FEDERALIST No. 51 The Structure of the Government Must Furnish the Proper Checks andBalances Between the Different Departments.
For the Independent Journal. Wednesday, February 6, 1788. MADISON
TO WHAT expedient, then, shall we finally resort, for maintaining 실천 안에서in practice(실질적으로) the necessary 분할partition(분립) of power among the several departments, as laid down in the 컨스티투션Constitution(헌법)? The only answer that can be given is, that as all these 외적인 조항들exterior provisions(표면상의 규정들) are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several 컨스티튜션된constituent(정부를 구성하는) parts may, by their 쌍무적인mutual(상호) relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development 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 원리들principles(원칙) and structure of the government planned by the 컨스티투셔널 협의convention(헌법제정회의).
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 hands to be essential to the preservation of liberty, it is evident that each department should have a 의지will(목적) of its own; and consequently should be so constituted that the members of each should have as little 행위성agency(영향력) 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 최상위의supreme(최고) executive, legislative, and judiciary 집행관들magistracies(수반) should be drawn from the 동일한same(공통된) 근본기초fountain(원천) of 권한authority(권위), the 인민people(국민), through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in 구상contemplation(생각) appear. Some difficulties, however, and some additional expense would attend the 집행execution(시행) of it. Some deviations, therefore, from the principle must be admitted. In the 컨스티투션Constitution(헌법) of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: 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.
● 매디슨은 몽테스키외적인 3 권력들의 분리 이념idea이 하나의 원리로써는 옳지만, 실재현실 안에서의 실천 안에서의 컨스티튜트에서는 일정한 벗어남들deviations이 필연적이라고 생각했군요.
이 51편으로부터 아래 53편까지, 계속해서, 실재현실 안에서의 권력들의 분리 원리의 벗어남을 다룹니다. 이 글토막 안에서는 먼저 재판의 권력들 안에서의 벗어남이 필연적인 까닭을 두 개 얘기합니다.
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 에 부속된annexed to(에 대한) their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
● 권력들의 분리를 실현하려면, <임명하는 권한의 근본기초 상에서 권력들 서로간의 행위성agency이 없어야 함>을 앞에서 밝혔다면, 이 글토막 안에서는 <공직에 부속된 봉급을 위한 부문들 사이의 독립>을 밝힙니다.
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 컨스티튜션의constitutional(헌법적) means and 인격적personal(개인적) motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the 사람man(개인) must be connected with the 컨스티튜션의constitutional(헌법적) rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In 프레임짜기framing(구성하는) a government which is to be administered by men over men, the great difficulty lies 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 인민people(국민) is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
● 한 권력이 다른 권력을 기어오르지encroach 못하게 하려면, 컨스티튜션의 라이트와 인격적 동기들, 두가지를 집행자에게 주어야 한다고 매디슨은 봅니다. 정부통치는 첫째는 통치받는이들을 정부가 통치해야한다는 점, 둘째는 정부 자체가 자기를 통제해야 한다는 점, 이 둘이 알맞게 컨스티튜션되지 앟는다면, 권력들의 남용abuse이 필연적이게 된다는 것이죠. 매디슨의 통찰에 동의합니다.
This policy of supplying, by opposite and rival interests, the 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 a check on the other--that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
● 권력들의 분리 및 상호감시의 설계는 동양에도 있습니다. 그러나 동양적 설계 원리는 <내성외왕적 양심> 곧 내면적 절대도덕성에 근본기초해서, 각자의 분수에 맞게, 공적 올바름이 사사로운 사적 이득과 욕심을 통제하도록 해야 한다고 호소하지요. 퍼블릭센트릭하다는 뜻입니다.
그러나 이 글토막이 잘 보여주듯이, 근대 서양의 설계원리는 그러한 퍼블릭센트릭한 내면적 도덕성이 아니라, <가즌 개인의 사적 이득관계가 공적 올바룸들을 감시하는 파수꾼이 되도록> 하는 원리입니다. 이것이 바로 내가 충격받는, 근대 서양의 프라이빗센트릭한 이념입니다.
But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily 앞서-주도적predominates(우월성). The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of 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 executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the 컨스티투션의constitutional(헌법적인) rights of the former, without being too much detached from the rights of its own department?
If the principles on which these observations are founded be 떳떳한just(정당한), as I persuade myself they are, and they be applied as a criterion to the several State 컨스티투션들Constitutions(헌법), and to the federal 컨스티투션Constitution(헌법) it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very 이득관계있는interesting(흥미로운) 시점point of view(관점view).
First. In a single republic, all the power surrendered by the 인민people(국민) is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the 인민people(국민) is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the 인민people(국민). The different governments will control each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the 불가-떳떳함injustice(불의) of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this 사악함evil(해악): the one by creating a will in the community independent of the majority--that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an 떳떳치못한unjust(부당한) combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the 떳떳치못한unjust(부당한) views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of 인민people(국민) comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. 떳떳함Justice(정의) is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the 인민people(국민) would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of 떳떳함Justice(정의) and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.
● 마지막 글토막은 매우 설득력이 있습니다. 광범위한 영토를 지닌 공화주의적 통일체가 됨으로써 그리고 사회를 다양한 이득관계들, 계급들, 정당들 안을향해 쪼개지게함으로써, <다수의 소수에 대한 떳떳치못한unjust 폭력을 어렵게 만들고, 소수의 라이트들도 안전보장하기가 쉬워진다>는 점, 이게 안되는 사회의 경우, <강자가 약한 개인이 강자의 폭력에 맞서 안전보장받지 못하는 사회는 무정부로 흐르게 된다>는 점을 논증하기 때문입니다.
아직 잘 모르지만, 이러한 생각은 <프리덤 에즈 넌-도미네이션>으로 보아도 되지 않을까 합니다. 사회는 다양한 이득관계를 가진 시민들의 부분들로 쪼개지게 만들어야 하는구나. 그리고 이들 시민들의 부분들이 서로를 견제하고, 충돌하고, 갈등하도록 해야만, 강자의 폭력, 다수의 억압이 덜하게 되는구나. 그리고 이러한 서로 다른 부분들 사이의 비적대적인 갈등이 사회를 진보시키며, 생각과 표현의 자유가 이를 위해서 실존하는구나. 이러한 점들을 새삼스럽게 깨닫게 됩니다.
PUBLIUS
