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majority to concur in the long-sighted wisdom of the soundest provisions. Temporary feelings and excitements, popular prejudices, an ardent love of theory, an enthusiastic temperament, inexperience, and ignorance, as well as preconceived opinions, operate wonderfully to blind the judgment and seduce the understanding. It will probably be found in the history of most conventions of this sort, that the best and soundest parts of the constitution, those which give it permanent value as well as safe and steady operation, are precisely those which have enjoyed the least of the public favor at the moment, or were least estimated by the framers. A lucky hit, or a strong figure, has not unfrequently overturned the best-reasoned plan. Thus, Dr. Franklin's remark, that a legislature with two branches was a wagon drawn by a horse before and a horse behind, in opposite directions, is understood to have been decisive in inducing Pennsylvania in her original constitution to invest all the legislative power in a single body.1 In her present constitution, that error has been fortunately corrected. It is not believed that the clause in the constitution of Vermont providing for a septennial council of censors to inquire into the infractions. of her constitution during the last septenary, and to recommend suitable measures to the legislature, and to call, if they see fit, a convention to amend the constitution, has been of any practical advantage in that State in securing it against legislative or other usurpations, beyond the security possessed by other States having no such provision.2
§ 538. On the other hand, if an appeal to the people, or to a convention, is to be made only at great distances of time, it will afford no redress for the most pressing mischiefs. And if the measures which are supposed to be infractions of the constitution enjoy popular favor, or combine extensive private interests, or have taken root in the habit of the government, it is obvious that the chances of any effectual redress will be essentially diminished.3
§ 539. But a more conclusive objection is, that the decisions upon all such appeals would not answer the purpose of maintain
1 1 Adams's American Constitutions, 105, 106.
2 The history of the former constitution of Pennsylvania, and the report of its council of censors, show the little value of provisions of this sort in a strong light. The Federalist; Nos. 49, 50. [The council of censors was abolished in Vermont in 1870, by a constitutional amendment proposed by the council itself.]
3 The Federalist, No. 50.
ing or restoring the constitutional equilibrium of the government. The remarks of the Federalist on this subject are so striking, that they scarcely admit of abridgment without impairing their force: "We have seen that the tendency of republican governments is to aggrandizement of the legislature at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations. The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally objects of jealousy; and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal weight with the people, and that they are more immediately the confidential guardians of their rights and liberties. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their case most successfully with the people; they would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom everything depends in such bodies. The convention, in short, would be composed chiefly of men who had been, or who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them." 1
1 The Federalist, No. 49. The truth of this reasoning, as well as the utter inefficacy of any such periodical conventions, is abundantly established by the history of Pennsylvania under her former constitution. The Federalist, No. 50. See 2 Pitkin's History, 305, 306.
§ 540. If, then, occasional or periodical appeals to the people would not afford an effectual barrier against the inroads of the legis lature upon the other departments of the government, it is manifest that resort must be had to some contrivances in the interior structure of the government itself, which shall exert a constant check, and preserve the mutual relations of each with the other. Upon a thorough examination of the subject, it will be found that this can be best accomplished, if not solely accomplished, by an occasional mixture of the powers of each department with that of the others, while the separate existence and constitutional independence of each are fully provided for. Each department should have a will of its own, and the members of each should have but a limited agency in the acts and appointments of the members of the others. 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 so strong, that there should be a mutual interest to sustain and protect each other. There should not only be constitutional means, 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 pressure of interest to balance an opposing interest.1
§ 541. There seems no adequate method of producing this result but by a partial participation of each in the powers of the other; and by introducing into every operation of the government, in all its branches, a system of checks and balances, on which the safety of free institutions has ever been found essentially to depend. Thus, for instance, a guard against rashness and violence in legislation has often been found, by distributing the power among different branches, each having a negative check upon the other. A guard against the inroads of the legislative power upon the executive has been in like manner applied, by giving the latter a qualified negative upon the former; and a guard against executive influence and patronage, or unlawful exercise of authority, by requiring the concurrence of a select council, or a branch of the legislature in appointments to office, and in the discharge of other high functions, as well as by placing the command of a revenue in other hands.
§ 542. The usual guard, applied for the security of the judicial
1 The Federalist, Nos. 48, 50, 51.
department, has been in the tenure of office of the judges, who commonly are to hold office during good behavior. But this is obviously an inadequate provision, while the legislature is intrusted with a complete power over the salaries of the judges, and over the jurisdiction of the courts, so that they can alter or diminish them at pleasure. Indeed, the judiciary is naturally, and almost necessarily, (as has been already said,) the weakest department.1 It can have no means of influence 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 offices. It is never brought into contact with the people by 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 favor, 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
1 Montesq. Spirit of Laws, B. 11, ch. 6. [This is a truth which has often been remarked upon by writers upon government, and some forcible illustrations of it might be given from our own history, if it were important. Mr. Van Buren comments upon one of them in his Political Parties, 307-310.]
wholesome vigor in the laws, as well as a wholesome administration of public justice.
§ 543. 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.
§ 544. 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.