FEDERALIST No. 48

These Departments Should Not Be So Far Separated as to Have No

Constitutional Control Over Each Other

From the New York Packet. Friday, February 1, 1788.

MADISON

To the People of the State of New York:

IT 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.

What 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. On 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. The 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. ''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. It 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.

The 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. PUBLIUS.