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Federalist
No. 51
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.
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Author: Alexander Hamilton or James Madison
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, 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; 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 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 gradnally
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. |
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