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The Federalist, Number 51
The Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
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.