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others members of the executive council within the seven preceding years. One of them had been speaker, and a number of others, distinguished membors of the legislative assembly, within the same period.
Third. Every page of their proceedings witnesses the effect of all these circumstances on the temper of thoir deliberations. Throughout the continuance of the council, it was split into two fixod and violont parties. The fact is acknowledgod and lamented by themselves. Had this not been the case, the face of their proceedings exbibit a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns. Every unbiassed observer, may infer without danger of mistake, and at the same time, without meaning to reflect on either party, or any individuals of either party, that unfortunately passion, not reason, must have presided over their decisions. When mon exercise their reason coolly and freely, on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.
Fourth. It is at least problematical, whether the decisions of tbis body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.
Fifth. I, bave never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, bave had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, that in one instance, the cotemporary legislature denied the constructions of the council, and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its researches, the existence of the disease; and by its example, the inefficacy of the remedy.
This conclusion cannot be invalidatod by alloging, that tho state in which the experiment was made, was at that crisis, and
had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch, the same state will be free from parties? Is it to bo prosumed that any other state, at the samo, or any other given period, will be exempt from them ? . Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either an universal alarm for the public safety, or an absolute extinction of liberty.
Were the precaution taken of excluding from the assemblies elected by the people to revise the preceding administration of the government, all persons who should have been concerned in the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined; they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.
NEW YORK, FEBRUARY 8, 1788.
THE SAME SUBJECT CONTINUED, WITH THE SAME VLEW, AND CON
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, y be the means of keeping each other in their proper places. Without presuming to undertake a full developement 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. V 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 bands to be essential to tbe preservation of liberty, it is evident that ench-departnturt should bave 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. PerTaps such a plan of constructing tho several departmonts,
would be loss difficult in practico, than it may in contemplation appear. Some difficulties, however, and some additional expenso, would attend the execution of it. Some deviations, therefore, from the principlo must be admitted. In the constitution of the judiciary department in particular, it might be inexpodiont to insist rigorously on tho principlo; 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. Wore the exocutive 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 motivos, to resist encroachments of the others. The provision for defonco must in this, as in all othor cases, be made commensurate to the dangor 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 gov. . ernment. But what is government itself, but the greatest of all reflections on human nature If men were angels. ne gov.
ernment would be nocessary. If angels were to govorn men, neither external nor internal controls on government would be necessary. In framing a government, which is to be adminigtored by men over mon, the great difficulty lics 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 peoplo 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, tho 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 check on the other;(that the private interest of every individual, may bo a centinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers
of the state. d... But it is not possible to givo to each dopartment an equal power of self defonce. In republican government, the legislative' authority necessarily predominates. The comedy for this inconveniency is, to divide the
legislature into different branches; and to render them by Váfferent modes vof 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 cxecutivo may roquire, on the other hand, that it should be fortified. ( An absoluto negative on the legislature, appears, at first
( view, to be the natural defonce with which the executive magistrate should be armed. But perhaps it would be neither altogether safe, nor alone Bufficient. On ordinary occasions, it might not be exerted with the requisite firmness; and on ex