« PreviousContinue »
that those measures were deemed constitutional by a majority of the States, and as such received the most hearty concurrence of the State authorities. It is also true that some measures whose constitutionality has been doubted or denied by some States have, at other times, upon re-examination, been approved of by the same States. Not a single measure has ever induced three quarters of the States to adopt any amendment to the Constitution founded upon the notion of usurpation.1 Wherever an amendment has taken place it has been to clear a real doubt, or obviate an inconvenience established by our experience. And this very power of amendment, at the command of the States themselves, forms the great balance-wheel of our system, and enables us silently and quietly to redress all irregularities, and to put down all practical oppressions. And what is not a little remarkable in the history of the government, is, that two measures, which stand confessedly upon the extreme limits of constitutional authority, and carry the doctrine of constructive power to the last verge, have been brought forward by those who were the opponents of the Constitution, or the known advocates for its most restricted construction. In each case, however, they received the decided support of a great majority of all the States of the Union ; and the constitutionality of them is now universally acquiesced in, if not universally affirmed. We allude to the unlimited embargo, passed in 1807, and the purchase and admission of Louisiana into the Union, under the treaty with France in 1803. That any act has ever been done by
1 If there be any exception, it is the decision as to the suability of the States. But even this deserves not the name of usurpation, for the case falls clearly within the words of the Constitution.
2 4 Elliot's Debates, 257. President Jefferson himself, under whose administration both these measures were passed, which were, in the highest sense, his own measures, was deliberately of opinion that an amendment of the Constitution was necessary to authorize the general government to admit Louisiana into the Union. Yet he ratified the very treaty which secured this right; and confirmed the laws which gave it effect. 4 Jefferson's Corresp. 1, 2, 3. A more particular consideration of these subjects will naturally arise in some future discussions. [See Cocke's Constitutional History, p. 209, 234. This author, alluding to this acquisition, and to Mr. Jefferson's opinion upon the power to make it, has not failed to remark the readiness of every party in power to exercise greater authority than they were willing to concede that the government possessed when in the hands of their opponents; and it might thence be argued that the tendency to a constant accretion of Federal authority was to be expected, if not inevitable. Using the terms "Federal” and “Republican ” in their original sense, as applied to those who were respectively for a liberal and a strict construction of the powers of government, it might, by.modifying a little Mr. Jefferson's famous aphorism, be said, “Out of power, we are all Republicans; in power, we are all Federalists.”]
the general government, which even a majority of the States in the Union have deemed a clear and gross usurpation, may be safely denied. On the other hand, it is certain that many powers positively belonging to the general government have never yet been put into full operation. So that the influence of State opinions and State jealousies and State policy may be clearly traced throughout the operations of the general government, and especially in the exercise of the legislative powers. This furnishes no just ground of complaint or accusation. It is right that it should be
But it demonstrates that the general government has many salutary checks silently at work to control its movements; and that experience coincides with theory in establishing that it is calculated to secure “the blessings of liberty to ourselves and our posterity.”
$ 517. If, upon a closer survey of all the powers given by the Constitution, and all the guards upon their exercise, we shall perceive still stronger inducements to fortify this conclusion, and to increase our confidence in the Constitution, may we not justly hope that every honest American will concur in the dying expression of Father Paul, “ Esto perpetua,” may it be perpetual ?
DISTRIBUTION OF POWERS.
§ 518. In surveying the general structure of the Constitution of the United States, we are naturally led to an examination of the fundamental principles on which it is organized for the purpose of carrying into effect the objects disclosed in the preamble. Every government must include within its scope, at least if it is to possess suitable stability and energy, the exercise of the three great powers upon which all governments are supposed to rest, viz. the executive, the legislative, and the judicial powers. The manner and extent in which these powers are to be exercised, and the functionaries in whom they are to be vested, constitute the great distinctions which are known in the forms of government. In absolute governments the whole executive, legislative, and judicial powers are, at least in their final result, exclusively confined to a single individual ; and such a form of government is denominated a despotism, as the whole sovereignty of the state is vested in him. If the same powers are exclusively confided to a few persons, constituting a permanent sovereign council, the government may be appropriately denominated an absolute or despotic aristocracy. If they are exercised by the people at large in their original sovereign assemblies, the government is a pure and absolute democracy. But it is more common to find these powers divided, and separately exercised by independent functionaries, the executive power by one department, the legislative by another, and the judicial by a third ; and in these cases the government is properly deemed a mixed one ; a mixed monarchy, if the executive power is hereditary in a single person ; a mixed aristocracy, if it is hereditary in several chieftains or families; and a mixed democracy or republic, if it is delegated by election, and is not hereditary. In mixed monarchies and aristocracies some of the functionaries of the legislative and judicial powers are, or at least may be, hereditary. But in a representative republic all power emanates from the people, and is exercised by their choice, and never extends beyond the lives of the individuals, to whom it is intrusted. It may be intrusted for any shorter period; and then it returns to them again, to be again delegated by a new choice.
$ 519. In the convention which framed the Constitution of the United States, the first resolution adopted by that body was, that “ a national government ought to be established, consisting of a supreme legislative, judiciary, and executive.” i And from this fundamental proposition sprung the subsequent organization of the whole government of the United States. It is, then, our duty to examine and consider the grounds on which this proposition rests, since it lies at the bottom of all our institutions, State as well as national.
$ 520. In the establishment of a free government, the division of the three great powers of government, the executive, the legislative, and the judicial, among different functionaries, has been a favorite policy with patriots and statesmen. It has by many been deemed a maxim of vital importance, that these powers should forever be kept separate and distinct. And accordingly we find it laid down with emphatic care in the bill of rights of several of the State constitutions. In the constitution of Massachusetts, for example, it is declared, that “ in the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them ; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not of men."2 Other declarations of a similar character are to be found in other State constitutions.3
$ 521. Montesquieu seems to have been the first who, with a truly philosophical eye, surveyed the political truth involved in
1 Journals of Convention, 82, 83, 139, 207, 215. 2 Bill of Rights, article 30.
3 The Federalist, No. 47. It has been remarked by Mr. J. Adams, that the practicability or the duration of a republic, in which there is a governor, a senate, and a house of representatives, is doubted by Tacitus, though he admits the theory to be laudable. Cunctas nationes et urbes populus, aut priores, aut singuli regunt. Delecta ex his et constituta reipublicæ forma laudari facilius quam inveniri, vel si evenit, haud diuturna esse potest. Tacit. Ann. lib. 14. Cicero asserts, “Statuo esse optime constitutam rempublicam, quæ ex tribus generibus illis, regali, optimo, et populari, modice confusa.” Cic. Frag. de Repub. 1 Adams's Amer. Constitutions, Preface, 19. The British government perhaps answers more nearly to the form of government proposed by these writers, than what we in modern times should esteem strictly a republic.
this maxim in its full extent, and gave to it a paramount importance and value. As it is tacitly assumed, as a fundamental basis in the Constitution of the United States, in the distribution of its powers, it may be worth inquiry, what is the true nature, object, and extent of the maxim, and of the reasoning by which it is supported. The remarks of Montesquieu on this subject will be found in a professed commentary upon the constitution of England. 1
When," says he, “the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, or execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control ; for the judge would be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything were the same man, or the same body, whether of the nobles or of the people, to exercise these three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals." 2
$ 522. The same reasoning is adopted by Mr. Justice Blackstone, in his Commentaries. "In all tyrannical governments, says he, “the supreme magistracy, or the right both of making and of enforcing laws, is vested in the same man, or one and the same body of men ; and wherever these two powers are united together, there can be no public liberty. The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But where the legislative and executive authority are in distinct hands, the former will take care not to intrust the latter with so large a power as may tend to the subversion of its own independence, and
1 Montesquieu, B. 11, ch. 6.
2 M. Turgot uses the following strong language: “ The tyranny of the people is the most cruel and intolerable, because it leaves the fewest resources to the oppressed. A despot is restrained by a sense of his own interest. He is checked by remorse or public opinion. But the multitude never calculate; the multitude are never checked by remorse, and will even ascribe to themselves the highest honor when they deserve only disgrace.” Letter to Dr. Price.
8 1 Black. Comm. 146.