The Structure of the Government
Must Furnish the Proper Checks and Balances Between the Different
Departments.
From the New York Packet. Friday, February 8, 1788.
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort,
for maintaining in practice the necessary partition of power
among the several departments, as laid down in the Constitution?
The only answer that can be given is, that as all these exterior
provisions are found to be inadequate, the defect must be supplied,
by so contriving the interior structure of the government as
that its several constituent parts may, by their mutual relations,
be the means of keeping each other in their proper places. Without
presuming to undertake a full development of this important
idea, I will hazard a few general observations, which may perhaps
place it in a clearer light, and enable us to form a more correct
judgment of the principles and structure of the government planned
by the convention.
In order to lay a due foundation for that
separate and distinct exercise of the different powers of government,
which to a certain extent is admitted on all hands to be essential
to the preservation of liberty, it is evident that each department
should have a will of its own; and consequently should be so
constituted that the members of each should have as little agency
as possible in the appointment of the members of the others.
Were this principle rigorously adhered to, it would require
that all the appointments for the supreme executive, legislative,
and judiciary magistracies should be drawn from the same fountain
of authority, the people, through channels having no communication
whatever with one another. Perhaps such a plan of constructing
the several departments would be less difficult in practice
than it may in contemplation appear. Some difficulties, however,
and some additional expense would attend the execution of it.
Some deviations, therefore, from the principle must be admitted.
In the constitution of the judiciary department in particular,
it might be inexpedient to insist rigorously on the principle:
first, because peculiar qualifications being essential in the
members, the primary consideration ought to be to select that
mode of choice which best secures these qualifications; secondly,
because the permanent tenure by which the appointments are held
in that department (see Constitution
3.1), must soon destroy all
sense of dependence on the authority conferring them.
It is equally evident, that the members of each
department should be as little dependent as possible on those
of the others, for the emoluments annexed to their offices.
Were the executive magistrate, or the judges, not independent
of the legislature in this particular, their independence in
every other would be merely nominal.
But the great security against a gradual concentration
of the several powers in the same department, consists in giving
to those who administer each department the necessary constitutional
means and personal motives to resist encroachments of the others.
The provision for defense must in this, as in all other cases,
be made commensurate to the danger of attack. Ambition must
be made to counteract ambition. The interest of the man must
be connected with the constitutional rights of the place. It
may be a reflection on human nature, that such devices should
be necessary to control the abuses of government. But what is
government itself, but the greatest of all reflections on human
nature? If men were angels, no government would be necessary.
If angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a government
which is to be administered by men over men, the great difficulty
lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself.
A dependence on the people is, no doubt, the primary control
on the government; but experience has taught mankind the necessity
of auxiliary precautions.
This policy of supplying, by opposite and rival
interests, the defect of better motives, might be traced through
the whole system of human affairs, private as well as public.
We see it particularly displayed in all the subordinate distributions
of power, where the constant aim is to divide and arrange the
several offices in such a manner as that each may be a check
on the other that the private interest of every individual may
be a sentinel over the public rights. These inventions of prudence
cannot be less requisite in the distribution of the supreme
powers of the State.
But it is not possible to give to each department
an equal power of self-defense. In republican government, the
legislative authority necessarily predominates. The remedy for
this inconveniency is to divide the legislature into different
branches (see Constitution
1.1); 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 [the President]
and the weaker branch [Senate] of the stronger department (see
Constitution
2.2.2), 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 on which these observations
are founded be just, as I persuade myself they are, and they
be applied as a criterion to the several State constitutions,
and to the federal Constitution it will be found that if the
latter does not perfectly correspond with them, the former are
infinitely less able to bear such a test.
There are, moreover, two considerations particularly
applicable to the federal system of America, which place that
system in a very interesting point of view.
First. In a single republic, all the power surrendered
by the people is submitted to the administration of a single
government; and the usurpations are guarded against by a division
of the government into distinct and separate departments. In
the compound republic of America, the power surrendered by the
people is first divided between two distinct governments, and
then the portion allotted to each subdivided among distinct
and separate departments. Hence a double security arises to
the rights of the people. The different governments will control
each other, at the same time that each will be controlled by
itself.
Second. It is of great importance in a republic
not only to guard the society against the oppression of its
rulers, but to guard one part of the society against the injustice
of the other part. Different interests necessarily exist in
different classes of citizens. If a majority be united by a
common interest, the rights of the minority will be insecure.
There are but two methods of providing against this evil: the
one by creating a will in the community independent of the majority
that is, of the society itself; the other, by comprehending
in the society so many separate descriptions of citizens as
will render an unjust combination of a majority of the whole
very improbable, if not impracticable. The first method prevails
in all governments possessing an hereditary or self-appointed
authority. This, at best, is but a precarious security; because
a power independent of the society may as well espouse the unjust
views of the major, as the rightful interests of the minor party,
and may possibly be turned against both parties. The second
method will be exemplified in the federal republic of the United
States. Whilst all authority in it will be derived from and
dependent on the society, the society itself will be broken
into so many parts, interests, and classes of citizens, that
the rights of individuals, or of the minority, will be in little
danger from interested combinations of the majority. In 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 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 be little doubted that if the State
of Rhode Island was separated from the Confederacy and left
to itself, the insecurity of rights under the popular form of
government within such narrow limits would be displayed by such
reiterated oppressions of factious majorities that some power
altogether independent of the people would soon be called for
by the voice of the very factions whose misrule had proved the
necessity of it. In the extended republic of the United States,
and among the great variety of interests, parties, and sects
which it embraces, a coalition of a majority of the whole society
could seldom take place on any other principles than those of
justice and the general good; whilst there being thus less danger
to a minor from the will of a major party, there must be less
pretext, also, to provide for the security of the former, by
introducing into the government a will not dependent on the
latter, or, in other words, a will independent of the society
itself. It is no less certain than it is important, notwithstanding
the contrary opinions which have been entertained, that the
larger the society, provided it lie within a practical sphere,
the more duly capable it will be of self-government. And happily
for the REPUBLICAN CAUSE, the practicable sphere may be carried
to a very great extent, by a judicious modification and mixture
of the FEDERAL PRINCIPLE.
PUBLIUS.
