POL203Y1 Chapter Notes -Montesquieu, Mixed Government, Comity

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11 Apr 2012

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POL203Y1: U.S. Government and Politics October 21st, 2011.
The Federalist Papers #48: These Departments Should Not Be So Far
Separated as to Have No Constitutional Control Over Each Other
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
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POL203Y1: U.S. Government and Politics October 21st, 2011.
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
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
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