And the following reasons for it are given by Montesquieu : "When the legislative and executive powers are united in the same person or body, there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator," and knowing the parties and interests that would be affected by his determinations, he might make particular laws for particular cases; and be influenced in all his acts by his partialities rather than by the fixed rules of justice. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." Consequently, where the three powers are not properly separated, the will of those who govern must become despotic; and it is wholly immaterial to the subject, whether he suffers under the despotism of one magistrate, or the tyranny of an assembly. In consonance with this great principle of precaution in favor of liberty, the constitution of the United States, as well as those of the several states, make provision for these separate and distinct branches of government. In the constitution of the United States, we find that the first article vests all legislative powers therein granted, "in a Congress of the United States, which shall consist of a Senate and House of Representatives;" the second article vests the executive power in a President;" and by the third, the judicial power is "vested in one Supreme Court, and in such inferior courts as the Congress may from time to time order and establish." And it appears to be the intention of the constitution that no individual connected with either of these departments should be eligible to another; for it declares in the sixth section of the first article, that "no person holding any 66 219 Supposing the legislative and executive powers were united? 223 Is this principle acknowledged in our institutions? 224 What is said of the first article in the constitution of the United States? 225 What is said of the second article? The third? 226 What farther appears to be the intent of the constitution? 227 By what article is it shown; and what follows from that article? office under the United States shall be a member of either house during his continuance in office." And by consequence, if any congressman should accept of an office in the executive department or in the judiciary, he forfeits his seat in the legislature. In several of the states, it is expressly stipulated by constitution, that "any person shall not exercise powers in more than one of them at the same time." But while it is necessary that the powers properly belonging to one of the departments, should not be directly administered by either of the other departments; still it is equally as necessary, in order to preserve entire to each its peculiar rights and duties, that these departments should be so far connected and blended, as to give to each a constitutional control over the others.* Hence, in our constitution, the president has a right to negativet any bill, order, resolution, or vote, to which the concurrence of both houses is necessary, (except a question of adjournment;) and to return the same, with his objections, to the house in which it originated. And in such cases, unless two-thirds of each house shall repass it, it cannot become a law. On the other hand, without the approbation of the senate, the president cannot appoint any of the executive officers. And again, to the judiciary, appertains the exclusive right of expounding the constitution; and hence it has authority to declare any unconstitutional act of congress to be void; and because the constitution has given it power to decide, and has provided for no appeal from its decision, what it has determined to be unlawful, the executive cannot perform.§ CHAP, VIII.-ORGANIZATION OF THE LEGISLATIVE POWER. "In republican governments, the legislative authority necessarily predominates. The remedy for this inconveniency 228 Should these three departments be so separated as to have no influence on each other? Why? 229 How does our constitution provide for this necessary influence of the executive over the legislature? 230 How for legislative restraint over the executive ? 231 How for the judiciary limitation of the executive performances? 232 What is the predominant power in republican governments? 233 How should this be remedied in part? * Federalist, Nos. 48 and 51. † Art. 1, sec. 7. Rawle on art. 3. sec. 2. is, to divide the legislature into different branches; and to render those branches, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit." This division is provided for by the constitution of the United States, which vests the legislative powers of government " in a congress, which shall consist of a senate and house of representatives," whose joint assent is necessary to the enactment of any law. Similar branches exist in each of the states, excepting Vermont; in which, however, there is an executive council corresponding somewhat to a senate. Many speculative writers and theoretical politicians, have been struck with the simplicity of a legislature with a single assembly, and have concluded that more than one house was useless and expensive. But the division of the legislature into two separate and independent branches, is founded on such obvious principles of good policy, and is so strongly recommended by the unequivocal language of experience, that it has obtained the general approbation of all wise politicians. The separation of the legislature into two houses, acting separately, and with co-ordinate powers, will undoubtedly destroy the evil effects of sudden and strong excitement, and of any precipitate measures that may spring from passion, caprice, prejudice, personal influence, and party intrigue. A hasty decision is not so likely to arrive to the solemnities of a law, when it is to be arrested in its course, and made to undergo the deliberation, and probably the jealous and eritical revision, of another and a rival body of men, sitting in a different place, and under better advantages to avoid the prepossessions and to correct the errors of the other branch.t One of these branches, which in our constitution is styled the House of Representatives, should be chosen directly by the people, and should be numerous enough to be acquainted with the interests and circumstances of every section of the 234 How does our constitution provide for this? 235 Have all politicians agreed to the expediency of this? 237 What are the probable effects of such a separation? * Art. 1, sect. 1. † Kent's Commentaries, Lec. 10. + Art. 1, sect. 2. community. And, in order to represent the varying wants of their constituents, they should be elected as often as consistent with the time necessary to obtain a proper degree of knowledge on legislative subjects. By the constitution, a representative's term of office is fixed to two years.* And hence, that length of time is said to be the duration of one congress. The whole number of representatives is regulated by an apportionment among the several states, so that from each state, there shall be one representative so often as it contains a certain number of inhabitants; (with the estimate of five slaves for three white men ;) and for this purpose there must be an enumeration of the inhabitants throughout the United States every ten years. It is provided that the number which shall be entitled to a representative shall not be less than 30,000; but congress may increase it after each census as they see fit, excepting that each state shall always be entitled to at least one.t But though the aggregate number of representatives allotted to each state is determined by the aggregate number of inhabitants; yet the right of choosing the allotted number, is to be exercised by such part of the inhabitants as the state itself may direct. That is, this right shall be conferred on those who are privileged to vote for the lowest branch of the state legislature. Hence, in some states, the number of votes for a choice of a representative is less than in others. But as there is in all numerous representative assemblies, a propensity to yield to the impulse of violent passions, and to fluctuate with any sudden changes of opinion which may have taken place either in themselves or in their constituents; and also to be seduced by factious leaders into intemperate and pernicious resolutions ; one branch of the legislative assembly should be less numerous and more independent. 239 How often should they be elected; and how often are they? 245 Should one branch of the legislature be as numerous as the other? Why? * Art. 1, sect. 2. On the 22d of May, 1832, congress fixed the ratio of representation to one for 47,700 inhabitants. Federalist, No. 62. Among the many methods of appointing the members of this branch of the legislature, that provided for in our constitution, viz. election by the legislature of each state, is undoubtedly the best for this country. "It is recommended by the double advantage of favoring a select appointment, and of giving to the state governments such an agency in the formation of the general government, as preserves their authority and contributes to render them actual members of the great body." The number, which is two for each state, was at first the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation at the time of forming our constitution rendered indispensable ;" and it has been found in practice to produce no dangerous inconvenience. As it would be contrary to the genius of a republic to trust the entire executive power to the will of one man, it seems proper that this select body should be the one upon which a part of that power should devolve. This being the case, its members should enjoy public confidence at home and abroad. And for this purpose, it seems necessary that they should have the character of permanency; so that there should be no fear of a sudden and total change of governmental measures. It is therefore provided by the constitution, that although the time for which each senator is elected will expire in six years, yet the times of their elections are so arranged that one third of them shall go out of office every second year; so that after every new election there is still a majority of former members. CHAP. IX.-ORGANIZATION OF THE EXECUTIVE POWER. "There is an idea, which is not without its advocates, that a vigorous executive is inconsistent with the genius of republican government. The enlightened well-wishers to this 246 What is the best method of electing the highest branch for this country? 247 What is its recommendation ? 248 What is the regulation as to the number of the senate? 249 How happened that to be adopted? 250 In what other power should they partake? Why? 251 What is necessary on this account? 252 How does the constitution provide for this? 253 What idea relative to a republican government has been held by some? Is it correct? * Rawle, chap. iii. Washington's Letter to the States. |