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.
No. XLIX.
Method of Guarding Against the Encroachments of Any One Department of
Government by Appealing to the People Through a Convention
From the New York Packet. Tuesday, February 5, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
The author of the “Notes on the State of Virginia,” quoted in the last
paper, has subjoined to that valuable work the draught of a
constitution, which had been prepared in order to be laid before a
convention, expected to be called in 1783, by the legislature, for the
establishment of a constitution for that commonwealth. The plan, like
every thing from the same pen, marks a turn of thinking, original,
comprehensive, and accurate; and is the more worthy of attention as it
equally displays a fervent attachment to republican government and an
enlightened view of the dangerous propensities against which it ought
to be guarded.
One of the precautions which he proposes, and on which he appears
ultimately to rely as a palladium to the weaker departments of power
against the invasions of the stronger, is perhaps altogether his own,
and as it immediately relates to the subject of our present inquiry,
ought not to be overlooked. His proposition is, “that whenever any two
of the three branches of government shall concur in opinion, each by
the voices of two thirds of their whole number, that a convention is
necessary for altering the constitution, or CORRECTING BREACHES OF IT,
a convention shall be called for the purpose. “As the people are the
only legitimate fountain of power, and it is from them that the
constitutional charter, under which the several branches of government
hold their power, is derived, it seems strictly consonant to the
republican theory, to recur to the same original authority, not only
whenever it may be necessary to enlarge, diminish, or new-model the
powers of the government, but also whenever any one of the departments
may commit encroachments on the chartered authorities of the others.
The several departments being perfectly co-ordinate by the terms of
their common commission, none of them, it is evident, can pretend to an
exclusive or superior right of settling the boundaries between their
respective powers; and how are the encroachments of the stronger to be
prevented, or the wrongs of the weaker to be redressed, without an
appeal to the people themselves, who, as the grantors of the
commissions, can alone declare its true meaning, and enforce its
observance? There is certainly great force in this reasoning, and it
must be allowed to prove that a constitutional road to the decision of
the people ought to be marked out and kept open, for certain great and
extraordinary occasions. But there appear to be insuperable objections
against the proposed recurrence to the people, as a provision in all
cases for keeping the several departments of power within their
constitutional limits. In the first place, the provision does not reach
the case of a combination of two of the departments against the third.
If the legislative authority, which possesses so many means of
operating on the motives of the other departments, should be able to
gain to its interest either of the others, or even one third of its
members, the remaining department could derive no advantage from its
remedial provision. I do not dwell, however, on this objection, because
it may be thought to be rather against the modification of the
principle, than against the principle itself. In the next place, it may
be considered as an objection inherent in the principle, that as every
appeal to the people would carry an implication of some defect in the
government, frequent appeals would, in a great measure, deprive the
government of that veneration which time bestows on every thing, and
without which perhaps the wisest and freest governments would not
possess the requisite stability. If it be true that all governments
rest on opinion, it is no less true that the strength of opinion in
each individual, and its practical influence on his conduct, depend
much on the number which he supposes to have entertained the same
opinion. The reason of man, like man himself, is timid and cautious
when left alone, and acquires firmness and confidence in proportion to
the number with which it is associated. When the examples which fortify
opinion are ANCIENT as well as NUMEROUS, they are known to have a
double effect. In a nation of philosophers, this consideration ought to
be disregarded. A reverence for the laws would be sufficiently
inculcated by the voice of an enlightened reason. But a nation of
philosophers is as little to be expected as the philosophical race of
kings wished for by Plato. And in every other nation, the most rational
government will not find it a superfluous advantage to have the
prejudices of the community on its side. The danger of disturbing the
public tranquillity by interesting too strongly the public passions, is
a still more serious objection against a frequent reference of
constitutional questions to the decision of the whole society.
Notwithstanding the success which has attended the revisions of our
established forms of government, and which does so much honor to the
virtue and intelligence of the people of America, it must be confessed
that the experiments are of too ticklish a nature to be unnecessarily
multiplied. We are to recollect that all the existing constitutions
were formed in the midst of a danger which repressed the passions most
unfriendly to order and concord; of an enthusiastic confidence of the
people in their patriotic leaders, which stifled the ordinary diversity
of opinions on great national questions; of a universal ardor for new
and opposite forms, produced by a universal resentment and indignation
against the ancient government; and whilst no spirit of party connected
with the changes to be made, or the abuses to be reformed, could mingle
its leaven in the operation. The future situations in which we must
expect to be usually placed, do not present any equivalent security
against the danger which is apprehended. But the greatest objection of
all is, that the decisions which would probably result from such
appeals would not answer the purpose of maintaining the constitutional
equilibrium of the government. We have seen that the tendency of
republican governments is to an aggrandizement of the legislative at
the expense of the other departments. The appeals to the people,
therefore, would usually be made by the executive and judiciary
departments. But whether made by one side or the other, would each side
enjoy equal advantages on the trial? Let us view their different
situations. The members of the executive and judiciary departments are
few in number, and can be personally known to a small part only of the
people. The latter, by the mode of their appointment, as well as by the
nature and permanency of it, are too far removed from the people to
share much in their prepossessions. The former are generally the
objects of jealousy, and their administration is always liable to be
discolored and rendered unpopular. The members of the legislative
department, on the other hand, are numberous. They are distributed and
dwell among the people at large. Their connections of blood, of
friendship, and of acquaintance embrace a great proportion of the most
influential part of the society. The nature of their public trust
implies a personal influence among the people, and that they are more
immediately the confidential guardians of the rights and liberties of
the people. With these advantages, it can hardly be supposed that the
adverse party would have an equal chance for a favorable issue. But the
legislative party would not only be able to plead their cause most
successfully with the people. They would probably be constituted
themselves the judges.
The same influence which had gained them an election into the
legislature, would gain them a seat in the convention. If this should
not be the case with all, it would probably be the case with many, and
pretty certainly with those leading characters, on whom every thing
depends in such bodies. The convention, in short, would be composed
chiefly of men who had been, who actually were, or who expected to be,
members of the department whose conduct was arraigned. They would
consequently be parties to the very question to be decided by them. It
might, however, sometimes happen, that appeals would be made under
circumstances less adverse to the executive and judiciary departments.
The usurpations of the legislature might be so flagrant and so sudden,
as to admit of no specious coloring. A strong party among themselves
might take side with the other branches. The executive power might be
in the hands of a peculiar favorite of the people. In such a posture of
things, the public decision might be less swayed by prepossessions in
favor of the legislative party. But still it could never be expected to
turn on the true merits of the question. It would inevitably be
connected with the spirit of pre-existing parties, or of parties
springing out of the question itself. It would be connected with
persons of distinguished character and extensive influence in the
community. It would be pronounced by the very men who had been agents
in, or opponents of, the measures to which the decision would relate.
The PASSIONS, therefore, not the REASON, of the public would sit in
judgment. But it is the reason, alone, of the public, that ought to
control and regulate the government. The passions ought to be
controlled and regulated by the government.
We found in the last paper, that mere declarations in the written
constitution are not sufficient to restrain the several departments
within their legal rights. It appears in this, that occasional appeals
to the people would be neither a proper nor an effectual provision for
that purpose. How far the provisions of a different nature contained in
the plan above quoted might be adequate, I do not examine. Some of them
are unquestionably founded on sound political principles, and all of
them are framed with singular ingenuity and precision.
PUBLIUS.
THE FEDERALIST.
No. L.
Periodical Appeals to the People Considered
From the New York Packet. Tuesday, February 5, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
It may be contended, perhaps, that instead of OCCASIONAL appeals to the
people, which are liable to the objections urged against them,
PERIODICAL appeals are the proper and adequate means of PREVENTING AND
CORRECTING INFRACTIONS OF THE CONSTITUTION. It will be attended to,
that in the examination of these expedients, I confine myself to their
aptitude for ENFORCING the Constitution, by keeping the several
departments of power within their due bounds, without particularly
considering them as provisions for ALTERING the Constitution itself. In
the first view, appeals to the people at fixed periods appear to be
nearly as ineligible as appeals on particular occasions as they emerge.
If the periods be separated by short intervals, the measures to be
reviewed and rectified will have been of recent date, and will be
connected with all the circumstances which tend to vitiate and pervert
the result of occasional revisions. If the periods be distant from each
other, the same remark will be applicable to all recent measures; and
in proportion as the remoteness of the others may favor a dispassionate
review of them, this advantage is inseparable from inconveniences which
seem to counterbalance it. In the first place, a distant prospect of
public censure would be a very feeble restraint on power from those
excesses to which it might be urged by the force of present motives. Is
it to be imagined that a legislative assembly, consisting of a hundred
or two hundred members, eagerly bent on some favorite object, and
breaking through the restraints of the Constitution in pursuit of it,
would be arrested in their career, by considerations drawn from a
censorial revision of their conduct at the future distance of ten,
fifteen, or twenty years? In the next place, the abuses would often
have completed their mischievous effects before the remedial provision
would be applied. And in the last place, where this might not be the
case, they would be of long standing, would have taken deep root, and
would not easily be extirpated. The scheme of revising the
constitution, in order to correct recent breaches of it, as well as for
other purposes, has been actually tried in one of the States. One of
the objects of the Council of Censors which met in Pennsylvania in 1783
and 1784, was, as we have seen, to inquire, “whether the constitution
had been violated, and whether the legislative and executive
departments had encroached upon each other. “ This important and novel
experiment in politics merits, in several points of view, very
particular attention. In some of them it may, perhaps, as a single
experiment, made under circumstances somewhat peculiar, be thought to
be not absolutely conclusive. But as applied to the case under
consideration, it involves some facts, which I venture to remark, as a
complete and satisfactory illustration of the reasoning which I have
employed. First. It appears, from the names of the gentlemen who
composed the council, that some, at least, of its most active members
had also been active and leading characters in the parties which
pre-existed in the State.
Secondly. It appears that the same active and leading members of the
council had been active and influential members of the legislative and
executive branches, within the period to be reviewed; and even patrons
or opponents of the very measures to be thus brought to the test of the
constitution. Two of the members had been vice-presidents of the State,
and several other members of the executive council, within the seven
preceding years. One of them had been speaker, and a number of others
distinguished members, of the legislative assembly within the same
period.
Thirdly. Every page of their proceedings witnesses the effect of all
these circumstances on the temper of their deliberations. Throughout
the continuance of the council, it was split into two fixed and violent
parties. The fact is acknowledged and lamented by themselves. Had this
not been the case, the face of their proceedings exhibits a proof
equally satisfactory. In all questions, however unimportant in
themselves, or unconnected with each other, the same names stand
invariably contrasted on the opposite columns. Every unbiased observer
may infer, without danger of mistake, and at the same time without
meaning to reflect on either party, or any individuals of either party,
that, unfortunately, PASSION, not REASON, must have presided over their
decisions. When men exercise their reason coolly and freely on a
variety of distinct questions, they inevitably fall into different
opinions on some of them. When they are governed by a common passion,
their opinions, if they are so to be called, will be the same.
Fourthly. It is at least problematical, whether the decisions of this
body do not, in several instances, misconstrue the limits prescribed
for the legislative and executive departments, instead of reducing and
limiting them within their constitutional places.
Fifthly. I have never understood that the decisions of the council on
constitutional questions, whether rightly or erroneously formed, have
had any effect in varying the practice founded on legislative
constructions. It even appears, if I mistake not, that in one instance
the contemporary legislature denied the constructions of the council,
and actually prevailed in the contest. This censorial body, therefore,
proves at the same time, by its researches, the existence of the
disease, and by its example, the inefficacy of the remedy. This
conclusion cannot be invalidated by alleging that the State in which
the experiment was made was at that crisis, and had been for a long
time before, violently heated and distracted by the rage of party. Is
it to be presumed, that at any future septennial epoch the same State
will be free from parties? Is it to be presumed that any other State,
at the same or any other given period, will be exempt from them? Such
an event ought to be neither presumed nor desired; because an
extinction of parties necessarily implies either a universal alarm for
the public safety, or an absolute extinction of liberty. Were the
precaution taken of excluding from the assemblies elected by the
people, to revise the preceding administration of the government, all
persons who should have been concerned with the government within the
given period, the difficulties would not be obviated. The important
task would probably devolve on men, who, with inferior capacities,
would in other respects be little better qualified. Although they might
not have been personally concerned in the administration, and therefore
not immediately agents in the measures to be examined, they would
probably have been involved in the parties connected with these
measures, and have been elected under their auspices.
PUBLIUS.
THE FEDERALIST.
No. LI.
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: