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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 so. 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 exerciso, 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 suitablo stability and cnergy, the exerciso of the three great powers upon which all governments are supposed to rest, namely, 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, constituto 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 decmed a mixed one; a mixed monarchy, if the exocutive 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."1 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 proposi. tion 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."3 Other declarations of a similar character are to be found in other State constitutions. 8
$ 521. Montesquieu seems to have been the first who, with a
1 Journals of Convention, 82, 83, 139, 207, 215.
Bill of Rights, article 30. 8 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 ct constituta reipublicæ forma laudari facilius quam inveniri, vel si evenit, haud diuturna esse potest. Tacit. Ann. lib. 14. Cicero asserts, “Statuo esse optime cousti. tutam rempublicam, quæ cx tribus generibus illis, regali, optimo, et populari, modice confusa." Cic. Frag. de Repub. 1 Adams's Amer. Constitutions, Presaco, 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.
truly philosophical eye, surveyed the political truth involved in 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. “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 senato 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. Wero 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 tho 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 whero the legislative and executive authority are in distinct
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 calculato; the multitude are never checked by re-. morse, and will even ascribe to themselves the highest honor when they deserve only disgrace." Letter to Dr. Price.
3 i Black. Comm. 146.
hands, the former will take care not to intrust the latter with 80 large a power as may tend to the subversion of its own independence, and therewith of the liberty of the subject.” Again: “In this distinct and separate existence of the judicial power in a peculiar body of men, nominated, indeed, by, but not removable at, the pleasure of the crown, consists one main preservative of the public liberty; which cannot long subsist in any state, unless the administration of common justice be in some degree separated from the legislativo and also the executive power. Wcro it joined with the legislative, the life, liberty, and property of the subject would be in tho hands of arbitrary judges, whose decisions would then be regulated only by their opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative.” 1
11 Black. Comm. 269. Sce 1 Wilson's Law Lectures, 394, 399, 400, 407, 408, 409 ; Woodeson's Elem. of Jurisp. 53, 56. The remarks of Dr. Paley, on the same subject, are full of his usual practical sense. “The first maxim," says he, "of a free state is, that the laws be made hy one set of men and administered by another; in other words, that the legislative and judicial characters be kept separate. When these offices are anited in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to privato ends.
Whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect; and when made, they must be applied by the other, let them affect whom they will.
"For the sako of illustration let it bo supposed, in this country, either that, Parliaments being laid aside, the courts of Westminster Hall made their own laws ; or, that the two houses of Parliament, with the king at their head, tried and decided causes at their bar. It is ovident, in the first place, that the decisions of such a judicature would be so many laws ; and, in the second place, that, when the parties and the interests to be assected by the laws were known, the inclinations of the law-makers would inevitably attach on one side or the other; and that whore there were neither any fixed rules to regulate their determinations, nor any superior power to control their proceedings, these inclinations would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would live either without any constant laws, that is without any known pre-established rules of adjudication what. ever ; or under laws made for particular persons, and partaking of the contradictions and iniquity of the motives to which they owed their origin.
“These dangers, by the division of the legislative and judicial functions, are in this country effectually provided against. Parliament knows not the individuals upon whom its acts will operate ; it has no cases or parties before it; no private designs to serve; consequently its resolutions will be suggested by the consideration of universal effects and tendencies, which always produce impartial and commonly advantageous regulations. When laws are made, courts of justice, whatever be the disposition of the judges, must abide by them; for the legislative being necessarily the supreme power of