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FEDERALIST NO. 51

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different

Departments

From the

New Y

ork Packet

Friday, February 8, 1788.

Author:

Alexander Hamilton

or

James Madison

To the People of the State of New Y

ork:

TO WHA

T 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 dif

ferent 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. W

ere 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 dif

ficult in practice than it may in

contemplation appear

. Some dif

ficulties, 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 of

fices. W

ere 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 dif

ficulty 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 af

fairs, private as well as

public. W

e see it particularly displayed in all the subordinate distributions of power

, where the constant aim is to

divide and arrange the several of

fices 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 dif

ferent branches; and to render them, by dif

ferent

modes of election and dif

ferent 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 suf

ficient. 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 dif

ferent 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 dif

ferent 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