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.
No. LII.
The House of Representatives
From the New York Packet. Friday, February 8, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
From the more general inquiries pursued in the four last papers, I pass
on to a more particular examination of the several parts of the
government. I shall begin with the House of Representatives. The first
view to be taken of this part of the government relates to the
qualifications of the electors and the elected. Those of the former are
to be the same with those of the electors of the most numerous branch
of the State legislatures.
The definition of the right of suffrage is very justly regarded as a
fundamental article of republican government. It was incumbent on the
convention, therefore, to define and establish this right in the
Constitution. To have left it open for the occasional regulation of the
Congress, would have been improper for the reason just mentioned. To
have submitted it to the legislative discretion of the States, would
have been improper for the same reason; and for the additional reason
that it would have rendered too dependent on the State governments that
branch of the federal government which ought to be dependent on the
people alone. To have reduced the different qualifications in the
different States to one uniform rule, would probably have been as
dissatisfactory to some of the States as it would have been difficult
to the convention. The provision made by the convention appears,
therefore, to be the best that lay within their option.
It must be satisfactory to every State, because it is conformable to
the standard already established, or which may be established, by the
State itself. It will be safe to the United States, because, being
fixed by the State constitutions, it is not alterable by the State
governments, and it cannot be feared that the people of the States will
alter this part of their constitutions in such a manner as to abridge
the rights secured to them by the federal Constitution. The
qualifications of the elected, being less carefully and properly
defined by the State constitutions, and being at the same time more
susceptible of uniformity, have been very properly considered and
regulated by the convention. A representative of the United States must
be of the age of twenty-five years; must have been seven years a
citizen of the United States; must, at the time of his election, be an
inhabitant of the State he is to represent; and, during the time of his
service, must be in no office under the United States. Under these
reasonable limitations, the door of this part of the federal government
is open to merit of every description, whether native or adoptive,
whether young or old, and without regard to poverty or wealth, or to
any particular profession of religious faith. The term for which the
representatives are to be elected falls under a second view which may
be taken of this branch. In order to decide on the propriety of this
article, two questions must be considered: first, whether biennial
elections will, in this case, be safe; secondly, whether they be
necessary or useful. First. As it is essential to liberty that the
government in general should have a common interest with the people, so
it is particularly essential that the branch of it under consideration
should have an immediate dependence on, and an intimate sympathy with,
the people. Frequent elections are unquestionably the only policy by
which this dependence and sympathy can be effectually secured. But what
particular degree of frequency may be absolutely necessary for the
purpose, does not appear to be susceptible of any precise calculation,
and must depend on a variety of circumstances with which it may be
connected. Let us consult experience, the guide that ought always to be
followed whenever it can be found. The scheme of representation, as a
substitute for a meeting of the citizens in person, being at most but
very imperfectly known to ancient polity, it is in more modern times
only that we are to expect instructive examples. And even here, in
order to avoid a research too vague and diffusive, it will be proper to
confine ourselves to the few examples which are best known, and which
bear the greatest analogy to our particular case. The first to which
this character ought to be applied, is the House of Commons in Great
Britain. The history of this branch of the English Constitution,
anterior to the date of Magna Charta, is too obscure to yield
instruction. The very existence of it has been made a question among
political antiquaries. The earliest records of subsequent date prove
that parliaments were to SIT only every year; not that they were to be
ELECTED every year. And even these annual sessions were left so much at
the discretion of the monarch, that, under various pretexts, very long
and dangerous intermissions were often contrived by royal ambition. To
remedy this grievance, it was provided by a statute in the reign of
Charles II. , that the intermissions should not be protracted beyond a
period of three years. On the accession of William III., when a
revolution took place in the government, the subject was still more
seriously resumed, and it was declared to be among the fundamental
rights of the people that parliaments ought to be held FREQUENTLY. By
another statute, which passed a few years later in the same reign, the
term “frequently,” which had alluded to the triennial period settled in
the time of Charles II., is reduced to a precise meaning, it being
expressly enacted that a new parliament shall be called within three
years after the termination of the former. The last change, from three
to seven years, is well known to have been introduced pretty early in
the present century, under on alarm for the Hanoverian succession. From
these facts it appears that the greatest frequency of elections which
has been deemed necessary in that kingdom, for binding the
representatives to their constituents, does not exceed a triennial
return of them. And if we may argue from the degree of liberty retained
even under septennial elections, and all the other vicious ingredients
in the parliamentary constitution, we cannot doubt that a reduction of
the period from seven to three years, with the other necessary reforms,
would so far extend the influence of the people over their
representatives as to satisfy us that biennial elections, under the
federal system, cannot possibly be dangerous to the requisite
dependence of the House of Representatives on their constituents.
Elections in Ireland, till of late, were regulated entirely by the
discretion of the crown, and were seldom repeated, except on the
accession of a new prince, or some other contingent event. The
parliament which commenced with George II. was continued throughout his
whole reign, a period of about thirty-five years. The only dependence
of the representatives on the people consisted in the right of the
latter to supply occasional vacancies by the election of new members,
and in the chance of some event which might produce a general new
election.
The ability also of the Irish parliament to maintain the rights of
their constituents, so far as the disposition might exist, was
extremely shackled by the control of the crown over the subjects of
their deliberation. Of late these shackles, if I mistake not, have been
broken; and octennial parliaments have besides been established. What
effect may be produced by this partial reform, must be left to further
experience. The example of Ireland, from this view of it, can throw but
little light on the subject. As far as we can draw any conclusion from
it, it must be that if the people of that country have been able under
all these disadvantages to retain any liberty whatever, the advantage
of biennial elections would secure to them every degree of liberty,
which might depend on a due connection between their representatives
and themselves. Let us bring our inquiries nearer home. The example of
these States, when British colonies, claims particular attention, at
the same time that it is so well known as to require little to be said
on it. The principle of representation, in one branch of the
legislature at least, was established in all of them. But the periods
of election were different. They varied from one to seven years. Have
we any reason to infer, from the spirit and conduct of the
representatives of the people, prior to the Revolution, that biennial
elections would have been dangerous to the public liberties? The spirit
which everywhere displayed itself at the commencement of the struggle,
and which vanquished the obstacles to independence, is the best of
proofs that a sufficient portion of liberty had been everywhere enjoyed
to inspire both a sense of its worth and a zeal for its proper
enlargement This remark holds good, as well with regard to the then
colonies whose elections were least frequent, as to those whose
elections were most frequent Virginia was the colony which stood first
in resisting the parliamentary usurpations of Great Britain; it was the
first also in espousing, by public act, the resolution of independence.
In Virginia, nevertheless, if I have not been misinformed, elections
under the former government were septennial. This particular example is
brought into view, not as a proof of any peculiar merit, for the
priority in those instances was probably accidental; and still less of
any advantage in SEPTENNIAL elections, for when compared with a greater
frequency they are inadmissible; but merely as a proof, and I conceive
it to be a very substantial proof, that the liberties of the people can
be in no danger from BIENNIAL elections. The conclusion resulting from
these examples will be not a little strengthened by recollecting three
circumstances. The first is, that the federal legislature will possess
a part only of that supreme legislative authority which is vested
completely in the British Parliament; and which, with a few exceptions,
was exercised by the colonial assemblies and the Irish legislature. It
is a received and well-founded maxim, that where no other circumstances
affect the case, the greater the power is, the shorter ought to be its
duration; and, conversely, the smaller the power, the more safely may
its duration be protracted. In the second place, it has, on another
occasion, been shown that the federal legislature will not only be
restrained by its dependence on its people, as other legislative bodies
are, but that it will be, moreover, watched and controlled by the
several collateral legislatures, which other legislative bodies are
not. And in the third place, no comparison can be made between the
means that will be possessed by the more permanent branches of the
federal government for seducing, if they should be disposed to seduce,
the House of Representatives from their duty to the people, and the
means of influence over the popular branch possessed by the other
branches of the government above cited. With less power, therefore, to
abuse, the federal representatives can be less tempted on one side, and
will be doubly watched on the other.
PUBLIUS.
THE FEDERALIST.
No. LIII.
The Same Subject Continued (The House of Representatives)
From the New York Packet. Tuesday, February 12, 1788.
HAMILTON OR MADISON
To the People of the State of New York: