1787 Federalist 48 · Founding Made Plain

11787 Federalist No. 48

2These Departments Should Not Be So Far

3Separated as to Have No Constitutional

4Control Over Each Other

5From the New York Packet.

6Friday, February 1, 1788.

7MADISON

8To the People of the State of New York:

9IT WAS shown in the last paper

10 that the political apothegm there examined

11 does not require

12 that the legislative, executive, and judiciary

13 departments should be wholly unconnected

14 with each other.

15I shall undertake, in the next place,

16 to show that unless these departments

17 be so far connected and blended

18 as to give to each a constitutional control

19 over the others,

20 the degree of separation which the maxim requires,

21 as essential to a free government,

22 can never in practice be duly maintained.

23It is agreed on all sides,

24 that the powers properly belonging

25 to one of the departments

26 ought not to be directly

27 and completely administered

28 by either of the other departments.

29It is equally evident,

30 that none of them ought to possess,

31 directly or indirectly,

32 an overruling influence over the others,

33 in the administration of their respective powers.

34It will not be denied,

35 that power is of an encroaching nature,

36 and that it ought to be effectually restrained

37 from passing the limits assigned to it.

38After discriminating, therefore, in theory,

39 the several classes of power,

40 as they may in their nature be

41 legislative, executive, or judiciary,

42 the next and most difficult task

43 is to provide some practical security for each,

44 against the invasion of the others.

45What this security ought to be,

46 is the great problem to be solved.

47Will it be sufficient to mark, with precision,

48 the boundaries of these departments,

49 in the constitution of the government,

50 and to trust to these parchment barriers

51 against the encroaching spirit of power?

52This is the security which appears

53 to have been principally relied on

54 by the compilers of most

55 of the American constitutions.

56But experience assures us,

57 that the efficacy of the provision

58 has been greatly overrated;

59 and that some more adequate defense

60 is indispensably necessary for the more feeble,

61 against the more powerful,

62 members of the government.

63The legislative department is everywhere

64 extending the sphere of its activity,

65 and drawing all power into its impetuous vortex.

66The founders of our republics have so much merit

67 for the wisdom which they have displayed,

68 that no task can be less pleasing

69 than that of pointing out the errors

70 into which they have fallen.

71A respect for truth, however, obliges us to remark,

72 that they seem never for a moment

73 to have turned their eyes

74 from the danger to liberty

75 from the overgrown and all-grasping prerogative

76 of an hereditary magistrate,

77 supported and fortified

78 by an hereditary branch

79 of the legislative authority.

80They seem never to have recollected

81 the danger from legislative usurpations,

82 which, by assembling all power in the same hands,

83 must lead to the same tyranny

84 as is threatened by executive usurpations.

85In a government where numerous and extensive prerogatives

86 are placed in the hands of an hereditary monarch,

87 the executive department is very justly regarded

88 as the source of danger,

89 and watched with all the jealousy

90 which a zeal for liberty ought to inspire.

91In a democracy,

92 where a multitude of people exercise in person

93 the legislative functions,

94 and are continually exposed,

95 by their incapacity for regular deliberation

96 and concerted measures,

97 to the ambitious intrigues

98 of their executive magistrates,

99 tyranny may well be apprehended,

100 on some favorable emergency,

101 to start up in the same quarter.

102But in a representative republic,

103 where the executive magistracy is carefully limited;

104 both in the extent and the duration of its power;

105 and where the legislative power is exercised

106 by an assembly,

107 which is inspired,

108 by a supposed influence over the people,

109 with an intrepid confidence in its own strength;

110 which is sufficiently numerous

111 to feel all the passions which actuate a multitude,

112 yet not so numerous as to be incapable

113 of pursuing the objects of its passions,

114 by means which reason prescribes;

115 it is against the enterprising ambition

116 of this department

117 that the people ought to indulge all their jealousy

118 and exhaust all their precautions.

119The legislative department derives a superiority

120 in our governments from other circumstances.

121Its constitutional powers being at once more extensive,

122 and less susceptible of precise limits,

123 it can, with the greater facility, mask,

124 under complicated and indirect measures,

125 the encroachments which it makes

126 on the co-ordinate departments.

127It is not unfrequently a question of real nicety

128 in legislative bodies,

129 whether the operation of a particular measure will,

130 or will not,

131 extend beyond the legislative sphere.

132On the other side,

133 the executive power being restrained

134 within a narrower compass,

135 and being more simple in its nature,

136 and the judiciary being described

137 by landmarks still less uncertain,

138 projects of usurpation by either of these departments

139 would immediately betray and defeat themselves.

140Nor is this all:

141 as the legislative department alone

142 has access to the pockets of the people,

143 and has in some constitutions full discretion,

144 and in all a prevailing influence,

145 over the pecuniary rewards

146 of those who fill the other departments,

147 a dependence is thus created in the latter,

148 which gives still greater facility

149 to encroachments of the former.

150I have appealed to our own experience

151 for the truth of what I advance on this subject.

152Were it necessary to verify this experience

153 by particular proofs,

154 they might be multiplied without end.

155I might find a witness in every citizen

156 who has shared in, or been attentive to,

157 the course of public administrations.

158I might collect vouchers in abundance

159 from the records and archives

160 of every State in the Union.

161But as a more concise,

162 and at the same time equally satisfactory, evidence,

163 I will refer to the example of two States,

164 attested by two unexceptionable authorities.

165The first example is that of Virginia,

166 a State which, as we have seen,

167 has expressly declared in its constitution,

168 that the three great departments

169 ought not to be intermixed.

170The authority in support of it is Mr. Jefferson,

171 who, besides his other advantages

172 for remarking the operation of the government,

173 was himself the chief magistrate of it.

174In order to convey fully the ideas

175 with which his experience had impressed him

176 on this subject,

177 it will be necessary to quote a passage of some length

178 from his very interesting

179 "Notes on the State of Virginia," p. 195.

180"All the powers of government,

181 legislative, executive, and judiciary,

182 result to the legislative body.

183The concentrating these in the same hands,

184 is precisely the definition of despotic government.

185It will be no alleviation,

186 that these powers will be exercised

187 by a plurality of hands,

188 and not by a single one.

189One hundred and seventy-three despots

190 would surely be as oppressive as one.

191Let those who doubt it,

192 turn their eyes on the republic of Venice.

193As little will it avail us,

194 that they are chosen by ourselves.

195An ELECTIVE DESPOTISM

196 was not the government we fought for;

197 but one which should not only be founded

198 on free principles,

199 but in which the powers of government

200 should be so divided and balanced

201 among several bodies of magistracy,

202 as that no one could transcend their legal limits,

203 without being effectually checked and restrained

204 by the others.

205For this reason,

206 that convention which passed

207 the ordinance of government,

208 laid its foundation on this basis,

209 that the legislative, executive, and judiciary

210 departments should be separate and distinct,

211 so that no person should exercise the powers

212 of more than one of them at the same time.

213BUT NO BARRIER WAS PROVIDED

214 BETWEEN THESE SEVERAL POWERS.

215The judiciary and the executive members

216 were left dependent on the legislative

217 for their subsistence in office,

218 and some of them for their continuance in it.

219If, therefore, the legislature assumes

220 executive and judiciary powers,

221 no opposition is likely to be made;

222 nor, if made, can be effectual;

223 because in that case they may put their proceedings

224 into the form of acts of Assembly,

225 which will render them obligatory

226 on the other branches.

227They have accordingly,

228 IN MANY instances, DECIDED RIGHTS

229 which should have been left

230 to JUDICIARY CONTROVERSY,

231 and THE DIRECTION OF THE EXECUTIVE,

232 DURING THE WHOLE TIME OF THEIR SESSION,

233 IS BECOMING HABITUAL AND FAMILIAR."

234The other State which I shall take for an example

235 is Pennsylvania;

236 and the other authority, the Council of Censors,

237 which assembled in the years 1783 and 1784.

238A part of the duty of this body,

239 as marked out by the constitution, was

240 "to inquire whether the constitution

241 had been preserved inviolate in every part;

242 and whether the legislative and executive branches

243 of government had performed their duty

244 as guardians of the people,

245 or assumed to themselves,

246 or exercised, other or greater powers

247 than they are entitled to by the constitution."

248In the execution of this trust,

249 the council were necessarily led to a comparison

250 of both the legislative and executive proceedings,

251 with the constitutional powers

252 of these departments;

253 and from the facts enumerated,

254 and to the truth of most of which

255 both sides in the council subscribed,

256 it appears that the constitution had been flagrantly

257 violated by the legislature

258 in a variety of important instances.

259A great number of laws had been passed,

260 violating, without any apparent necessity,

261 the rule requiring that all bills

262 of a public nature

263 shall be previously printed

264 for the consideration of the people;

265 although this is one of the precautions

266 chiefly relied on by the constitution

267 against improper acts of legislature.

268The constitutional trial by jury had been violated,

269 and powers assumed

270 which had not been delegated by the constitution.

271Executive powers had been usurped.

272The salaries of the judges,

273 which the constitution expressly requires to be fixed,

274 had been occasionally varied;

275 and cases belonging to the judiciary department

276 frequently drawn within legislative cognizance

277 and determination.

278Those who wish to see the several particulars

279 falling under each of these heads,

280 may consult the journals of the council,

281 which are in print.

282Some of them, it will be found,

283 may be imputable to peculiar circumstances

284 connected with the war;

285 but the greater part of them may be considered

286 as the spontaneous shoots

287 of an ill-constituted government.

288It appears, also,

289 that the executive department had not been innocent

290 of frequent breaches of the constitution.

291There are three observations, however,

292 which ought to be made on this head:

293FIRST, a great proportion of the instances

294 were either immediately produced

295 by the necessities of the war,

296 or recommended by Congress

297 or the commander-in-chief;

298SECONDLY, in most of the other instances,

299 they conformed either to the declared

300 or the known sentiments

301 of the legislative department;

302THIRDLY, the executive department of Pennsylvania

303 is distinguished from that of the other States

304 by the number of members composing it.

305In this respect,

306 it has as much affinity to a legislative assembly

307 as to an executive council.

308And being at once exempt from the restraint

309 of an individual responsibility

310 for the acts of the body,

311 and deriving confidence

312 from mutual example and joint influence,

313 unauthorized measures would, of course,

314 be more freely hazarded,

315 than where the executive department

316 is administered by a single hand,

317 or by a few hands.

318The conclusion which I am warranted in drawing

319 from these observations is,

320 that a mere demarcation on parchment

321 of the constitutional limits

322 of the several departments,

323 is not a sufficient guard

324 against those encroachments

325 which lead to a tyrannical concentration

326 of all the powers of government

327 in the same hands.

328PUBLIUS.