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with the people by the constant appeals and solicitations, and private intercourse, which belong to all the other departments of government. It is seen only in controversies, or in trials and punishments. Its rigid justice and impartiality give it no claims to favour, however they may to respect. It stands solitary and unsupported, except by that portion of public opinion, which is interested only in the strict administration of justice. It can rarely secure the sympathy, or zealous support, either of the executive, or the legislature. If they are not (as is not unfrequently the case) jealous of its prerogatives, the constant necessity of scrutinizing the acts of each, upon the application of any private person, and the painful duty of pronouncing judgment, that these acts are a departure from the law or constitution, can have no tendency to conciliate kindness, or nourish influence. It would seem, therefore, that some additional guards would, under such circumstances, be necessary to protect this department from the absolute dominion of the others. Yet rarely have any such guards been applied; and every attempt to introduce them has been resisted with a pertinacity, which demonstrates, how slow popular leaders are to introduce checks upon their own power; and how slow the people are to believe, that the judiciary is the real bulwark of their liberties. In some of the states the judicial department is partially combined with some branches of the executive and legislative departments; and it is believed, that in those cases, it has been found no unimportant auxiliary in preserving a wholesome vigour in the laws, as well as a wholesome administration of public justice.

§ 542. How far the constitution of the United States, in the actual separation of these departments, and the

occasional mixtures of some of the powers of each, has accomplished the objects of the great maxim, which we have been considering, will appear more fully, when a survey is taken of the particular powers confided to each department. But the true and only test must, after all, be experience, which corrects at once the errors of theory, and fortifies and illustrates the eternal judgments of nature.

§ 543. It is not a little singular, however, (as has been already stated,) that one of the principal objections urged against the constitution at the time of its adoption was this occasional mixture of powers,1 upon which, if the preceding reasoning (drawn, as must be seen, from the ablest commentators) be well founded, it must depend for life and practical influence. It was said, that the several departments of power were distributed, and blended in such a manner, as at once to destroy all symmetry and beauty of form; and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of the other parts. The objection, as it presents itself in details, will be more accurately examined hereafter. But it may here be said, that the experience of more than forty years has demonstrated the entire safety of this distribution, at least in the quarter, where the objection was supposed to apply with most force. If any department of the government has an undue influence, or absorbing power, it certainly has not been either the executive or judiciary.


1 The Federalist, No. 47; Id. 38.




§ 544. THE first article of the constitution contains the structure, organization, and powers, of the legislature of the Union. Each section of that article, and indeed, of every other article, will require a careful analysis, and distinct examination. It is proposed, therefore, to bring each separately under review, in the present commentaries, and to unfold the reasons, on which each is founded, the objections, which have been urged against it, and the interpretation, so far as it can satisfactorily be ascertained, of the terms, in which each is expressed.

§ 545. The first section of the first article is in the following words: "All legislative powers herein granted "shall be vested in a congress of the United States, which "shall consist of a senate and house of representatives."

§ 546. This section involves, as a fundamental rule, the exercise of the legislative power by two distinct and independent branches. Under the confederation, the whole legislative power of the Union was vested in a single branch. Limited as was that power, the concentration of it in a single body was deemed a prominent defect of the confederation. But if a single assembly could properly be deemed a fit receptacle of the slender and fettered authorities, confided to the federal government by that instrument, it could scarcely be consistent with the principles of a good government to entrust it with the more enlarged and vigorous powers delegated in the constitution.1

1 The Federalist, No. 22.

§ 547. The utility of a subdivision of the legislative power into different branches, having a negative upon each other, is, perhaps, at the present time admitted by most persons of sound reflection.' But it has not always found general approbation; and is, even now, sometimes disputed by men of speculative ingenuity, and recluse habits. It has been justly observed, that there is scarcely in the whole science of politics a more important maxim, and one, which bears with greater influence upon the practical operations of government. It has been already stated, that Pennsylvania, in her first constitution, adopted the scheme of a single body, as the depositary of the legislative power, under the influence, as is understood, of a mind of a very high philosophical character. Georgia, also, is said in her first constitution, (since changed,) to have confided the whole legislative power to a single body.3 Vermont adopted the same course, giving, however, to the executive council a power of revision, and of proposing amendments, to which she yet adheres. We are also told by a distinguished statesman of great accuracy and learning, that at the first formation of our state constitutions, it was made a question of transcendant importance, and divided the opinions of our most eminent men. Legislation, being merely the expression of the will of the community, was thought to be an operation so simple in its nature, that inexperienced reason could not readily perceive the necessity of committing it to

1 Jefferson's Notes on Virginia, 194; 1 Kent's Comm. 208; DeLolme on the Constitution of England, B. 2, ch. 3; 3 Amer. Museum, 62, 66, Gov. Randolph's Letter.

21 Adams's Defence of American Constitution, 105, 106; 2 Pitk. Hist. 294, 305, 316.

3 1 Kent's Comm. 208; 2 Pitk. Hist. 315.

42 Pitk. Hist. 314, 316; Const. of Vermont, 1793, ch. 2, § 2, 16.

two bodies of men, each having a decisive check upon the action of the other. All the arguments derived from the analogy between the movements of political bodies, and the operations of physical nature; all the impulses of political parsimony; all the prejudices against a second co-ordinate legislative assembly stimulated by the exemplification of it in the British parliament, were against a division of the legislative power.1

§ 548. It is also certain, that the notion, that the legislative power ought to be confided to a single body, has been, at various times, adopted by men eminent for their talents and virtues. Milton, Turgot, Franklin, are but a few among those, who have professedly entertained, and discussed the question.2 Sir James Mackintosh, in a work of a controversial character, written with the zeal and eloquence of youth, advocated the doctrine of a single legislative body. Perhaps his maturer life may have changed this early opinion. At all events, he can, in our day, count few followers. Against his opinion, thus uttered, there is the sad example of France itself, whose first constitution, in 1791, was formed on this basis, and whose proceedings the genius of this great man was employed to vindicate. She stands a monument of the folly and mischiefs of the scheme; and by her subsequent adoption of a division. of the legislative power, she has secured to herself (as it is hoped) the permanent blessings of liberty. Against all visionary reasoning of this sort, Mr. Chancellor Kent

1 President J. Q. Adams's Oration, 4th July, 1831. See also Adams's Defence of American Constitution, per tot; 1 Kent's Comm. 208, 209, 210; 2 Pitk. Hist. 233, 305; Paley's Moral Phil. B. 6, ch. 7.

21 Adams's Defence American Constitution, 3; Id. 105; 2 Pitk. Hist. 233.

Id. 366;

3 Mackintosh on the French Revolution, (1792) 4 edit. p. 266 to 273. 41 Kent's Comm. 209, 210.

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