1787 Federalist 51 · Founding Made Plain

11787 Federalist No. 51

2The Structure of the Government

3Must Furnish the Proper Checks

4and Balances Between

5the Different Departments

6From the New York Packet.

7Friday, February 8, 1788.

8HAMILTON OR MADISON

9To the People of the State of New York:

10TO WHAT expedient, then, shall we finally resort,

11 for maintaining in practice

12 the necessary partition of power

13 among the several departments,

14 as laid down in the Constitution?

15The only answer that can be given is,

16 that as all these exterior provisions

17 are found to be inadequate,

18 the defect must be supplied,

19 by so contriving the interior structure

20 of the government

21 as that its several constituent parts may,

22 by their mutual relations,

23 be the means of keeping each other

24 in their proper places.

25Without presuming to undertake

26 a full development of this important idea,

27 I will hazard a few general observations,

28 which may perhaps place it in a clearer light,

29 and enable us to form a more correct judgment

30 of the principles and structure of the government

31 planned by the convention.

32In order to lay a due foundation

33 for that separate and distinct exercise

34 of the different powers of government,

35 which to a certain extent is admitted on all hands

36 to be essential to the preservation of liberty,

37 it is evident that each department

38 should have a will of its own;

39 and consequently should be so constituted

40 that the members of each

41 should have as little agency as possible

42 in the appointment of the members of the others.

43Were this principle rigorously adhered to,

44 it would require that all the appointments

45 for the supreme executive, legislative,

46 and judiciary magistracies

47 should be drawn from the same

48 fountain of authority,

49 the people,

50 through channels having no communication whatever

51 with one another.

52Perhaps such a plan of constructing

53 the several departments

54 would be less difficult in practice

55 than it may in contemplation appear.

56Some difficulties, however,

57 and some additional expense

58 would attend the execution of it.

59Some deviations, therefore, from the principle

60 must be admitted.

61In the constitution of the judiciary department

62 in particular,

63 it might be inexpedient to insist rigorously

64 on the principle:

65 first, because peculiar qualifications

66 being essential in the members,

67 the primary consideration ought to be

68 to select that mode of choice

69 which best secures these qualifications;

70 secondly, because the permanent tenure

71 by which the appointments are held

72 in that department,

73 must soon destroy all sense of dependence

74 on the authority conferring them.

75It is equally evident,

76 that the members of each department

77 should be as little dependent as possible

78 on those of the others,

79 for the emoluments annexed to their offices.

80Were the executive magistrate, or the judges,

81 not independent of the legislature in this particular,

82 their independence in every other

83 would be merely nominal.

84But the great security

85 against a gradual concentration of the several powers

86 in the same department,

87 consists in giving to those who administer

88 each department

89 the necessary constitutional means

90 and personal motives

91 to resist encroachments of the others.

92The provision for defense must in this,

93 as in all other cases,

94 be made commensurate to the danger of attack.

95Ambition must be made to counteract ambition.

96The interest of the man must be connected

97 with the constitutional rights of the place.

98It may be a reflection on human nature,

99 that such devices should be necessary

100 to control the abuses of government.

101But what is government itself,

102 but the greatest of all reflections on human nature?

103If men were angels, no government would be necessary.

104If angels were to govern men,

105 neither external nor internal controls

106 on government would be necessary.

107In framing a government

108 which is to be administered by men over men,

109 the great difficulty lies in this:

110 you must first enable the government

111 to control the governed;

112 and in the next place oblige it to control itself.

113A dependence on the people is, no doubt,

114 the primary control on the government;

115 but experience has taught mankind

116 the necessity of auxiliary precautions.

117This policy of supplying,

118 by opposite and rival interests,

119 the defect of better motives,

120 might be traced through the whole system

121 of human affairs, private as well as public.

122We see it particularly displayed

123 in all the subordinate distributions of power,

124 where the constant aim

125 is to divide and arrange the several offices

126 in such a manner as that each may be a check

127 on the other

128 that the private interest of every individual

129 may be a sentinel over the public rights.

130These inventions of prudence cannot be less requisite

131 in the distribution of the supreme powers of the State.

132But it is not possible to give to each department

133 an equal power of self-defense.

134In republican government,

135 the legislative authority necessarily predominates.

136The remedy for this inconveniency

137 is to divide the legislature into different branches;

138 and to render them,

139 by different modes of election

140 and different principles of action,

141 as little connected with each other

142 as the nature of their common functions

143 and their common dependence on the society

144 will admit.

145It may even be necessary

146 to guard against dangerous encroachments

147 by still further precautions.

148As the weight of the legislative authority

149 requires that it should be thus divided,

150 the weakness of the executive may require,

151 on the other hand,

152 that it should be fortified.

153An absolute negative on the legislature appears,

154 at first view,

155 to be the natural defense

156 with which the executive magistrate

157 should be armed.

158But perhaps it would be neither altogether safe

159 nor alone sufficient.

160On ordinary occasions it might not be exerted

161 with the requisite firmness,

162 and on extraordinary occasions

163 it might be perfidiously abused.

164May not this defect of an absolute negative

165 be supplied by some qualified connection

166 between this weaker department

167 and the weaker branch of the stronger department,

168 by which the latter may be led

169 to support the constitutional rights of the former,

170 without being too much detached

171 from the rights of its own department?

172If the principles on which these observations

173 are founded be just,

174 as I persuade myself they are,

175 and they be applied as a criterion

176 to the several State constitutions,

177 and to the federal Constitution

178 it will be found

179 that if the latter does not perfectly correspond

180 with them,

181 the former are infinitely less able

182 to bear such a test.

183There are, moreover, two considerations

184 particularly applicable

185 to the federal system of America,

186 which place that system

187 in a very interesting point of view.

188First. In a single republic,

189 all the power surrendered by the people

190 is submitted to the administration

191 of a single government;

192 and the usurpations are guarded against

193 by a division of the government

194 into distinct and separate departments.

195In the compound republic of America,

196 the power surrendered by the people

197 is first divided between two distinct governments,

198 and then the portion allotted to each

199 subdivided among distinct and separate departments.

200Hence a double security arises

201 to the rights of the people.

202The different governments will control each other,

203 at the same time that each

204 will be controlled by itself.

205Second. It is of great importance in a republic

206 not only to guard the society

207 against the oppression of its rulers,

208 but to guard one part of the society

209 against the injustice of the other part.

210Different interests necessarily exist

211 in different classes of citizens.

212If a majority be united by a common interest,

213 the rights of the minority will be insecure.

214There are but two methods of providing against this evil:

215 the one by creating a will in the community

216 independent of the majority

217 that is, of the society itself;

218 the other, by comprehending in the society

219 so many separate descriptions of citizens

220 as will render an unjust combination

221 of a majority of the whole very improbable,

222 if not impracticable.

223The first method prevails

224 in all governments possessing

225 an hereditary or self-appointed authority.

226This, at best, is but a precarious security;

227 because a power independent of the society

228 may as well espouse the unjust views of the major,

229 as the rightful interests of the minor party,

230 and may possibly be turned against both parties.

231The second method will be exemplified

232 in the federal republic of the United States.

233Whilst all authority in it

234 will be derived from and dependent on the society,

235 the society itself will be broken

236 into so many parts, interests,

237 and classes of citizens,

238 that the rights of individuals,

239 or of the minority,

240 will be in little danger

241 from interested combinations of the majority.

242In a free government

243 the security for civil rights

244 must be the same as that for religious rights.

245It consists in the one case

246 in the multiplicity of interests,

247 and in the other in the multiplicity of sects.

248The degree of security in both cases

249 will depend on the number of interests and sects;

250 and this may be presumed to depend

251 on the extent of country and number of people

252 comprehended under the same government.

253This view of the subject must particularly recommend

254 a proper federal system

255 to all the sincere and considerate friends

256 of republican government,

257 since it shows that in exact proportion

258 as the territory of the Union

259 may be formed into more

260 circumscribed Confederacies,

261 or States

262 oppressive combinations of a majority

263 will be facilitated:

264 the best security, under the republican forms,

265 for the rights of every class of citizens,

266 will be diminished:

267 and consequently the stability and independence

268 of some member of the government,

269 the only other security,

270 must be proportionately increased.

271Justice is the end of government.

272It is the end of civil society.

273It ever has been and ever will be pursued

274 until it be obtained,

275 or until liberty be lost in the pursuit.

276In a society under the forms of which

277 the stronger faction can readily unite

278 and oppress the weaker,

279 anarchy may as truly be said to reign

280 as in a state of nature,

281 where the weaker individual is not secured

282 against the violence of the stronger;

283 and as, in the latter state,

284 even the stronger individuals are prompted,

285 by the uncertainty of their condition,

286 to submit to a government

287 which may protect the weak as well as themselves;

288 so, in the former state,

289 will the more powerful factions or parties

290 be gradnally induced, by a like motive,

291 to wish for a government

292 which will protect all parties,

293 the weaker as well as the more powerful.

294It can be little doubted

295 that if the State of Rhode Island

296 was separated from the Confederacy

297 and left to itself,

298 the insecurity of rights

299 under the popular form of government

300 within such narrow limits

301 would be displayed

302 by such reiterated oppressions

303 of factious majorities

304 that some power altogether

305 independent of the people

306 would soon be called for

307 by the voice of the very factions

308 whose misrule had proved the necessity of it.

309In the extended republic of the United States,

310 and among the great variety of interests,

311 parties, and sects which it embraces,

312 a coalition of a majority of the whole society

313 could seldom take place

314 on any other principles

315 than those of justice and the general good;

316 whilst there being thus less danger to a minor

317 from the will of a major party,

318 there must be less pretext, also,

319 to provide for the security of the former,

320 by introducing into the government

321 a will not dependent on the latter,

322 or, in other words,

323 a will independent of the society itself.

324It is no less certain than it is important,

325 notwithstanding the contrary opinions

326 which have been entertained,

327 that the larger the society,

328 provided it lie within a practical sphere,

329 the more duly capable it will be

330 of self-government.

331And happily for the REPUBLICAN CAUSE,

332 the practicable sphere may be carried

333 to a very great extent,

334 by a judicious modification and mixture

335 of the FEDERAL PRINCIPLE.

336PUBLIUS.