correctly about the means of obtaining that good.1 In the construction of a governmental system we ought, therefore, so to dispose the organs of government as to enable us to consult the reason of the people; not their temporary, transient emotions, but their deliberate judgment. And there should be certain persons whose duty it is to stem the tide of popular passion, and give cooler judgment opportunity to assert itself. One of the most important organs for the accomplishment of this purpose is the executive department of the gov

ernment.

On the whole, the Federalist's discussion of the legislative and executive powers indicates a decided change in political theory since the days when the legislature had been implicitly trusted and the executive degraded and despised. There is now manifested a decided suspicion of the legislature, and great anxiety as to the possible extent of its encroachments. On the other hand, there is a strong disposition to revive the executive department and intrust it with substantial powers.

As to the judicial department, the general philosophy of the Federalist was as follows. The judiciary was regarded as always the least dangerous to the liberties of the people. This department has neither force nor will, as have the other two organs, but possesses the power of judgment only. Hence the maintenance of good gov2 No. 77 ff.

1 No. 70.

ernment has never been much imperilled by the courts, unless in combination with one of the other two departments. There is, however, great need that the judiciary be kept as far as possible independent in its position. This is particularly important in a country which is governed under a limited Constitution. Here the function of the court is to act as final interpreter of the Constitution, and to decide upon the conformity of all laws with that instrument. This does not mean, explains the Federalist, that the judicial is superior to the legislative power, but that the authority of the people is superior to both. For this reason, then, and in order to protect the rights of individuals against governmental oppression, the tenure of the judges should be permanent, in order that they may possess the proper independence. As in a despotic country this kind of a tenure serves as a barrier against the prince, so in a republic it is a useful protection against the encroachments of a despotic legislative body.

The Federalist recognizes, as every observer of political phenomena must, the great difficulty in securing an energetic, stable government, and at the same time preserving the liberties of the people.1 The problem of the correct relation of liberty and authority is perennial. If governmental power is not granted in large measure, the safety of the state is endangered. If such authority is granted, 1 No. 36.

there is likelihood of its abuse. The great argument against the Constitution was, that it would endanger the liberties of the people.

Admitting, however, that governmental power is liable to such abuse, the defence was made that inasmuch as confidence must be placed somewhere, it was better to risk its abuse by regularly constituted authorities than to embarrass the government and endanger the public safety by the imposition of unwise restraints upon all authorities. The American people, said the Federalist, cannot be "argued into anarchy" by objections raised against all energetic government. Although the necessity of popular vigilance over rights and liberties is recognized, it must be remembered that, however useful jealousy may be in a republic, "yet when, like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects." 1 Love of liberty, then, does not always require a bilious jealousy of all government.

The Federalist was not an advocate of bills of rights such as were found in the Revolutionary state declarations. The preamble to the Constitution, it was said, is "a better recognition of popular rights, than volumes of those aphorisms, which make the principal figure in several of our state bills of rights, and which would sound much better

1 No. 63.

V

in a treatise of ethics, than in a constitution of government." 1 No statement better expresses the marked change of attitude since the days of the Revolution. In 1776, to have referred to the declarations of rights as "aphorisms" which properly belong only to the domain of ethics, would have been almost equivalent to high treason, but in a few years the inalienable rights of man are thus lightly passed over.

Furthermore, it was argued that bills of rights are in general inapplicable to constitutional governments. They originated as agreements between ruler and subjects - abridgments of royal prerogative. In a popular government, however, "the people surrender nothing; and as they retain everything, they have no need of particular reservations." 2 Such specific restrictions have no application to governments which are founded directly on the act of the people and "executed by their immediate servants and representatives." This is true of all types of popular government, but is more than ever applicable to a confederate government, where the central authority has no power except that conferred upon it by the Constitution. In such a case the Constitution is itself the "bill of rights of the Union," and a separate declaration would be not only unnecessary but dangerous. "Why declare things should not be done, which there is no power to do?" 3

But the Federalist goes beyond this, maintaining that the whole scheme of securing liberty by mere constitutional restraints is a mistaken one. All such precautions as these are mere paper barriers vainly raised up against the spirit of encroachment.1 The true guaranty of liberty in a republican government lies in the fact that the political power belongs to the representatives chosen by the people themselves.2 The government is in the hands of agents who derive their power from and are responsible to the people. If these chosen delegates betray their trust, there is then no resource left but the exertion of that “ original right of self-defence, which is paramount to all positive forms of government." The guaranty that free institutions will be maintained, rests in the last analysis on the "general genius of the government." This alone can be relied upon for enduring results: "particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them." 3 It is the spirit and temper of the people in which confidence must be placed, rather than the written word embodied in an instrument of government.

66

In judging the political theory of the Federalist, it cannot escape notice that the "natural-right" philosophy lies at the basis of its system. But no more can it pass unnoticed, that the doctrines of natural rights and the social compact, while 8 No. 83.

1 No. 47.

2 No. 28.