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none of the elements of law; it is a laying before the people certain propositions for their consideration ; and the people, through their state legislatures or conventions, are the sole legislators. This subject has received much attention in very recent times, as well as at the earliest period of the present government, and has been settled so far as the joint action of President and legislature can settle a question of construction.

$ 179. The Executive possesses another legislative function of an exalted character. Treaties entered into by the United States are declared by the Constitution to be the supreme law of the land. Their quality as law is so high that Congress can only destroy them by a single act of legislation, namely, by a declaration of war against the nations with whom they are made. Yet the treaty-making power, this authority to pass laws which shall be supreme even over the ordinary proceedings of Congress, is confided to the President, under the single limitation that his work must be submitted to the Senate and ratified by two thirds of that body.2 He, however, holds the initiative; the upper House can only accept or reject his decrees, they cannot dictate a treaty.

$ 180. I will very briefly mention some further instances in which the peculiar functions of one department are partially shared by another. The appointment of officers is plainly an executive act, and the power to appoint is conferred upon the President, or some of his subordinates. Yet most appointments made by the President must receive the concurrence of the Senate. The trial of impeachments is peculiarly a judi

3 cial act, yet the Senate is the only court for that purpose. In addition to these cases of direct interference, there exist features in the general organization which afford opportunities for the exertion of a vast influence by one department upon another. . The judges are not chosen independently of the President and the Senate, but are placed in office by the concurring assent of both. The House of Representatives may be called upon to elect the Chief Magistrate himself in the event that a majority of electors have failed to unite upon the same person for that office. 1

1 Const. Art. VI. & 2. 3 Ibil.

? Const. Art. II. Sec. II. & 2. 4 Ibid. Art. I. Sec. III. $ 6

$181. While, therefore, the general plan of the govern. ment assumes three co-ordinate, independent departments, and while these several departments are, in the main, free from each other's control, they are, from necessity, linked together by many ties, both of function and of influence. One does, at times, perform some of the peculiar duties of another.

I have here purposely refrained from speaking of the vast legislative attributes which inhere in a free judiciary under our own and the English system, because this would lead into an extended discussion foreign from the immediate purposes of the present work.

$ 182. Among these three departments there will always be a tendency in each to encroach upon the special province of the others, or to enlarge the sphere of its own governmental action. The Constitution endeavors to draw the lines of de marcation between them; they are placed as checks upon each other ; the whole system was carefully planned so as, if sible, to prevent any and all acts of usurpation, by making one department necessary to the others. But the organic law must, of necessity, use general terms; it cannot descend to any minuteness of detail without becoming a code of special precepts rather than a guide to the government in its work of legislation. The checks and counterpoises of the Constitution, are also, in a great measure, moral; the sanctions are slow in their operation, and may never be put in motion. Admirable, therefore, as is the systein, it cannot entirely prevent those results which naturally flow from the possession of power; each department will strive to increase the scope of its own functions, even at the expense of the others.

ý 183. In this inevitable struggle the popular branch - the legislature - will always obtain and hold the ascendant. The superiority which thus belongs to Congress results from two causes, — the greater power of that body, and its greater inclination to use that power. It is in itself plainly the most powerful in that the function of creating law is higher, and more

i Const. Art. II. Sec. I. & 3.

posforcible than that of applying or expounding. The other departments must await the action of the legislature, which always holds the initiative ; and neither of them can bring any sanction to bear directly upon that body, and thus prevent its contemplated acts. It, therefore, more than the others, can break over the barriers which the organic law has raised to restrain its lawlessness. The history of England shows how Parliament has advanced, step by step, in its acquisitions of power, until it has reduced the crown to a cipher, and made the ministers of the King its own servants; and how, finally, the Commons has substantially drawn all these vast accumulations of power to itself, and forced the Lords into a position of comparative insignificance. It may be said that Parliament has been restrained by no written Constitution defining the exact measure of its functions. This is true ; but it has been restrained by influences more potent than written enactments can be, unless the will and consent of the people is constantly upholding and giving life to the positive provisions of the organic law; it has been restrained by the habits of thought of the English subjects, by the tremendous power of class interests and prejudices, by a traditionary system which has left its mark upon every public act of the British government.

$184. If the English King, with his ancient despotic power, and his present influence as theoretical head of the nation, to whom the allegiance of his subjects is due, aided by the support of a civil and an ecclesiastical hierarchy, has not been able to resist the rising tide of parliamentary progress, how shall the President of the United States, with his limited and defined functions, his liability to impeachinent, his responsibility to the people, and his brief term of office, be able to oppose any permanent obstacle to the steady advance of Congress, much less to turn that advance backward and despoil the legislature of their rightful attributes ? The prerogatives once held by the British Crown which he might use against the Parliament, were immeasurably more efficient than any power lodged in the hands of the President, but these have been either directly wrested from him, or they have been so completely abandoned by non-user, that any exercise of them would be the signal for a revolution. The President cannot coerce the Congress; the Supreme Court cannot directly in. terfere with the proceedings of Congress ; but the House of Representatives may impeach, and the Senate may condemn, , both President and judges; and although the Congress may not abolish the national judiciary, they may curtail its functions and reorganize the tribunals. The legislature is, therefore, the most powerful both in the essential nature of its general functions, and in the special capacities which have been committed to it.

$185. But Congress has also greater inclination and more opportunities to use and enlarge its power than are possessed by the other departments. This disposition is not peculiar to our own national legislature, it belongs, and must of necessity belong, to all popular assemblies. Whatever motives may act upon a single chief magistrate, impelling him to amplify his field of action, will also act upon each individual legislator. But the single magistrate must be restrained in some measure by the force of public opinion, and by the sense of a responsibility shared with himself by no one ; the responsibility rests upon the legislator with a lessened weight as it is divided between him and all his fellows; the force of public opinion is broken in his case by its encounter with the whole body of law-makers. That this tendency does exist in a legislature to enlarge its jurisdiction, to encroach upon that of other departments, to usurp power, is proven by the history of the British people ; it is no less clearly shown in our own history, and especially in that of the past few years.

§ 186. I am strongly of opinion that the people of the United States are not in so much danger from an undue stretch of uthority by President or by judges, as from unlawful assumptions by Congress. The Constitution is well so far as it goes;

; the design was good ; the checks and balances were carefully and skilfully arranged; but no mere organic law can place a lasting barrier to the advance of a popular legislature. Step by step their powers are exceeded; the nation acquiesces; the precedent becomes established ; and a system of construction is finally elaborated which takes the place of the written Constitution as a práctical guide to the government in its official duties.

One power alone can stay the legislature in its gradual march towards the possession of all political attributes, - that of the people. If the people shall always give a life to the provisions of the Constitution, if they shall impart their own force as a constant energy in the complicated machine, their servants and agents may easily be kept within the bounds assigned to them. But' without this life and force, the process I have described is sure; we may regret, but we cannot prevent it.

187. The evils which would result froni a substantial concentration of all power in Congress cannot be enumerated. Unless our forefathers were wholly wrong, unless the organic law is framed upon an entire misconception of the needs of a free people, and of the objects of government, the three departments, legislative, executive, and judicial, must be kept separate, independent, co-ordinate. The question of the power to be wielded by the legislature was discussed and settled. If the tendencies of the present day are right, then all the framers of the Constitution, and the people who adopted it, were wrong. Should Congress, as now organized, practically draw all the attributes and functions of government to itself, and reduce the executive and judiciary to a condition of substantial de. pendence upon itself, the next step would inevitably follow; and this would be the consolidation of the national legislature into one body. The Senate would be pronounced an unnecessary and hurtful clog upon the free activity of the more popular branch. Even now such a step is publicly advocated. Should this result be accomplished, the liberties of the people would be gone, only to be regained by another revolution. Nothing could withstand a legislature consisting of one house, practically wielding all governmental power, restrained by ng checks of organization or function. No tyranny could equal

its tyranny

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