These Departments Should Not Be So Far Separated as to Have No

Constitutional Control Over Each Other



From the New York Packet. Friday, February 1, 1788.



MADISON





To the People of the State of New York:



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 defense 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 co-ordinate 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 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.



PUBLIUS.









THE FEDERALIST.