DP Tool Club 8/CDASC08.ISO/VRAC/HISTDOCS.ZIP/FEDERAL.51

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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.

HAMILTON OR 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.