Name: Remnant
Author: Fletcher Whitney

FEDERALIST No. 51
The Structure of the Government Must Furnish the Proper Checks
and Balances Between the Different Departments
From the New York Packet. Friday, February 8, 1788.
To the People of the State of New York:
TO WHAT expedient, then, shall we finally resort, for maintaining
in practice the necessary partition of power among the several
departments, as laid down in the Constitution? The only answer
that can be given is, that as all these exterior provisions are
found to be inadequate, the defect must be supplied, by so
contriving the interior structure of the government as that its
several constituent parts may, by their mutual relations, be
the means of keeping each other in their proper places. Without
presuming to undertake a full development of this important
idea, I will hazard a few general observations, which may
perhaps place it in a clearer light, and enable us to form a
more correct judgment of the principles and structure of the
government planned by the convention.
In order to lay a due foundation for that separate and distinct
exercise of the different powers of government, which to a
certain extent is admitted on all hands to be essential to the
preservation of liberty, it is evident that each department
should have a will of its own; and consequently should be so
constituted that the members of each should have as little
agency as possible in the appointment of the members of the
others. Were this principle rigorously adhered to, it would
require that all the appointments for the supreme executive,
legislative, and judiciary magistracies should be drawn from
the same fountain of authority, the people, through channels
having no communication whatever with one another. Perhaps such
a plan of constructing the several departments would be less
difficult in practice than it may in contemplation appear.
Some difficulties, however, and some additional expense would
attend the execution of it. Some deviations, therefore, from
the principle must be admitted. In the constitution of the
judiciary department in particular, it might be inexpedient to
insist rigorously on the principle: first, because peculiar
qualifications being essential in the members, the primary
consideration ought to be to select that mode of choice which
best secures these qualifications; secondly, because the permanent
tenure by which the appointments are held in that department,
must soon destroy all sense of dependence on the authority
conferring them.
It is equally evident, that the members of each department should
be as little dependent as possible on those of the others, for
the emoluments annexed to their offices. Were the executive
magistrate, or the judges, not independent of the legislature
in this particular, their independence in every other would be
merely nominal.
But the great security against a gradual concentration of the
several powers in the same department, consists in giving to
those who administer each department the necessary constitutional
means and personal motives to resist encroachments of the others.
The provision for defense must in this, as in all other cases,
be made commensurate to the danger of attack. Ambition must be
made to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place. It may
be a reflection on human nature, that such devices should be
necessary 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.
If angels were to govern men, neither external nor internal
controls on government would be necessary. In framing a government
which is to be administered by men over men, the great difficulty
lies in this: you must first enable the government to control
the governed; and in the next place 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, by opposite and rival interests, the
defect of better motives, might be traced through the whole
system of human affairs, private as well as public. We see it
particularly displayed in all the subordinate distributions of
power, where the constant aim is to divide and arrange the
several offices in such a manner as that each may be a check
on the other — that the private interest of every individual
may be a sentinel over the public rights. These inventions of
prudence cannot be less requisite in the distribution of the
supreme powers of the State.
But it is not possible to give to each department an equal power
of self-defense. In republican government, the legislative
authority necessarily predominates. The remedy for this
inconveniency is to divide the legislature into different
branches; and to render them, by different modes of election
and different principles of action, as little connected with
each other as the nature of their common functions and their
common dependence on the society will admit. It may even be
necessary to guard against dangerous encroachments by still
further precautions. As the weight of the legislative authority
requires that it should be thus divided, the weakness of the
executive may require, on the other hand, that it should be
fortified. An absolute negative on the legislature appears, at
first view, to be the natural defense with which the executive
magistrate should be armed. But perhaps it would be neither
altogether safe nor alone sufficient. On ordinary occasions it
might not be exerted with the requisite firmness, and on
extraordinary occasions it might be perfidiously abused. May
not this defect of an absolute negative be supplied by some
qualified connection between this weaker department and the
weaker branch of the stronger department, by which the latter
may be led to support the constitutional rights of the former,
without being too much detached from the rights of its own
department?
If the principles on which these observations are founded be
just, as I persuade myself they are, and they be applied as a
criterion to the several State constitutions, and to the federal
Constitution it will be found that if the latter does not
perfectly correspond with them, the former are infinitely less
able to bear such a test.
There are, moreover, two considerations particularly applicable
to the federal system of America, which place that system in
a very interesting point of view.
First. In a single republic, all the power surrendered by the
people is submitted to the administration of a single government;
and the usurpations are guarded against by a division of the
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 allotted to each subdivided among distinct
and separate departments. Hence a double security arises to the
rights of the people. The different governments will control
each other, at the same time that each will be controlled by
itself.
Second. It is of great importance in a republic not only to
guard the society against the oppression of its rulers, but to
guard one part of the society against the injustice of the other
part. Different interests necessarily exist in different classes
of citizens. If a majority be united by a common interest, the
rights of the minority will be insecure. There are but two
methods of providing against this evil: the one by creating a
will in the community independent of the majority — that is,
of the society itself; the other, by comprehending in the
society so many separate descriptions of citizens as will render
an unjust combination of a majority of the whole very improbable,
if not impracticable. The first method prevails in all governments
possessing an hereditary or self-appointed authority. This, at
best, is but a precarious security; because a power independent
of the society may as well espouse the unjust views of the
major, as the rightful interests of the minor party, and may
possibly be turned against both parties. The second method will
be exemplified in the federal republic of the United States.
Whilst all authority in it will be derived from and dependent
on the society, the society itself will be broken into so many
parts, interests, and classes of citizens, that the rights of
individuals, or 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. It consists in the one case in the multiplicity
of interests, and in the other in the multiplicity of sects.
The degree of security in both cases will depend on the number
of interests and sects; and this may be presumed to depend on
the extent of country and number of people comprehended under
the same government. This view of the subject must particularly
recommend a proper federal system to all the sincere and
considerate friends of republican government, since it shows
that in exact proportion as the territory of the Union may be
formed into more circumscribed Confederacies, or States oppressive
combinations of a majority will be facilitated: the best security,
under the republican forms, for the rights of every class of
citizens, will be diminished: and consequently the stability
and independence of some member of the government, the only
other security, must be proportionately increased. Justice is
the end of government. It is the end of civil society. It ever
has been and ever will be pursued until it be obtained, or
until liberty be lost in the pursuit. In a society under the
forms of which the stronger faction can readily unite and
oppress the weaker, anarchy may as truly be said to reign as
in a state of nature, where the weaker individual is not secured
against the violence of the stronger; and as, in the latter
state, even the stronger individuals are prompted, by the
uncertainty of their condition, to submit to a government which
may protect the weak as well as themselves; so, in the former
state, will the more powerful factions or parties be gradually
induced, by a like motive, to wish for a government which will
protect all parties, the weaker as well as the more powerful.
It can be little doubted that if the State of Rhode Island was
separated from the Confederacy and left to itself, the insecurity
of rights under the popular form of government within such
narrow limits would be displayed by such reiterated oppressions
of factious majorities that some power altogether independent
of the people would soon be called for by the voice of the very
factions whose misrule had proved the necessity of it. In the
extended republic of the United States, and among the great
variety of interests, parties, and sects which it embraces, a
coalition of a majority of the whole society could seldom take
place on any other principles than those of justice and the
general good; whilst there being thus less danger to a minor
from the will of a major party, there must be less pretext,
also, to provide for the security of the former, by introducing
into the government a will not dependent on the latter, or, in
other words, a will independent of the society itself. It is
no less certain than it is important, notwithstanding the
contrary opinions which have been entertained, that the larger
the society, provided it lie within a practical sphere, the
more duly capable it will be of self-government. And happily
for the REPUBLICAN CAUSE, the practicable sphere may be carried
to a very great extent, by a judicious modification and mixture
of the FEDERAL PRINCIPLE.
PUBLIUS.