Federalist Papers
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NO. 1    General Inroduction
NO. 2    Concerning Dangers from Foreign Force and Influence
NO. 3    The Same Subject Continued: Concerning Dangers From Foreign Force and Influence
NO. 4    The Same Subject Continued: Concerning Dangers From Foreign Force and Influence
NO. 5    The Same Subject Continued: Concerning Dangers from Foreign Force and Influence.
NO. 6    Concerning Dangers from Dissensions Between the States
NO. 7    The Same Subject Continued: Concerning Dangers from Dissensions Between the States.
NO. 8    The Consequences of Hostilities Between the States
NO. 9    The Union as a Safeguard Against Domestic Faction and Insurrection.
NO. 10    The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection.
NO. 11    The Utility of the Union in Respect to Commercial Relations and a Navy
NO. 12    The Utility of the Union In Respect to Revenue.
NO. 13    Advantage of the Union in Respect to Economy in Government.
NO. 14    Objections to the Proposed Constitution From Extent of Territory Answered.
NO. 15    The Insufficiency of the Present Confederation to Preserve the Union.
NO. 16    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 17    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 18    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 19    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union
NO. 20    The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union.
NO. 21    Other Defects of the Present Confederation
NO. 22    The Same Subject Continued: Other Defects of the Present Confederation
NO. 23    The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union
NO. 24    The Powers Necessary to the Common Defense Further Considered
NO. 25    The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered
NO. 26    The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
NO. 27    The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
NO. 28    The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered
NO. 29    THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy
NO. 30    Concerning the General Power of Taxation
NO. 31    The Same Subject Continued: Concerning the General Power of Taxation
NO. 32    The Same Subject Continued: Concerning the General Power of Taxation
NO. 33    The Same Subject Continued: Concerning the General Power of Taxation
NO. 34    The Same Subject Continued Concerning the General Power of Taxation
NO. 35    The Same Subject Continued: Concerning the General Power of Taxation
NO. 36    The Same Subject Continued: Concerning the General Power of Taxation
NO. 37    Concerning the Difficulties of the Convention in Devising a Proper Form of Government
NO. 38    The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed
NO. 39    The Conformity of the Plan to Republican Principles
NO. 40    The Powers of the Convention to Form a Mixed Government Examined and Sustained
NO. 41    General View of the Powers Conferred by the Constitution
NO. 42    The Powers Conferred by the Constitution Further Considered
NO. 43    The Same Subject Continued: The Powers Conferred by the Constitution Further Considered
NO. 44    Restrictions on the Authority of the Several States
NO. 45    The Alleged Danger From the Powers of the Union to the State Governments Considered
NO. 46    The Influence of the State and Federal Governments Compared
NO. 47    The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts
NO. 48    These Departments Should Not Be So Far Separated as to Have No Constitutional Control Over Each Other
Close
End of Federalist Paper No. 48
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
Author: James Madison
To the People of New York


DeB 128 C 18Mod=18- FP2View=48- ParaX=1- XthisXParaX=1-
DeB 131 -1-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. DeB 131 -2-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=2- XthisXParaX=2-
DeB 131 -1-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. DeB 131 -2-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. DeB 131 -3-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. DeB 131 -4-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. DeB 131 -5-What this security ought to be, is the great problem to be solved.

DeB 128 C 18Mod=18- FP2View=48- ParaX=3- XthisXParaX=3-
DeB 131 -1-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? DeB 131 -2-This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. DeB 131 -3-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. DeB 131 -4-The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.

DeB 128 C 18Mod=18- FP2View=48- ParaX=4- XthisXParaX=4-
DeB 131 -1-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. DeB 131 -2-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. DeB 131 -3-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=5- XthisXParaX=5-
DeB 131 -1-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. DeB 131 -2-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. DeB 131 -3-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=6- XthisXParaX=6-
DeB 131 -1-The legislative department derives a superiority in our governments from other circumstances. DeB 131 -2-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. DeB 131 -3-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. DeB 131 -4-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. DeB 131 -5-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=7- XthisXParaX=7-
DeB 131 -1-I have appealed to our own experience for the truth of what I advance on this subject. DeB 131 -2-Were it necessary to verify this experience by particular proofs, they might be multiplied without end. DeB 131 -3-I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. DeB 131 -4-I might collect vouchers in abundance from the records and archives of every State in the Union. DeB 131 -5-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=8- XthisXParaX=8-
DeB 131 -1-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. DeB 131 -2-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. DeB 131 -3-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 DeB 131 -4-"All the powers of government, legislative, executive, and judiciary, result to the legislative body. DeB 131 -5-The concentrating these in the same hands, is precisely the definition of despotic government. DeB 131 -6-It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. DeB 131 -7-One hundred and seventy-three despots would surely be as oppressive as one. DeB 131 -8-Let those who doubt it, turn their eyes on the republic of Venice. DeB 131 -9-As little will it avail us, that they are chosen by ourselves. DeB 131 -10-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. DeB 131 -11-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. DeB 131 -12-BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL POWERS. DeB 131 -13-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. DeB 131 -14-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. DeB 131 -15-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."

DeB 128 C 18Mod=18- FP2View=48- ParaX=9- XthisXParaX=9-
DeB 131 -1-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. DeB 131 -2-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." DeB 131 -3-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=10- XthisXParaX=10-
DeB 131 -1-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=11- XthisXParaX=11-
DeB 131 -1-The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.

DeB 128 C 18Mod=18- FP2View=48- ParaX=12- XthisXParaX=12-
DeB 131 -1-Executive powers had been usurped.

DeB 128 C 18Mod=18- FP2View=48- ParaX=13- XthisXParaX=13-
DeB 131 -1-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=14- XthisXParaX=14-
DeB 131 -1-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. DeB 131 -2-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=15- XthisXParaX=15-
DeB 131 -1-It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. DeB 131 -2-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. DeB 131 -3-In this respect, it has as much affinity to a legislative assembly as to an executive council. DeB 131 -4-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.

DeB 128 C 18Mod=18- FP2View=48- ParaX=16- XthisXParaX=16-
DeB 131 -1-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.

Beginning of Federalist Paper No. 48

Close

NO. 49    Method of Guarding Against the Encroachments of Any One Department of Government by Appealing to the People Through a Convention
NO. 50    Periodic Appeals to the People Considered
NO. 51    The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments
NO. 52    The House of Representatives
NO. 53    The Same Subject Continued: The House of Representatives
NO. 54    The Apportionment of Members Among the States
NO. 55    The Total Number of the House of Representatives
NO. 56    The Total Number of the House of Representatives
NO. 57    The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation
NO. 58    Objection That The Number of Members Will Not Be Augmented as the Progress of Population Demands Considered
NO. 59    Concerning the Power of Congress to Regulate the Election of Members
NO. 60    The Same Subject Continued: Concerning the Power of Congress to Regulate the Election of Members
NO. 61    The Same Subject Continued (Concerning the Power of Congress to Regulate the Election of Members)
NO. 62    The Senate
NO. 63    The Senate Continued
NO. 64    The Powers of the Senate
NO. 65    The Powers of the Senate Continued
NO. 66    Objections to the Power of the Senate To Set as a Court for Impeachments Further Considered
NO. 67    The Executive Department
NO. 68    The Mode of Electing the President
NO. 69    The Real Character of the Executive
NO. 70    The Executive Department Further Considered
NO. 71    The Duration in Office of the Executive.
NO. 72    The Same Subject Continued, and Re-Eligibility of the Executive Considered
NO. 73    The Provision For The Support of the Executive, and the Veto Power
NO. 74    The Command of the Military and Naval Forces, and the Pardoning Power of the Executive
NO. 75    The Treaty Making Power of the Executive
NO. 76    The Appointing Power of the Executive
NO. 77    The Appointing Power Continued and Other Powers of the Executive Considered
NO. 78    The Judiciary Department
NO. 79    The Judiciary Department Continued
NO. 80    The Powers of the Judiciary
NO. 81    The Judiciary Continued, and the Distribution of the Judicial Authority
NO. 82    The Judiciary Continued
NO. 83    The Judiciary Continued in Relation to Trial by Jury
NO. 84    Certain General and Miscellaneous Objections to the Constitution Considered and Answered.
NO. 85    Concluding Remarks
NO. 449   
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