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The Particular Structure of the New
Government and the Distribution of Power Among Its Different Parts
From the New York Packet.
Friday, February 1, 1788.
JAMES MADISON
To the People of the State of New York:
HAVING reviewed the general form of the proposed government
and the general mass of power allotted to it, I proceed to examine the particular
structure of this government, and the distribution of this mass of power among its
constituent parts.
One of the principal objections inculcated by the more
respectable adversaries to the Constitution, is its supposed violation of the political
maxim, that the legislative, executive, and judiciary departments ought to be separate and
distinct. In the structure of the federal government, no regard, it is said, seems to have
been paid to this essential precaution in favor of liberty. The several departments of
power are distributed and blended in such a manner as at once to destroy all symmetry and
beauty of form, and to expose some of the essential parts of the edifice to the danger of
being crushed by the disproportionate weight of other parts.
No political truth is certainly of greater intrinsic value,
or is stamped with the authority of more enlightened patrons of liberty, than that on
which the objection is founded. The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary,
selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were
the federal Constitution, therefore, really chargeable with the accumulation of power, or
with a mixture of powers, having a dangerous tendency to such an accumulation, no further
arguments would be necessary to inspire a universal reprobation of the system. I persuade
myself, however, that it will be made apparent to every one, that the charge cannot be
supported, and that the maxim on which it relies has been totally misconceived and
misapplied. In order to form correct ideas on this important subject, it will be proper to
investigate the sense in which the preservation of liberty requires that the three great
departments of power should be separate and distinct.
The oracle who is always consulted and cited on this subject
is the celebrated Montesquieu. If he be not the author of this invaluable precept in the
science of politics, he has the merit at least of displaying and recommending it most
effectually to the attention of mankind. . . .
The British Constitution was to Montesquieu what Homer has
been to the didactic writers on epic poetry. As the latter have considered the work of the
immortal bard as the perfect model from which the principles and rules of the epic art
were to be drawn, and by which all similar works were to be judged, so this great
political critic appears to have viewed the Constitution of England as the standard, or to
use his own expression, as the mirror of political liberty; and to have delivered, in the
form of elementary truths, the several characteristic principles of that particular
system. That we may be sure, then, not to mistake his meaning in this case, let us recur
to the source from which the maxim was drawn.
From . . . facts, by which Montesquieu was guided, it
may clearly be inferred that, in saying "There can be no liberty where the
legislative and executive powers are united in the same person, or body of
magistrates," or, "if the power of judging be not separated from the legislative
and executive powers," he did not mean that these departments ought to have no
PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning . . . can
amount to no more than this, that where the WHOLE power of one department is exercised by
the same hands which possess the WHOLE power of another department, the fundamental
principles of a free constitution are subverted. . . .
If we look into the constitutions of the several States, we
find that, notwithstanding the emphatical and, in some instances, the unqualified terms in
which this axiom has been laid down, there is not a single instance in which the several
departments of power have been kept absolutely separate and distinct. . . .
The constitution of Massachusetts has observed a sufficient
though less pointed caution, in expressing this fundamental article of liberty. It
declares "that the legislative department shall never exercise the executive and
judicial powers, or either of them; the executive shall never exercise the legislative and
judicial powers, or either of them; the judicial shall never exercise the legislative and
executive powers, or either of them." This declaration corresponds precisely with the
doctrine of Montesquieu . . . It goes no farther than to prohibit any one of the entire
departments from exercising the powers of another department. In the very Constitution to
which it is prefixed, a partial mixture of powers has been admitted. . . .
PUBLIUS.
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.
JAMES MADISON
To the People of the State of New York:
. . . 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. . . .
PUBLIUS.
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.
ALEXANDER HAMILTON or JAMES 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. . . .
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? . . .
PUBLIUS. |