eration. Usurpations of power have been notoriously assumed by particular departments in each; and it has often happened, that these very usurpations have received popular favour and indulgence.1 § 530. In the next place, in order to preserve in full vigour the constitutional barrier between each department, when they are entirely separated, it is obviously indispensable, that each should possess equally, and in the same degree, the means of self-protection. Now, in point of theory, this would be almost impracticable, if not impossible; and in point of fact, it is well known, that the means of self-protection in the different departments are immeasurably disproportionate. The judiciary is incomparably the weakest of either; and must for ever, in a considerable measure, be subjected to the legislative power. And the latter has, and must have, a controlling influence over the executive power, since it holds at its own command all the resources, by which a chief magistrate could make himself formidable. It possesses the power over the purse of the nation, and the property of the people. It can grant, or withhold supplies; it can levy, or withdraw taxes; it can unnerve the power of the sword by striking down the arm, which wields it. § 531. De Lolme has said, with great emphasis, "It is, without doubt, absolutely necessary for securing the constitution of a state, to restrain the executive power; but it is still more necessary to restrain the legislative. What the former can duly do by successive steps, (I mean subvert the laws,) and through a longer, or a shorter train of enterprises, the latter does in a moment. As its bare will can give being to the laws, so its bare will can also annihilate them; and if I may be permitted the expression, the legislative power can change the constitution, as God created the light. In order, therefore, to insure stability to the constitution of a state, it is indispensably necessary to restrain the legislative authority. But, here, we must observe a difference between the legislative and executive powers. The latter may be confined, and even is more easily so, when undivided. The legislative, on the contrary, in order to its being restrained, should absolutely be divided." 1 1 The Federalist, No. 48. See also The Federalist, No. 38, 42. § 532. The truth is, that the legislative power is the great and overruling power in every free government. It has been remarked with equal force and sagacity, that the legislative power is every where extending the sphere of its activity, and drawing all power into its impetuous vortex. The founders of our republics, wise as they were, under the influence and the dread of the royal prerogative, which was pressing upon them, never for a moment seem to have turned their eyes from the immediate danger to liberty from that source, combined, as it was, with an hereditary authority, and an hereditary peerage to support it. They seem never to have recollected the danger from legislative usurpation, which, by ultimately assembling all power in the same hands, must lead to the same tyranny, as is threatened by executive usurpations. The representatives of the people will watch with jealousy every encroachment of the executive magistrate, for it trenches upon their own authority. But, who shall watch the encroachment of these representatives themselves? Will they be as jealous of the exercise of power by themselves, as by others? In a representative republic, where the executive magistracy is carefully limited, both in the extent and 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 intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions, which actuate the multitude; yet not so numerous, as to be incapable of pursuing the objects of its passions by means, which reason prescribes; it is easy to see, that the tendency to the usurpation of power is, if not constant, at least probable; and that it is against the enterprising ambition of this department, that the people may well indulge all their jealousy, and exhaust all their precautions.1 1 De Lolme, B. 2, ch. 3. § 533. There are many reasons, which may be assigned for the engrossing influence of the legislative department. In the first place, its constitutional powers are more extensive, and less capable of being brought within precise limits, than those of either of the other departments. The bounds of the executive authority are easily marked out, and defined. It reaches few objects, and those are known. It cannot transcend them, without being brought in contact with the other departments. Laws may check and restrain, and bound its exercise. The same remarks apply with still greater force to the judiciary. The jurisdiction is, or may be, bounded to a few objects or persons; or, however general and unlimited, its operations are necessarily confined to the mere administration of private and public justice. It cannot punish without law. It cannot create controversies to act upon. It can decide only upon rights and cases, as they are brought by others before it. It can do nothing for itself. It must do every thing for others. It must obey the laws; and if it corruptly administers them, it is subjected to the power of impeachment. On the other hand, the legislative power, except in the few cases of constitutional prohibition, is unlimited. It is for ever varying its means and its ends. It governs the institutions, and laws, and public policy of the country. It regulates all its vast interests. It disposes of all its property. Look but at the exercise of two or three branches of its ordinary powers. It levies all taxes; it directs and appropriates all supplies; it gives the rules for the descent, distribution, and devises of all property held by individuals. It controls the sources and the resources of wealth. It changes at its will the whole fabric of the laws. It moulds at its pleasure almost all the institutions, which give strength, and comfort, and dignity to society. 1 The Federalist, No. 48, 49. § 534. In the next place, it is the direct, visible representative of the will of the people in all the changes of times and circumstances. It has the pride, as well as the power of numbers.1 It is easily moved and steadily moved by the strong impulses of popular feeling, and popular odium. It obeys, without reluctance, the wishes and the will of the majority for the time being. The path to public favour lies open by such obedience; and it finds not only support, but impunity, in whatever measures the majority advises, even though they transcend the constitutional limits. It has no motive, therefore, to be jealous, or scrupulous in its own use of power; and it finds its ambition stimulated, 1 "Numerous assemblies," says Mr. Turgot, " are swayed in their debates by the smallest motives." VOL. II. 3 and its arm strengthened by the countenance, and the courage of numbers. These views are not alone those of men, who look with apprehension upon the fate of republics; but they are also freely admitted by some of the strongest advocates for popular rights, and the permanency of republican institutions.1 Our domestic history furnishes abundant examples to verify these suggestions. § 535. If, then, the legislative power possesses a decided preponderance of influence over either or both of the others; and if, in its own separate structure, it furnishes no effectual security for the others, or for its own abstinence from usurpations, it will not be sufficient to rely upon a mere constitutional division of the powers to insure our liberties. § 536. What remedy, then, can be proposed, adequate for the exigency? It has been suggested, that an appeal to the people, at stated times, might redress any inconveniences of this sort. But, if these be frequent, it will have a tendency to lessen that respect for, and confidence in the stability of our constitutions, which is so essential to their salutary influence. If it be true, that all governments rest on opinion, it is no less true, that the strength of opinion in each individual, and its practical influence on his conduct, depend much upon the number, which he supposes to have entertained the same opinion. There is, too, no small danger in disturbing the public tranquillity by a fre 4 1 See Mr. Jefferson's very striking remarks in his Notes on Virginia, p. 195, 196, 197, 248. In December, 1776, and again, June, 1781, the legislature of Virginia, under a great pressure, were near passing an act appointing a dictator. Ib. p. 207. 2 The Federalist, No. 48, 49. 3 See Jefferson's Notes on Virginia, 195, 196, 197. 4 The Federalist, No. 48. |