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To the People of
the State of New York:
OOOOIT WAS shown in the last paper that
the political apothegm there examined does not require that the
legislative, executive, and judiciary departments should be wholly
unconnected with each other. I shall undertake, in the next place, to
show that unless these departments be so far connected and blended as
to give to each a constitutional control over the others, the degree
of separation which the maxim requires, as essential to a free
government, can never in practice be duly maintained. It is agreed on
all sides, that the powers properly belonging to one of the
departments ought not to be directly and completely administered by
either of the other departments. It is equally evident, that none of
them ought to possess, directly or indirectly, an overruling influence
over the others, in the administration of their respective powers. It
will not be denied, that power is of an encroaching nature, and that
it ought to be effectually restrained from passing the limits assigned
to it. After discriminating, therefore, in theory, the several classes
of power, as they may in their nature be legislative, executive, or
judiciary, the next and most difficult task is to provide some
practical security for each, against the invasion of the others.
OOOOWhat this security ought to be, is
the great problem to be solved. Will it be sufficient to mark, with
precision, the boundaries of these departments, in the constitution of
the government, and to trust to these parchment barriers against the
encroaching spirit of power? This is the security which appears to
have been principally relied on by the compilers of most of the
American constitutions. But experience assures us, that the efficacy
of the provision has been greatly overrated; and that some more
adequate defense is indispensably necessary for the more feeble,
against the more powerful, members of the government. The legislative
department is everywhere extending the sphere of its activity, and
drawing all power into its impetuous vortex. The founders of our
republics have so much merit for the wisdom which they have displayed,
that no task can be less pleasing than that of pointing out the errors
into which they have fallen. A respect for truth, however, obliges us
to remark, that they seem never for a moment to have turned their eyes
from the danger to liberty from the overgrown and all-grasping
prerogative of an hereditary magistrate, supported and fortified by an
hereditary branch of the legislative authority. They seem never to
have recollected the danger from legislative usurpations, which, by
assembling all power in the same hands, must lead to the same tyranny
as is threatened by executive usurpations. In a government where
numerous and extensive prerogatives are placed in the hands of an
hereditary monarch, the executive department is very justly regarded
as the source of danger, and watched with all the jealousy which a
zeal for liberty ought to inspire. In a democracy, where a multitude
of people exercise in person the legislative functions, and are
continually exposed, by their incapacity for regular deliberation and
concerted measures, to the ambitious intrigues of their executive
magistrates, tyranny may well be apprehended, on some favorable
emergency, to start up in the same quarter. But in a representative
republic, where the executive magistracy is carefully limited; both in
the extent and the duration of its power; and where the legislative
power is exercised by an assembly, which is inspired, by a supposed
influence over the people, with an intrepid confidence in its own
strength; which is sufficiently numerous to feel all the passions
which actuate a multitude, yet not so numerous as to be incapable of
pursuing the objects of its passions, by means which reason
prescribes; it is against the enterprising ambition of this department
that the people ought to indulge all their jealousy and exhaust all
their precautions. The legislative department derives a superiority in
our governments from other circumstances. Its constitutional powers
being at once more extensive, and less susceptible of precise limits,
it can, with the greater facility, mask, under complicated and
indirect measures, the encroachments which it makes on the co-ordinate
departments. It is not unfrequently a question of real nicety in
legislative bodies, whether the operation of a particular measure
will, or will not, extend beyond the legislative sphere.
OOOOOn the other side, the executive
power being restrained within a narrower compass, and being more
simple in its nature, and the judiciary being described by landmarks
still less uncertain, projects of usurpation by either of these
departments would immediately betray and defeat themselves. Nor is
this all: as the legislative department alone has access to the
pockets of the people, and has in some constitutions full discretion,
and in all a prevailing influence, over the pecuniary rewards of those
who fill the other departments, a dependence is thus created in the
latter, which gives still greater facility to encroachments of the
former. I have appealed to our own experience for the truth of what I
advance on this subject. Were it necessary to verify this experience
by particular proofs, they might be multiplied without end. I might
find a witness in every citizen who has shared in, or been attentive
to, the course of public administrations. I might collect vouchers in
abundance from the records and archives of every State in the Union.
But as a more concise, and at the same time equally satisfactory,
evidence, I will refer to the example of two States, attested by two
unexceptionable authorities.
OOOOThe first example is that of
Virginia, a State which, as we have seen, 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 remarking the operation of the
government, was himself the chief magistrate of it. In order to convey
fully the ideas with which his experience had impressed him on this
subject, it will be necessary to quote a passage of some length from
his very interesting "Notes on the State of Virginia,'' p. 195. "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. For this reason, that convention
which passed the ordinance of government, laid its foundation on this
basis, that the legislative, executive, and judiciary departments
should be separate and distinct, so that no person should exercise the
powers of more than one of them at the same time. BUT NO BARRIER WAS
PROVIDED BETWEEN THESE SEVERAL POWERS. The judiciary and the executive
members were left dependent on the legislative for their subsistence
in office, and some of them for their continuance in it. If,
therefore, the legislature assumes executive and judiciary powers, no
opposition is likely to be made; nor, if made, can be effectual;
because in that case they may put their proceedings into the form of
acts of Assembly, which will render them obligatory on the other
branches. They have accordingly, IN MANY instances, DECIDED RIGHTS
which should have been left to JUDICIARY CONTROVERSY, and THE
DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS
BECOMING HABITUAL AND FAMILIAR.
OOOO''The other State which I shall take
for an example is Pennsylvania; and the other authority, the Council
of Censors, which assembled in the years 1783 and 1784. A part of the
duty of this body, as marked out by the constitution, was "to
inquire whether the constitution had been preserved inviolate in every
part; and whether the legislative and executive branches of government
had performed their duty as guardians of the people, or assumed to
themselves, or exercised, other or greater powers than they are
entitled to by the constitution. '' In the execution of this trust,
the council were necessarily led to a comparison of both the
legislative and executive proceedings, with the constitutional powers
of these departments; and from the facts enumerated, and to the truth
of most of which both sides in the council subscribed, it appears that
the constitution had been flagrantly violated by the legislature in a
variety of important instances. A great number of laws had been
passed, violating, without any apparent necessity, the rule requiring
that all bills of a public nature shall be previously printed for the
consideration of the people; although this is one of the precautions
chiefly relied on by the constitution against improper acts of
legislature. The constitutional trial by jury had been violated, and
powers assumed which had not been delegated by the constitution.
Executive powers had been usurped. The salaries of the judges, which
the constitution expressly requires to be fixed, had been occasionally
varied; and cases belonging to the judiciary department frequently
drawn within legislative cognizance and determination. Those who wish
to see the several particulars falling under each of these heads, may
consult the journals of the council, which are in print. Some of them,
it will be found, may be imputable to peculiar circumstances connected
with the war; but the greater part of them may be considered as the
spontaneous shoots of an ill-constituted government.
OOOOIt appears, also, that the executive
department had not been innocent of frequent breaches of the
constitution. There are three observations, however, which ought to be
made on this head: FIRST, a great proportion of the instances were
either immediately produced by the necessities of the war, or
recommended by Congress or the commander-in-chief; SECONDLY, in most
of the other instances, they conformed either to the declared or the
known sentiments of the legislative department; THIRDLY, the executive
department of Pennsylvania is distinguished from that of the other
States by the number of members composing it. In this respect, it has
as much affinity to a legislative assembly as to an executive council.
And being at once exempt from the restraint of an individual
responsibility for the acts of the body, and deriving confidence from
mutual example and joint influence, unauthorized measures would, of
course, be more freely hazarded, than where the executive department
is administered by a single hand, or by a few hands.
OOOOThe conclusion which I am warranted
in drawing from these observations is, that a mere demarcation on
parchment of the constitutional limits of the several departments, is
not a sufficient guard against those encroachments which lead to a
tyrannical concentration of all the powers of government in the same
hands.
OOOOPUBLIUS.
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