standing, would have taken deep root, and would not easily be removed.
OriginalIn 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.
The plan of revising the constitution to correct recent breaches of it, among other aims, has actually been tried in one of the states. One purpose of the Council of Censors that met in Pennsylvania in 1783 and 1784 was, as we have seen, to inquire whether the constitution had been violated. It was to inquire, too, whether the legislative and executive departments had encroached on each other. This important and novel political experiment deserves close attention. As a single trial made under somewhat unusual circumstances, it may in some respects be thought not absolutely conclusive. But applied to the question before us, it supplies facts that fully and satisfactorily illustrate the reasoning I have used.
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, the names of the gentlemen who made up the council tell us something. At least some of its most active members had also been active and leading figures in the parties that already existed in the state. Second, those same members had been influential in the legislative and executive branches during the very period under review. They had been either patrons or opponents of the very measures now to be tested against the constitution. Two had served as vice-presidents of the state, and several others on the executive council, within the preceding seven years. One had been speaker, and a number of others prominent members, of the legislative assembly during the same span.
OriginalFirst. 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 proceedings shows the effect of these circumstances on the temper of their deliberations. For its whole duration the council was split into two fixed and violent parties, a fact they admitted and lamented themselves. Even setting that admission aside, the record offers equal proof. On every question, however trivial or unrelated to the others, the same names stand invariably opposed in the two columns. Any unbiased observer may safely infer that passion, not reason, must have governed their decisions. This casts no reflection on either party or any of its members. Men who reason coolly and freely across many separate questions inevitably disagree on some. Men driven by a common passion arrive at the same opinions, if such they can be called.
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, it is at least open to doubt whether the council’s decisions were always right. In several instances they may have misread the limits set for the legislative and executive departments, rather than holding those departments to their constitutional places. Fifth, I have never understood that the council’s rulings on constitutional questions, whether sound or mistaken, had any effect in changing the practice built on the legislature’s own interpretations. It even appears, if I am not mistaken, that in one instance the legislature of the day rejected the council’s reading, and actually won the contest.
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 two things at once. By its inquiries, it proves that the disease exists. By its own example, it proves that this remedy does not work. The conclusion cannot be set aside by one objection: that the state where the experiment was made happened then, and had long been, violently heated and torn by party rage. Are we to assume that at any future seven-year mark that same state will be free of parties? Or that any other state, at that period or any other, will be exempt from them? Such a condition should be neither expected nor wished for. The extinction of parties implies either a universal alarm for the public safety, or the complete extinction of liberty.
OriginalThis 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 the difficulty be solved by a precaution. Suppose we barred from these review assemblies everyone who had taken part in the government during the period under review. The task would then likely fall to men of lesser ability, who were not much better qualified in other respects. And even if they had not been personally involved in the administration, and so were not direct agents in the measures to be examined, they would probably have belonged to the parties tied to those measures, and have been elected 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 safeguard is structural: give each branch the constitutional means and the personal incentive to resist the others, so ambition checks ambition, while dividing power between federal and state governments adds a second, independent layer of protection.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, then, can we finally rely on to keep the departments within the bounds the Constitution lays down? The external provisions have proved inadequate. The defect must be supplied from within, by so arranging the interior structure of the government that its several parts, through their mutual relations, keep one another in their proper places. I will not try to develop this fully. But a few general observations may make it clearer, and help us judge the government the convention has planned.
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.
Liberty requires that each power be exercised separately and distinctly, at least to a certain degree; all sides admit this. To lay a proper foundation for it, each department must have a will of its own. Its members, then, should have as little say as possible in choosing the members of the others. Followed strictly, this rule would draw the executive, legislative, and judicial officers all from the same source, the people, through channels entirely independent of one another. Such a plan might be less difficult in practice than it seems in theory. Still, it would bring some difficulty and added expense, so a few deviations must be allowed.
The judiciary in particular makes a strict application unwise. Special qualifications are essential in judges, so the first aim must be to choose the method that best secures them. And because judges hold their offices permanently, they will soon lose any sense of dependence on the authority that appointed them.
OriginalIn 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.
It is equally clear that the members of each department should depend as little as possible on the others for their salaries. If the executive or the judges were not independent of the legislature in this, their independence in every other respect would be merely nominal.
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.
The great security against a gradual concentration of power in one department is to give those who run each department the constitutional means, and the personal motives, to resist encroachments by the others. The means of defense must be made proportionate to the danger of attack. Ambition must be made to counteract ambition, and the interest of the officeholder must be tied to the constitutional rights of his office. It may reflect poorly on human nature that such devices are needed 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; and if angels governed men, neither external nor internal controls on government would be necessary.
In framing a government of men over men, the great difficulty is this: you must first enable the government to control the governed, and then oblige it to control itself. A dependence on the people is no doubt the primary control. But experience has taught mankind the need for auxiliary precautions.
OriginalBut 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.
This policy, of supplying the lack of better motives by opposite and rival interests, runs through the whole of human affairs, private as well as public. We see it especially in the lesser distributions of power. There the constant aim is to arrange the several offices so that each checks the others, and so that the private interest of every man stands sentinel over the public rights. Such inventions of prudence are no less needed in distributing the supreme powers of the state.
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.
It is not possible, though, to give every department an equal power of self-defense. In republican government the legislative authority necessarily predominates. The remedy is to divide the legislature into different branches. By different modes of election and different principles of action, they should be kept as little connected with one another as their shared functions and shared dependence on society allow. Further precautions against dangerous encroachments may even be needed.
Since the weight of the legislature requires that it be divided, the weakness of the executive may require that it be strengthened. An absolute veto on the legislature seems at first the natural defense for the executive. Yet it would be neither wholly safe nor sufficient by itself. On ordinary occasions it might not be used with enough firmness; on extraordinary ones it might be treacherously abused. Perhaps the defect can be supplied by some qualified connection between the weaker executive and the weaker branch of the legislature, one that leads that branch to support the executive’s rights without detaching it too far from the rights of its own department.
OriginalBut 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 the principles behind these observations are sound, as I am persuaded they are, let us test the several state constitutions and the federal Constitution by them. We will find that, even where the federal Constitution falls short, the state constitutions are far less able to bear the test.
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.
Two further considerations apply particularly to the federal system of America, and place it in a very interesting light.
OriginalThere 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 given to one government. Usurpations are guarded against by dividing that 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; then the portion given to each is subdivided among distinct and separate departments. A double security therefore arises for the rights of the people. The two governments will control each other, and each will at the same time control itself.
OriginalFirst. 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. In a republic it is of great importance to guard society not only against the oppression of its rulers, but against the injustice of one part of society toward another. Different interests necessarily exist among different classes of citizens. If a majority is united by a common interest, the rights of the minority will be insecure. There are only two ways to guard against this evil. One is to create a will in the community independent of the majority, that is, independent of society itself. The other is to take in so many separate kinds of citizens that an unjust combination of a majority becomes very improbable, if not impracticable.
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 way prevails in all governments that hold a hereditary or self-appointed authority. This is at best a precarious security. A power independent of society may take up the unjust views of the majority as readily as the rightful interests of the minority, and may even turn against both. The second way will be shown in the federal republic of the United States. All authority there will be derived from, and dependent on, society. Yet society itself will be broken into so many parts, interests, and classes of citizens that the rights of individuals and of the minority will be in little danger from interested combinations of the majority.
OriginalThe 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.
In a free government the security for civil rights must be the same as that for religious rights. In the one case it lies in the multiplicity of interests; in the other, in the multiplicity of sects. The degree of security in both depends on the number of interests and sects, and that in turn on the size of the country and the number of people under one government. This recommends a proper federal system to every sincere friend of republican government. For it shows what happens as the Union is broken into smaller confederacies or states: oppressive combinations of a majority grow easier, the best security for the rights of every class of citizens is weakened, and the only remaining security, the stability and independence of some part of the government, must be increased to make up for it.
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. It is the end of civil society. It ever has been, and ever will be, pursued until it is attained, or until liberty is lost in the pursuit. Take a society whose forms let the stronger faction readily unite and oppress the weaker. In it, anarchy may be said to reign as truly as in a state of nature, where the weaker individual has no security against the violence of the stronger. In that state of nature, even the stronger individuals are moved, by the uncertainty of their condition, to submit to a government that protects the weak along with themselves. In such a society, the more powerful factions are gradually moved, by the same motive, to wish for a government that will protect all parties, the weaker as well as the stronger.
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.
It can hardly be doubted that if Rhode Island were cut off from the Confederacy and left to itself, the insecurity of rights under a popular government in so small a compass would soon appear. Factious majorities would oppress the minority so repeatedly that some power altogether independent of the people would soon be demanded, by the very factions whose misrule had proved the need for it. In the extended republic of the United States, with its great variety of interests, parties, and sects, a majority of the whole society could seldom combine except on principles of justice and the general good. Since there is thus less danger to a minority from the will of a majority, there is also less pretext for setting up a will independent of society to protect it.
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.
Despite contrary opinions, this is no less certain than it is important: the larger the society, provided it stays within a practical sphere, the more capable it will be of self-government. And happily for the republican cause, that practicable sphere may be carried very far, by a judicious modification and mixture of the federal principle.
OriginalIt 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
