The Separation of Powers

Having reviewed the general form of the proposed government and the general mass of power assigned to it, I turn now to its particular structure and to how that power is divided among its several parts.

One of the chief objections urged by the more respectable opponents of the Constitution is that it violates the political maxim that the legislative, executive, and judiciary departments ought to be kept separate and distinct. In the federal government, they say, no regard has been paid to this essential safeguard of liberty. The departments of power are mixed and blended so badly that the whole structure loses its symmetry, and some of its essential parts are left in danger of being crushed by the disproportionate weight of others.

No political truth carries greater intrinsic value, or bears the authority of more enlightened friends of liberty, than the one on which this objection rests. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be called the very definition of tyranny. If the federal Constitution were truly chargeable with such an accumulation, or with a blending of powers that tended dangerously toward it, no further argument would be needed to condemn the whole system. I am confident, however, that the charge cannot be sustained, and that the maxim it relies on has been completely misunderstood and misapplied. To think clearly about this, we must first investigate the precise sense in which the preservation of liberty requires the three great departments to be separate and distinct.

The authority always consulted and cited on this subject is Montesquieu. Even if he did not first discover this precept in the science of politics, he has at least the merit of displaying it and recommending it to mankind more effectively than anyone else. Let us begin by establishing what he actually meant.

The British Constitution was to Montesquieu what Homer has been to writers on the art of epic poetry. Just as they treat the work of that immortal poet as the perfect model from which the rules of the epic are drawn, and against which all similar works are judged, so this great political critic seems to have viewed the English constitution as the standard, or in his own phrase, the mirror of political liberty, and to have set down its characteristic principles as elementary truths. To be sure we do not mistake his meaning, then, let us go back to the source from which the maxim was drawn.

On even the slightest examination of the British Constitution, we see at once that the legislative, executive, and judiciary departments are by no means wholly separate and distinct. The executive magistrate forms an integral part of the legislative authority: he alone has the power of making treaties with foreign sovereigns, which once made carry, within certain limits, the force of legislative acts. Every member of the judiciary is appointed by him, may be removed by him on the address of the two Houses of Parliament, and forms, when he chooses to consult it, one of his constitutional councils. One branch of the legislature also serves as a great constitutional council to the executive, while at the same time it is the sole holder of judicial power in cases of impeachment and is vested with the supreme appellate jurisdiction in all other cases. The judges, in turn, are connected with the legislative department, for they often attend and take part in its deliberations, though they are not allowed a legislative vote.

From these facts, which guided Montesquieu, we may clearly infer his meaning. When he wrote that there can be no liberty where the legislative and executive powers are united in the same person or body, or where the power of judging is not separated from the legislative and executive powers, he did not mean that these departments ought to have no partial agency in, or no control over, one another’s acts. His meaning, as his own words show and as the example before his eyes confirms still more conclusively, can amount only to this: that where the whole power of one department is exercised by the same hands that hold the whole power of another, the fundamental principles of a free constitution are subverted.

This would indeed have been the case in the constitution he examined, had the king, who is the sole executive magistrate, also held the complete legislative power or the supreme administration of justice; or had the entire legislative body held the supreme judicial or supreme executive authority. But this is not among the defects of that constitution. The magistrate in whom the whole executive power resides cannot by himself make a law, though he may veto any law; nor can he administer justice in person, though he appoints those who do. The judges can exercise no executive prerogative, though they spring from the executive stock, nor any legislative function, though the legislative councils may consult them. The whole legislature can perform no judicial act, though by the joint act of two of its branches the judges may be removed, and though one branch holds the judicial power of last resort; and it can exercise no executive prerogative, though one branch forms the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn the subordinate officers of the executive department.

The reasons Montesquieu gives for his maxim further demonstrate his meaning. When the legislative and executive powers are united in the same person or body, he says, there can be no liberty, because one may fear that the same monarch or senate will enact tyrannical laws in order to execute them tyrannically. And again: were the power of judging joined to the legislative, the life and liberty of the subject would lie open to arbitrary control, for the judge would then be the legislator; were it joined to the executive, the judge might act with all the violence of an oppressor. Stated briefly as they are here, these reasons are enough to fix the meaning we have given to this celebrated maxim of this celebrated author.

If we now look into the constitutions of the several States, we find that, despite the emphatic and sometimes unqualified terms in which this axiom is laid down, there is not a single instance in which the departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was formed last, seems to have grasped fully how impossible and inexpedient it is to avoid all mixture of these departments, and so qualified the doctrine, declaring that the legislative, executive, and judiciary powers ought to be kept as separate from and independent of each other as the nature of a free government will admit, and as is consistent with the chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity. Its constitution accordingly mixes these departments in several ways. The Senate, a branch of the legislature, is also a tribunal for trying impeachments. The President, head of the executive, also presides in the Senate, and besides an ordinary vote has a casting vote in case of a tie. The executive head is himself elected each year by the legislature, his council is chosen each year from among its members, several officers of state are appointed by it, and the members of the judiciary are appointed by the executive.

The constitution of Massachusetts takes a sufficient, though less pointed, precaution in stating this fundamental article of liberty. It declares that the legislative department shall never exercise the executive or judicial powers, the executive shall never exercise the legislative or judicial powers, and the judicial shall never exercise the legislative or executive powers. This corresponds exactly with Montesquieu’s doctrine as explained, and the plan of the convention does not violate it in a single point; for it goes no further than to forbid any one whole department from exercising the powers of another. Yet in the very constitution to which this declaration is prefixed, a partial mixture of powers is admitted. The executive magistrate has a qualified veto over the legislature; the Senate, part of the legislature, is a court of impeachment for members of both the executive and judiciary departments; the members of the judiciary are appointable by the executive and removable by it on the address of the two legislative branches; and a number of government officers are appointed each year by the legislature. Since appointment to office, especially executive office, is by its nature an executive function, the framers have, on this last point at least, violated the rule they set for themselves.

I pass over the constitutions of Rhode Island and Connecticut, because they were formed before the Revolution, and even before the principle now under examination had become an object of political attention.

The constitution of New York contains no declaration on this subject, but it was plainly framed with an eye to the danger of improperly blending the departments. Even so, it gives the executive magistrate a partial control over the legislature, and, more than that, gives a like control to the judiciary, and even blends the executive and judiciary in exercising that control. In its council of appointment, members of the legislature are joined with the executive authority in appointing officers both executive and judiciary; and its court for trying impeachments and correcting errors is to consist of one branch of the legislature together with the principal members of the judiciary.

The constitution of New Jersey has blended the powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; he is chancellor and surrogate of the State, a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. That same legislative branch acts also as the governor’s executive council, and together with him forms the Court of Appeals. The members of the judiciary are appointed by the legislature and removable by one of its branches on the impeachment of the other.

Under the constitution of Pennsylvania, the president, head of the executive department, is elected each year by a vote in which the legislature predominates. Together with an executive council he appoints the members of the judiciary, and forms a court of impeachment for the trial of all officers, judicial as well as executive. The judges of the Supreme Court and the justices of the peace also appear to be removable by the legislature, and the executive power of pardon in certain cases seems to be lodged in that same department. The members of the executive council are made ex-officio justices of the peace throughout the State.

In Delaware, the chief executive magistrate is elected each year by the legislature. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others appointed three by each legislative branch, constitutes the Supreme Court of Appeals, and he joins with the legislature in appointing the other judges. Throughout the States the members of the legislature may at the same time be justices of the peace; in Delaware the members of one legislative branch are justices of the peace by virtue of office, as are the members of the executive council. The principal officers of the executive department are appointed by the legislature; one of its branches forms a court of impeachment; and all officers may be removed on the address of the legislature.

Maryland has adopted the maxim in the most unqualified terms, declaring that the legislative, executive, and judicial powers ought to be forever separate and distinct from each other. Its constitution nonetheless makes the executive magistrate appointable by the legislature, and the members of the judiciary appointable by the executive.

Virginia’s language is still more pointed. Its constitution declares that the legislative, executive, and judiciary departments shall be separate and distinct, so that none exercises the powers properly belonging to another, and that no person shall exercise the powers of more than one of them at the same time, except that the justices of county courts may be eligible to either House of Assembly. Yet besides this express exception for members of the inferior courts, we find that the chief magistrate and his executive council are appointable by the legislature; that two members of the council are removed every three years at the legislature’s pleasure; that all the principal offices, executive and judicial alike, are filled by that same department; and that the executive prerogative of pardon is, in one case, vested in the legislature.

The constitution of North Carolina, which declares that the legislative, executive, and supreme judicial powers ought to be forever separate and distinct, at the same time assigns to the legislature the appointment not only of the executive chief but of all the principal officers within both that department and the judiciary.

In South Carolina, the constitution makes the executive magistracy eligible by the legislature. It gives the legislature, too, the appointment of the members of the judiciary, including even justices of the peace and sheriffs, and the appointment of officers in the executive department down to captains in the army and navy of the State.

In Georgia, where the constitution declares that the legislative, executive, and judiciary departments shall be separate and distinct, so that none exercises the powers properly belonging to another, we nonetheless find that the executive department is filled by appointments of the legislature, that the executive prerogative of pardon is finally exercised by that same authority, and that even justices of the peace are appointed by the legislature.

In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate, I do not wish to be taken as defending the particular arrangements of the several State governments. I am fully aware that, alongside the many excellent principles they exemplify, they bear strong marks of the haste, and still stronger marks of the inexperience, under which they were framed. It is all too plain that in some cases the very principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers, and that in no case has any adequate provision been made to maintain in practice the separation drawn on paper. What I have meant to show is this: that the charge against the proposed Constitution, that it violates the sacred maxim of free government, is warranted neither by the real meaning its author attached to the maxim nor by the sense in which it has so far been understood in America. This important subject will be taken up again in the next paper.

The last paper showed that the maxim about separating the legislative, executive, and judiciary departments does not demand that they be wholly disconnected from each other. I now take up the next point: unless these departments are connected and blended enough to give each a constitutional control over the others, the very separation that the maxim calls for, as essential to free government, can never in practice be properly maintained.

Everyone agrees that the powers properly belonging to one department ought not to be directly and completely administered by another, and that none of them should hold, directly or indirectly, an overruling influence over the others in exercising their respective powers. Nor will anyone deny that power is by nature encroaching, and that it ought to be effectually restrained from passing the limits assigned to it. Once we have distinguished, in theory, the several classes of power as legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each against invasion by the others; what that security ought to be is the great problem to be solved.

Is it enough to mark the boundaries of these departments precisely in the constitution, and then trust to these parchment barriers against the encroaching spirit of power? This is the security chiefly relied on by those who framed most of the American constitutions. But experience assures us that its efficacy has been greatly overrated, and that some more adequate defense is indispensable for the weaker members of the government against the stronger. The legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.

The founders of our republics deserve so much credit for their wisdom that no task could be less pleasing than pointing out the errors into which they have fallen. Yet respect for truth obliges us to remark that they seem never for a moment to have turned their eyes from one danger to liberty: the overgrown, all-grasping prerogative of a hereditary magistrate, propped up by a hereditary branch of the legislature. They seem never to have recalled the danger from legislative usurpations, which, by gathering all power into the same hands, must lead to the same tyranny threatened by executive usurpations.

In a government where a hereditary monarch holds numerous and extensive prerogatives, the executive department is justly regarded as the source of danger and watched with all the jealousy that a zeal for liberty inspires. In a direct democracy, where a multitude exercises the legislative functions in person, the people are continually exposed, by their incapacity for regular deliberation and concerted action, to the ambitious intrigues of their executive magistrates, so tyranny may well be feared to spring up on some favorable occasion from that same quarter. But in a representative republic, the case is different. Here the executive magistracy is carefully limited in both the extent and the duration of its power, while the legislative power is exercised by an assembly that draws an intrepid confidence from its supposed influence over the people. That assembly is numerous enough to feel all the passions that move a multitude, yet not so numerous as to be incapable of pursuing the objects of those passions by means that reason prescribes. It is against the enterprising ambition of this department that the people ought to direct all their jealousy and exhaust all their precautions.

The legislative department gains a further superiority in our governments from other circumstances. Because its constitutional powers are at once more extensive and less open to precise limits, it can more easily mask, under complicated and indirect measures, the encroachments it makes on the coordinate departments. It is often a question of real nicety in legislative bodies whether a particular measure will or will not reach beyond the legislative sphere. The executive power, by contrast, is confined within a narrower compass and is simpler in nature, and the judiciary is marked off by landmarks still less uncertain; so any project of usurpation by either of these departments would immediately betray and defeat itself.

Nor is this all. The legislative department alone has access to the pockets of the people, and it holds, in some constitutions full discretion and in all a prevailing influence, over the pay of those who fill the other departments. This creates a dependence in the others that gives the legislature still greater facility for its encroachments.

I have appealed to our own experience for the truth of what I advance here. Were it necessary to verify that experience by particular proofs, they could be multiplied without end: I might call a witness in every citizen who has shared in or watched the course of public administration, and collect vouchers in abundance from the records and archives of every State in the Union. But for evidence that is more concise and equally satisfactory, I will refer to the example of two States, attested by two unexceptionable authorities.

The first example is Virginia, a State that has expressly declared in its constitution that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for observing the operation of the government, was himself its chief magistrate. To convey fully the ideas his experience had impressed on him, it is necessary to quote at some length from his Notes on the State of Virginia (p. 195).

Jefferson writes: “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others.”

He continues: for this reason, the convention that passed the ordinance of government laid its foundation on the principle 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 executive members were left dependent on the legislature for their pay in office, and some of them for staying in office at all. So if the legislature assumes executive and judiciary powers, no opposition is likely to be made, and any opposition that is made cannot be effectual; for the legislature can cast its proceedings in the form of acts of Assembly, which become binding on the other branches. Accordingly, Jefferson reports, the legislature has in many instances decided rights that should have been left to judicial controversy, and its direction of the executive, throughout the whole time of its session, is becoming habitual and familiar.

The other State I take as an example is Pennsylvania, and the other authority is its Council of Censors, which met in 1783 and 1784. Part of this body’s duty under the constitution was to inquire whether the constitution had been preserved inviolate in every part, and whether the legislative and executive branches had performed their duty as guardians of the people, or had instead assumed or exercised powers greater than the constitution allowed. In carrying out this trust, the council necessarily compared both the legislative and executive proceedings against the constitutional powers of those departments. From the facts they enumerated, most of which both sides on the council accepted as true, it appears that the constitution had been flagrantly violated by the legislature in many important instances.

A great number of laws had been passed in violation of the rule that all bills of a public nature must first be printed for the people’s consideration, and this without any apparent necessity, even though that rule is one of the precautions the constitution chiefly relies on against improper acts of the legislature. The constitutional trial by jury had been violated, and powers assumed that the constitution had not delegated. Executive powers had been usurped. The salaries of the judges, which the constitution expressly requires to be fixed, had been varied from time to time, and cases belonging to the judiciary were frequently drawn into legislative cognizance and decision.

Anyone who wishes to see the particular cases under each of these heads may consult the council’s journals, which are in print. Some of these instances, it will be found, may be charged to peculiar circumstances connected with the war, but the greater part may be regarded as the natural shoots of an ill-constituted government.

It appears, too, that the executive department had not been innocent of frequent breaches of the constitution. Three observations, however, ought to be made on this point. First, a great proportion of these instances were either produced immediately by the necessities of the war, or recommended by Congress or the commander-in-chief. Second, in most of the other instances, the executive conformed to the declared or known sentiments of the legislative department. Third, the executive department of Pennsylvania is distinguished from that of the other States by the number of its members: in this respect it has as much affinity to a legislative assembly as to an executive council. Being exempt from the restraint of individual responsibility for the body’s acts, and drawing confidence from mutual example and joint influence, such a body would naturally hazard unauthorized measures more freely than an executive administered by a single hand or by a few.

The conclusion I am warranted in drawing from these observations is this: a mere line drawn on parchment marking the constitutional limits of the several departments is not a sufficient guard against the encroachments that lead to a tyrannical concentration of all the powers of government in the same hands.

The author of the “Notes on the State of Virginia,” quoted in the last paper, attached to that work a draft constitution prepared for a convention expected to be called in 1783 by the legislature to establish a constitution for that commonwealth. Like everything from the same hand, the plan shows a mode of thinking that is original, comprehensive, and exact; it deserves attention because it combines a fervent attachment to republican government with a clear-eyed view of the dangers that government must guard against. One of the precautions it proposes, and the one on which the author seems finally to rely to shield the weaker departments of power from the invasions of the stronger, is perhaps entirely his own; and because it bears directly on our present inquiry, we should not pass it over.

His proposal is this: whenever any two of the three branches of government agree, each by a two-thirds vote of its whole number, that a convention is necessary for altering the constitution or for correcting breaches of it, a convention shall be called for that purpose.

Since the people are the only legitimate source of power, and the constitutional charter under which the several branches hold their authority is derived from them, it accords strictly with republican theory to return to that same original authority. We should do so not only when the powers of government must be enlarged, reduced, or remodeled, but also whenever any one department encroaches on the chartered authority of the others. Because the departments are perfectly co-equal under the terms of their common commission, none of them can claim an exclusive or superior right to settle the boundaries between their respective powers. And how else are the encroachments of the stronger to be prevented, or the wrongs of the weaker redressed, except by an appeal to the people, who, as grantors of the commissions, can alone declare their true meaning and enforce their observance?

There is real force in this reasoning, and it proves that a constitutional road to the decision of the people should be marked out and kept open for certain great and extraordinary occasions. But there are insurmountable objections to making such recurrence to the people a standing provision, applied in every case, for keeping the departments within their constitutional limits.

First, the provision does not reach the case of two departments combining against the third. The legislature commands many means of working on the motives of the other branches; if it could win over either of the others, or even one third of its own members, the remaining department would gain nothing from this remedy. I do not press this objection far, however, since it may be taken as an argument against the particular form of the principle rather than against the principle itself.

Next comes an objection inherent in the principle itself. Every appeal to the people implies some defect in the government, so frequent appeals would largely strip the government of the veneration that time confers on everything, and without which perhaps even the wisest and freest governments would not possess the stability they require. If it is true that all governments rest on opinion, it is equally true that the strength of an opinion in each person, and its practical hold on his conduct, depends much on how many others he believes hold the same opinion. The reason of man, like man himself, is timid and cautious when it stands alone, and gains firmness and confidence in proportion to the number with which it is joined. When the examples that fortify an opinion are ancient as well as numerous, their effect is doubled. In a nation of philosophers this consideration could be disregarded, for an enlightened reason would itself instill a sufficient reverence for the laws. But a nation of philosophers is as little to be expected as the race of philosopher-kings that Plato wished for. In every other nation, even the most rational government will find it no superfluous advantage to have the prejudices of the community on its side.

A still graver objection to referring constitutional questions frequently to the whole society is the danger of disturbing the public peace by rousing the public passions too strongly. The revisions of our established forms of government have succeeded, and that success does great honor to the virtue and intelligence of the American people; yet these experiments are too delicate in nature to be multiplied without need. We should recall that all the existing constitutions were framed amid a danger that suppressed the passions most hostile to order and concord; amid an enthusiastic confidence of the people in their patriotic leaders, which silenced the usual diversity of opinion on great national questions; amid a universal zeal for new and contrary forms, born of a universal resentment against the old government; and at a time when no spirit of party was bound up with the changes to be made or the abuses to be reformed. The situations we must expect to face hereafter offer no equivalent security against the danger we fear.

But the greatest objection of all is that the decisions likely to come from such appeals would not serve the purpose of maintaining the constitutional balance of the government. We have seen that republican governments tend to enlarge the legislature at the expense of the other departments. The appeals to the people, then, would usually be made by the executive and judiciary. But whoever made them, would the two sides meet on equal terms? Consider their different situations. The members of the executive and judiciary are few, and can be personally known to only a small part of the people; by the manner of their appointment and its nature and permanence, they stand too far from the people to share much in their attachments; they are commonly objects of jealousy, and their administration is always liable to be cast in an unfavorable light. The members of the legislature, by contrast, are numerous. They are spread through the country and live among the people at large. Their ties of blood, friendship, and acquaintance reach a great share of the most influential part of society. The very nature of their trust gives them personal influence among the people and makes them seem the closer guardians of the people’s rights and liberties. With these advantages on one side, the opposing party can hardly be supposed to have an equal chance of a favorable outcome.

The legislative party would not only plead its cause most successfully with the people; it would probably end up sitting in judgment of itself. The same influence that won its members an election to the legislature would win them seats in the convention. If not all, then many would be chosen, and almost certainly those leading figures on whom everything in such bodies depends. In short, the convention would be composed chiefly of men who had been, who actually were, or who expected to be members of the very department whose conduct was on trial. They would therefore be parties to the very question they were to decide.

It might still sometimes happen that an appeal would be made under circumstances less unfavorable to the executive and judiciary. The usurpations of the legislature might be so flagrant and sudden as to leave no plausible cover for them; a strong faction within the legislature itself might side with the other branches; the executive power might lie in the hands of a special favorite of the people. In such a posture the public decision might be less swayed by attachment to the legislative party. Even so, it could never be expected to turn on the true merits of the question. It would inevitably be bound up with the spirit of pre-existing parties, or of parties arising out of the question itself; it would be tied to persons of distinguished character and wide influence in the community; and it would be pronounced by the very men who had been agents in, or opponents of, the measures the decision concerned. The passions, therefore, and 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 enough to keep the several departments within their legal rights. It appears in this paper that occasional appeals to the people would be neither a proper nor an effective provision for that purpose. How far the other provisions in the plan quoted above might serve, I do not examine; some of them are unquestionably founded on sound political principles, and all are framed with singular ingenuity and precision.

Someone might argue that instead of occasional appeals to the people, which face the objections already raised, periodical appeals set at fixed intervals are the proper and sufficient way to prevent and correct violations of the Constitution. In weighing this method I confine myself to how well it would enforce the Constitution by keeping each department of power within its proper limits, not to whether it might serve as a way of altering the Constitution itself.

Judged on that ground, appeals to the people at fixed periods seem almost as objectionable as appeals on particular occasions as they arise. If the intervals are short, the measures up for review will be recent, and they will carry all the heated circumstances that distort the result of occasional revisions. If the intervals are long, the same problem still applies to whatever measures are recent; and although distance from the older measures may allow a calmer review of them, that one advantage comes bound up with drawbacks that seem to cancel it out.

Consider those drawbacks. First, the distant prospect of public censure would barely restrain power from the excesses that present motives might push it toward. Can we really imagine that a legislative assembly of a hundred or two hundred members, set on some favorite object and breaking through constitutional limits to reach it, would be stopped in its course by the thought of having its conduct reviewed ten, fifteen, or twenty years later? Second, the abuses would often finish their damage before the corrective review ever arrived. And third, where that was not so, the abuses would by then be of long standing, would have taken deep root, and would not easily be removed.

The plan of revising the constitution to correct recent breaches of it, among other aims, has actually been tried in one of the States. One purpose of the Council of Censors that 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 on each other. This important and novel political experiment deserves close attention from several angles. As a single trial made under somewhat unusual circumstances, it may, in some respects, be thought not absolutely conclusive. But applied to the question before us, it supplies facts that I offer as a full and satisfactory illustration of the reasoning I have used.

First, the names of the gentlemen who made up the council show that at least some of its most active members had also been active and leading figures in the parties that already existed in the State. Second, those same active and leading members had been influential in the legislative and executive branches during the very period under review, and had been either patrons or opponents of the very measures now to be tested against the constitution. Two members had served as vice-presidents of the State, and several others on the executive council, within the preceding seven years; one had been speaker, and a number of others prominent members, of the legislative assembly during the same span.

Third, every page of their proceedings shows the effect of these circumstances on the temper of their deliberations. For its whole duration the council was split into two fixed and violent parties, a fact they admitted and lamented themselves. Even setting that admission aside, the record offers equal proof: on every question, however trivial or unrelated to the others, the same names stand invariably opposed in the two columns. Any unbiased observer may safely infer, with no intent to reflect on either party or any of its members, that passion rather than reason must have governed their decisions. Men who reason coolly and freely across many separate questions inevitably disagree on some; men driven by a common passion arrive at the same opinions, if such they can be called.

Fourth, it is at least open to doubt whether the council’s decisions did not, in several instances, misread the limits set for the legislative and executive departments rather than holding those departments to their constitutional places. Fifth, I have never understood that the council’s rulings on constitutional questions, whether sound or mistaken, had any effect in changing the practice built on the legislature’s own interpretations. It even appears, if I am not mistaken, that in one instance the legislature of the day rejected the council’s reading and actually won the contest.

This censorial body therefore proves two things at once: by its inquiries, that the disease exists; and by its own example, that this remedy does not work. The conclusion cannot be set aside by objecting that the State where the experiment was made happened then, and had long been, violently heated and torn by party rage. Are we to assume that at any future seven-year mark that same State will be free of parties? Or that any other State, at that period or any other, will be exempt from them? Such a condition should be neither expected nor wished for, since the extinction of parties implies either a universal alarm for public safety or the complete extinction of liberty.

Nor would the difficulty be solved by taking the precaution of barring from these review assemblies, chosen by the people to examine the government’s prior conduct, everyone who had taken part in the government during the period under review. The task would then likely fall to men of lesser ability who were not much better qualified in other respects. Even if they had not been personally involved in the administration, and so were not direct agents in the measures to be examined, they would probably have belonged to the parties tied to those measures and have been elected under their banner.

What, then, can we finally rely on to maintain in practice the division of power among the several departments that the Constitution lays down? Since all the external provisions prove inadequate, the defect must be supplied by so arranging the interior structure of the government that its several parts, through their mutual relations, become the means of keeping one another in their proper places. I will not attempt a full development of this important idea, but a few general observations may place it in a clearer light and help us judge the principles and structure of the government planned by the convention.

To lay a proper foundation for that separate and distinct exercise of the different powers which, to a certain extent, is admitted on all sides to be essential to the preservation of liberty, each department should plainly have a will of its own; its members should therefore have as little say as possible in appointing the members of the others. Followed strictly, this principle would require that the executive, legislative, and judicial offices all be drawn from the same source, the people, through channels entirely independent of one another. Such a plan might prove less difficult in practice than it appears in theory, though some difficulties and added expense would attend it, so some deviations from the principle must be allowed. The judiciary in particular makes a rigorous application inexpedient. First, because special qualifications are essential in its members, the main consideration must be to choose the mode of selection that best secures those qualifications. Second, because judges hold their offices permanently, they will soon lose any sense of dependence on the authority that appointed them.

It is equally clear that the members of each department should depend as little as possible on the others for the salaries attached to their offices. Were the executive or the judges not independent of the legislature in this respect, their independence in every other respect would be merely nominal.

The great security against a gradual concentration of the several powers in one department lies in giving those who administer each department the constitutional means and the personal motives to resist encroachments by the others. The means of defense must, here as everywhere, be made proportionate to the danger of attack: ambition must be made to counteract ambition, and the interest of the officeholder must be tied to the constitutional rights of his office. It may reflect poorly on human nature that such devices are needed 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; and if angels governed men, neither external nor internal controls on government would be necessary. In framing a government to be administered by men over men, the great difficulty is this: you must first enable the government to control the governed, and then 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 the want of better motives by opposite and rival interests runs through the whole of human affairs, private as well as public. We see it especially in the lesser distributions of power, where the constant aim is to arrange the several offices so that each may be a check on the others, and so that the private interest of every individual may stand sentinel over the public rights. Such inventions of prudence are no less needed in distributing the supreme powers of the state.

It is not possible, however, to give every department an equal power of self-defense. In republican government the legislative authority necessarily predominates. The remedy is to divide the legislature into different branches and, through different modes of election and different principles of action, to keep them as little connected with one another as their common functions and their common dependence on society allow; further precautions against dangerous encroachments may even be required. Because the weight of the legislature requires that it be divided, the weakness of the executive may require, on the other hand, that it be fortified. An absolute veto on the legislature seems at first the natural defense for the executive, yet it would be neither wholly safe nor sufficient by itself: on ordinary occasions it might not be used with the needed firmness, and on extraordinary occasions it might be treacherously abused. May not this defect be supplied by some qualified connection between the weaker executive and the weaker branch of the stronger legislature, by which that branch is led to support the constitutional rights of the executive without being too much detached from the rights of its own department?

If the principles behind these observations are sound, as I am persuaded they are, and we apply them as a test to the several state constitutions and to the federal Constitution, we will find that even where the federal Constitution does not perfectly answer them, the state constitutions are infinitely less able to bear such a test.

Two further considerations apply particularly to the federal system of America and place it in a very interesting light.

First. In a single republic, all the power surrendered by the people is given to one government, and usurpations are guarded against by dividing that 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 given to each is subdivided among distinct and separate departments. A double security therefore arises for the rights of the people: the two governments will control each other, while each at the same time controls itself.

Second. In a republic it is of great importance not only to guard society against the oppression of its rulers, but to guard one part of society against the injustice of the other part. Different interests necessarily exist among different classes of citizens, and if a majority is united by a common interest, the rights of the minority will be insecure. There are only two ways to provide against this evil: the one is to create a will in the community independent of the majority, that is, independent of society itself; the other is to take in so many separate descriptions of citizens that an unjust combination of a majority of the whole becomes very improbable, if not impracticable.

The first method prevails in all governments holding a hereditary or self-appointed authority. This is at best a precarious security, because a power independent of society may espouse the unjust views of the majority as readily as the rightful interests of the minority, and may even be turned against both. The second method will be exemplified in the federal republic of the United States. Since all authority there will be derived from and dependent on society, yet society itself will be broken into so many parts, interests, and classes of citizens, the rights of individuals and 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: in the one case it consists in the multiplicity of interests, in the other in the multiplicity of sects. The degree of security in both cases depends on the number of interests and sects, which may be presumed to depend on the extent of country and the number of people under the same government. This recommends a proper federal system to every sincere friend of republican government, for it shows that exactly as the territory of the Union is broken into smaller confederacies or states, oppressive combinations of a majority are made easier, the best security for the rights of every class of citizens is diminished, and the stability and independence of some part of the government, the only remaining security, must be increased in proportion.

Justice is the end of government and of civil society. It has always been and always will be pursued until it is attained, or until liberty is lost in the pursuit. In a society whose forms allow the stronger faction to unite readily and oppress the weaker, anarchy may be said to reign as truly as in a state of nature, where the weaker individual is not secured against the violence of the stronger. And just as, in that state of nature, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government that protects the weak along with themselves, so in such a society the more powerful factions will gradually be induced, by the same motive, to wish for a government that protects all parties, the weaker as well as the stronger.

It can hardly be doubted that if Rhode Island were separated from the Confederacy and left to itself, the insecurity of rights under a popular government within such narrow limits would be shown by such repeated oppressions of factious majorities that some power altogether independent of the people would soon be demanded by the very factions whose misrule had proved the need for it. In the extended republic of the United States, with its great variety of interests, parties, and sects, a combination of a majority of the whole society could seldom form except on principles of justice and the general good; and since there is thus less danger to a minority from the will of a majority, there is also less pretext for providing security through a will not dependent on society, that is, a will independent of society itself.

It is no less certain than it is important, despite contrary opinions, that the larger the society, provided it lies within a practical sphere, the more capable it will be of self-government. And happily for the republican cause, that practicable sphere may be carried very far by a judicious modification and mixture of the federal principle.