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 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.



PUBLIUS.









THE FEDERALIST.