>FEDERALIST No. 51 (Hamilton or Madison)                       .



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 gthat 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 majoritygthat 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 gradnally 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.





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