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 defence 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 powers, 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-defence. 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 defence 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 proportionally
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.
Signed "PUBLIUS"
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