Doci'MENTS. 



C45 



necessity of ftome such chock in tlic hands of 

 ., M shown l>y n-i m-t i-mi- 



B mil- Msll-lll nf ^nVi-l Illlient, \\lui 



in- in tlie (million that encniachmouta are 



apprehended lY"in tin- ilep/rtiuent in 



. powera ore vestc.l \>\ the ('.msii- 



. tin- .lllIii'llIlN <'!' 

 for each aglUlllt 



s, remarks that 



:! H everywhere extending the 



and drawing all iiower Into ll Impelii- 



i.f our republic * * * aeem 



i- fr.'in h-i.'i.sl:iti\e usurpa- 



ig all pou, r in tin- --aiiie hands, 



i'ened by ev 



i public, where the execu- 

 tive magistracy is carefully limited, both In the extent and 

 .v, er, and where the legislative power Is 

 in a-scmbly which is Inspired by a supposed 

 i intrepid confidence in Its 

 .-iently numerous to feel all tho 

 lie a multitude, yet not so numerous as 

 irsuinu' the objects of its passions by 

 , -res'-ribcs it Is against the enterprising 

 .rlmcnt that the people ouuht to indulge 

 ,d exhaust all their precautions. The 

 Vfl department derives a bupcrWity In our goveru- 

 e-r cireilin-t.-UH-es. Its OOnSUtatiODa] pouc:> 



\teiisivoandlesssusceptlble of i 

 limil-*, it can with the LT.MUT facility mask, under . 



n. I indirect measures, the encroachments which it 

 On the! other side. 



-being restrained within a narrower com- 



paaa, and I'.-in.- more simple in in nature, and the judiciary 



being described by landmark* still less uncertain, projects 



of usurpation by either of these department* would imme- 



nisvdves. Nor Is this all. As 



department alone has access to the pockets of 



in some constitutions full discretion, and 



in all a prevailing influence over the pecuniary rewards of 



those who fill the other departments, a dependence is thus 



in the latter which gives still greater facility to en- 



f the former. We have seen that the tendency 



of republican governments is to an aggrandizement of the 



the expense of the other departments. 



Mi. Jefferson, in referring to the early constitution 

 of Virginia, objected that by its provisions all the 

 powers of government legislative, executive, and 

 judicial resulted to the legislative body, holding 

 that 



The conceiitnitins these in the same hands is precisely the 

 definition of despotic government It will be no all. 



V.TS will be exercised by a plurality of hands 

 and not by a -in.'le one. One hundred and seventy-three 



as one. * * * * 



will it avail in that they are chosen by ourselves. 

 -:n wns not the Government we fought 

 for. but one which should not only be founded on free prin- 

 at in which th.- powers of government should be so di- 

 'iioiiLT several bodies of magistracy as that 

 ml their leiral limits without being effect- 

 ually cht-cked and restrained by the others. For this reason 



rivention which passed the ordinance of government 

 ,uinidati"n on this basis: that the legislative, exeen- 



.'id judiciary departments should be separate and dis- 

 . that no person should exercise the powers of more 

 than one of them at the same timo. But no barrier was pro- 

 vided between these several powers. The iudiciary and 



ive members were left dependent on tho legislative for 

 their subsistence in office, and some of them for their continu- 

 ance in it. If, therefore, tho Legislature assumes executive 



liciary powers, no opposition i.s likely to be made, 

 n.. r, 'if made" can be < Iteetual ; because in that case they may 

 put their proceedings into the form, of an act of assembly, 

 which will render them obligatory on the other branches. 



h ive accordingly, in many Instances, decided rights 

 which should have bee'n left to judiciary controversy: and 

 the direction of the Kxecutlvc during the whole time of their 

 session is becoming habitual and familiar. 



Mr. Justice Story, in his " Commentaries on the 

 views the same subject, and says : 



The truth N, that the legislative power is the irreat and 

 overruling power in every free government The r. 



( the people will watch with jealousy every encroach- 

 ment ii trenches upon their 



. i whi shall watch ihe encroachment of 



aselves? Will they be a jealous 



of the exercise of power by themselves as by others ? There 



are many reasons which may bo aligned for tho rnffnln 



legUlatlve department. In the flnt place, lie 



. e, and let* capable 



i uitnln precise limits than tuote of either 



: nts. The bom..!- of the executive an- 



.rkcd out and d. lined. It reacbot few 



objects, and those aro known. It cannot tranecend then 



wlthoui in contact with the ot I, <-r department*. 



Ijiws in I r.--tniiii and l.'.und IU exeri -. The 



apply with .-till greater force to the judiciary. 

 or may be. bound.-. I to n f-w object* 

 md unlimited, Its opera- 

 tions are necessarily confined to the m. re administration of 

 private and public justice. It cannot punish without law. 

 It can u tr.ivcndes to act upon. It can decide 



only upon rik'hta and cases aa they are brought by others be- 

 fore it. It t-aii do nothing for Itself. H munt do everythinc 

 for other*. It must obey the laws ; and If it corruptly ad- 

 ministers them, it Is subjected to the power of Impeachment. 

 On the other hand, tho legislative j.t in the few 



cases of constitutional prohibition, is unlimited. It Is forever 

 varying its means and its ends. U governs the Institutions 

 and" laws and public policy of tho country. I', regulates all 

 its vast Interests. It disposes of all Its property. Look but 

 at the exercise of two or three branches of Its ordinary pow- 

 ers. It levies alj taxes ; it directs and appropriates all sup- 

 plies ; it gives the rules for the descent, distribution, and do- 

 vises of all property held by individual*. 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. In the next place, it Is the direct, visible repre- 

 sent:iti\ e 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. It is easily moved and steadily movec by the 

 strong impulses of popular feeling and popular odium. It 

 obeys, without reluctance, the wishes and the will of the ma- 

 jority for the time being. The path to public favor lies open 

 by such obedience ; and it finds not only support but Impu- 

 nity, 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 and its arm 

 st renirthened by the countenance and the courage of numbers. 

 These views are not alone those of men who look with appre- 

 hension upon the late of republics; but they are also freely 

 admitted by some of the strongest advocates for popular 

 rights and the permanency of republican institutions. Kacb 

 department should have a will of its own. Each should have 

 its own independence secured beyond the power of being 

 taken away by either or both of the others. But at the same 

 time the relations of each to the other should be BO strong 

 that there should be a mutual interest to sustain and protect 

 each other. There should not only be constitutional menus 

 but personal motives to resist encroachments of one or either 

 of the others. Thus ambition would be made to counteract 

 ambition ; the desire of power to check power ; and the pres- 

 sure of interest to balance an opposing interest The judi- 

 ciary is naturally, and almost necessarily (as has been already 

 said), the weakest department. It can have no means of in- 

 fluence by patronage. Its powers can never be wielded for 

 itself. It has no command over the purse or the sword of the 

 nation. It can neither lay taxes nor appropriate money nor 

 command armies nor appoint to office. It is never brought 

 Into contact with the people by constant appeals and solicita- 

 tions 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 impar- 

 tialiry give it no claims to favor, however they may to re- 

 spect It stands solitary and unsupported, except by that 

 portion of public opinion which is interested only in tho 

 Mriet administration of justice. It can rarely secure tho 

 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 tho application of any pri- 

 vate person, and the painful duly of pronouncing judgment 

 tlr.it these acts are a departure from the law or Constitution, 

 can have no tendency to conciliate kindness or nourish influ- 

 ence. 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 pertina- 

 city which demonstrates how slow popular leaders are to intro- 

 duce checks upon their own power, and how slow the people 

 are to believe that the judiciary Is the real bulwark of their 

 liberties. If any department o'f the Government has undue 

 influence, or aborting power, it certainly has not been either 

 the executive or judiciary. 





 In addition to what has been said by these distin- 



