IT 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.
It 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.
Will 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 defence 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 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 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 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 coordinate 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: 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 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 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. "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. For 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 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, 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 the 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.
Those 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, 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; secondly, in most of the other instances, they
conformed either to the declared or the known sentiments of the
legislative department; thirdly, 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 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.
Signed "PUBLIUS"
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