From the New York Packet. Friday, February 1, 1788.
MADISON
To the People of the State of New York:
IT WAS shown in the last paper that the political apothegm there examined does not require that the legislative1, 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 maxim2 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 indirectly3, 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 discriminating4, 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 defense5 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 founders6 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 prerogative7 of an hereditary8 magistrate9, supported and fortified10 by an hereditary branch of the legislative authority. They seem never to have recollected11 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 prerogatives13 are placed in the hands of an hereditary monarch14, the executive department is very justly regarded as the source of danger, and watched with all the jealousy15 which a zeal16 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 intrigues17 of their executive magistrates18, tyranny may well be apprehended19, 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 intrepid21 confidence in its own strength; which is sufficiently22 numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable23 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.
The legislative department derives24 a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible25 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 landmarks26 still less uncertain, projects of usurpation12 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 discretion27, and in all a prevailing28 influence, over the pecuniary29 rewards of those who fill the other departments, a dependence30 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 attentive31 to, the course of public administrations. I might collect vouchers32 in abundance from the records and archives of every State in the union. But as a more concise33, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested34 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 fully20 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 precisely35 the definition of despotic government. It will be no alleviation36, 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 transcend37 their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance38 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 their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition39 is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings40 into the form of acts of Assembly, which will render them obligatory41 on the other branches. They have accordingly, IN MANY instances, DECIDED42 RIGHTS which should have been left to JUDICIARY CONTROVERSY43, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL44 AND FAMILIAR."
The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors45, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was "to inquire whether the constitution had been preserved inviolate46 in every part; and whether the legislative and executive branches of government had performed their duty as guardians47 of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution." 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 enumerated48, and to the truth of most of which both sides in the council subscribed49, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances.
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 previously50 printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper51 acts of legislature.
The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution.
The salaries of the judges, which the constitution expressly requires to be fixed53, had been occasionally varied54; and cases belonging to the judiciary department frequently drawn55 within legislative cognizance and determination.
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. Some of them, it will be found, may be imputable56 to peculiar57 circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government.
It appears, also, that the executive department had not been innocent of frequent breaches58 of the constitution. 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; SECOND, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; THIRD, the executive department of Pennsylvania is distinguished59 from that of the other States by the number of members composing it. In this respect, it has as much affinity60 to a legislative assembly as to an executive council. And being at once exempt61 from the restraint of an individual responsibility for the acts of the body, and deriving62 confidence from mutual63 example and joint64 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.
The conclusion which I am warranted in drawing from these observations is, that a mere65 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.
PUBLIUS
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1
legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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maxim
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| n.格言，箴言 | |
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3
indirectly
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| adv.间接地，不直接了当地 | |
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4
discriminating
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| a.有辨别能力的 | |
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5
defense
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| n.防御，保卫；[pl.]防务工事；辩护，答辩 | |
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founders
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| n.创始人( founder的名词复数 ) | |
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7
prerogative
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| n.特权 | |
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hereditary
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| adj.遗传的，遗传性的，可继承的，世袭的 | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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10
fortified
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| adj. 加强的 | |
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11
recollected
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| adj.冷静的；镇定的；被回忆起的；沉思默想的v.记起，想起( recollect的过去式和过去分词 ) | |
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12
usurpation
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| n.篡位；霸占 | |
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13
prerogatives
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| n.权利( prerogative的名词复数 )；特权；大主教法庭；总督委任组成的法庭 | |
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14
monarch
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| n.帝王，君主，最高统治者 | |
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15
jealousy
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| n.妒忌，嫉妒，猜忌 | |
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16
zeal
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| n.热心，热情，热忱 | |
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17
intrigues
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| n.密谋策划( intrigue的名词复数 )；神秘气氛；引人入胜的复杂情节v.搞阴谋诡计( intrigue的第三人称单数 )；激起…的好奇心 | |
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18
magistrates
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| 地方法官，治安官( magistrate的名词复数 ) | |
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19
apprehended
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| 逮捕，拘押( apprehend的过去式和过去分词 )； 理解 | |
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20
fully
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| adv.完全地，全部地，彻底地；充分地 | |
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21
intrepid
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| adj.无畏的，刚毅的 | |
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22
sufficiently
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| adv.足够地，充分地 | |
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23
incapable
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| adj.无能力的，不能做某事的 | |
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24
derives
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| v.得到( derive的第三人称单数 )；（从…中）得到获得；源于；（从…中）提取 | |
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25
susceptible
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| adj.过敏的，敏感的；易动感情的，易受感动的 | |
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landmarks
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| n.陆标( landmark的名词复数 )；目标；（标志重要阶段的）里程碑 ~ (in sth)；有历史意义的建筑物（或遗址） | |
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27
discretion
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| n.谨慎；随意处理 | |
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28
prevailing
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| adj.盛行的；占优势的；主要的 | |
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29
pecuniary
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| adj.金钱的；金钱上的 | |
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30
dependence
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| n.依靠，依赖；信任，信赖；隶属 | |
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31
attentive
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| adj.注意的，专心的；关心(别人)的，殷勤的 | |
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32
vouchers
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| n.凭证( voucher的名词复数 )；证人；证件；收据 | |
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33
concise
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| adj.简洁的，简明的 | |
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34
attested
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| adj.经检验证明无病的，经检验证明无菌的v.证明( attest的过去式和过去分词 )；证实；声称…属实；使宣誓 | |
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35
precisely
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| adv.恰好，正好，精确地，细致地 | |
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36
alleviation
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| n. 减轻，缓和，解痛物 | |
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37
transcend
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| vt.超出，超越(理性等)的范围 | |
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38
ordinance
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| n.法令；条令；条例 | |
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39
opposition
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| n.反对，敌对 | |
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40
proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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41
obligatory
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| adj.强制性的，义务的，必须的 | |
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42
decided
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| adj.决定了的，坚决的；明显的，明确的 | |
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43
controversy
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| n.争论，辩论，争吵 | |
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44
habitual
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| adj.习惯性的；通常的，惯常的 | |
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45
censors
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| 删剪（书籍、电影等中被认为犯忌、违反道德或政治上危险的内容）( censor的第三人称单数 ) | |
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46
inviolate
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| adj.未亵渎的，未受侵犯的 | |
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47
guardians
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| 监护人( guardian的名词复数 )； 保护者，维护者 | |
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48
enumerated
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| v.列举，枚举，数( enumerate的过去式和过去分词 ) | |
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49
subscribed
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| v.捐助( subscribe的过去式和过去分词 )；签署，题词；订阅；同意 | |
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50
previously
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| adv.以前，先前（地） | |
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51
improper
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| adj.不适当的，不合适的，不正确的，不合礼仪的 | |
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52
usurped
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| 篡夺，霸占( usurp的过去式和过去分词 )； 盗用； 篡夺，篡权 | |
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53
fixed
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| adj.固定的，不变的，准备好的；(计算机)固定的 | |
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54
varied
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| adj.多样的，多变化的 | |
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55
drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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56
imputable
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| adj.可归罪的，可归咎的，可归因的 | |
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57
peculiar
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| adj.古怪的，异常的；特殊的，特有的 | |
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58
breaches
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| 破坏( breach的名词复数 )； 破裂； 缺口； 违背 | |
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59
distinguished
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| adj.卓越的，杰出的，著名的 | |
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60
affinity
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| n.亲和力，密切关系 | |
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61
exempt
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| adj.免除的；v.使免除；n.免税者，被免除义务者 | |
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62
deriving
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| v.得到( derive的现在分词 )；（从…中）得到获得；源于；（从…中）提取 | |
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63
mutual
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| adj.相互的，彼此的；共同的，共有的 | |
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64
joint
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| adj.联合的，共同的；n.关节，接合处；v.连接，贴合 | |
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65
mere
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| adj.纯粹的；仅仅，只不过 | |
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