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ticular case. He prescribes the rule, and sees fit not to enforce it. This is legislation alone. He regards a thing which when done was not in violation of an existing rule, as a matter to be punished. This is, in its nature, an ex post facto law, which is promulgated, and sentence rendered, and carried into execution forthwith, by an order which forms part of the transaction, and may be deemed to be an exercise of judicial and executive power. It may be that he regards the mere existence of one of his subjects as an obstacle to some proposed action, and by a summary order sends him to execution, in which case neither legislative nor judicial power is exercised. The act is an exercise of despotic executive power only. These instances may suffice to show us that the three powers which have been mentioned, exist, even in such a government, while it is at the pleasure of the despot which of them shall be exercised, and the manner of their exercise ; the ordinary result being that the executive power is often the sole power which is brought into action.
What has thus been said of the despotic power of the monarch, is equally true of an oligarchy which may be equally a despotism.
It makes no essential difference in the principle, that the powers of government are exercised by several persons, as a supreme power. In their united action, or in the action by the voice of a majority, if that be the nature of the case, they exercise the three powers named, and may exercise them in the same manner, or omit the exercise of one or more of them at their pleasure.
It makes no difference whether this body be called a Council, a Senate, a holy Vehmé, an Inquisition, a Congress, or a Courtmartial; or whether its acts are in the form of laws, decrees, orders, judgments, or sentences, if it exercise the supreme power of government, without restraint, at the pleasure of its will
The same is true of a democracy, acting by majorities, and ruling without restraint. If the democracy be of limited numbers, the ruling power may resolve itself into what, if it were not the supreme power, would properly be denominated a mob; but it would not thereby have changed its character. A mob sometimes assumes to itself, and exercises all these powers. At times it makes a show of the judicial, and perhaps applies an
ex post facto rule. But its action usually presents more of the executive feature, than of the legislative, or judicial.
I need not argue to you that there is no security for civil liberty (but that would be an inappropriate phrase), that there is no civil liberty in such a government. Property, liberty, and life itself, are held at the unchecked will of an irresponsible power. No one knows, from day to day, that he is, for an hour, secure of either. The hand of a “familiar,'
66 official,” or a sergeant-at-arms, or a corporal of the guard, may be laid on him at any moment; and the dungeon, the rack, the stake, the guillotine, or the gibbet, may follow, without the possibility of the intervention of any habeas corpus, or other stay of proceedings, except at the pleasure of the ruling power.
The sentence denounced may be unjust, without excuse or palliation. There is no power to stop it, except the power which decrees it shall be executed. The proceedings may be as secret as the grave. The husband or father, the son and brother, the wife and daughter, may disappear, without a trace left behind by which to discover the place of imprisonment or of burial; or the arrest, incarceration, and execution, may be at high noon, in the presence of weeping relatives and trembling spectators, and the doom be equally beyond any power of delay or prevention.
I have thus described some of the most odious forms of despotic power.
But there may be other forms, presenting, ostensibly, less odious characteristics, in which the powers of government may be exercised in a similar manner, but to a limited extent only, and perhaps in rare instances, and these by usurpation. Something of this kind is to be expected at the present day, rather than the absolute power of which I have just spoken. Civil liberty may exist, to some extent, greater or less. There may be, in quiet times, no cause of complaint of the administration of the government. But if the exercise of despotic rule may be admitted at all; if it is conceded that emergencies may arise when such authority may be exercised ; if it is permitted to exist, even as a possibility, — to the extent of its exercise, whatever that may be, civil liberty is but at the pleasure of the government which does or may exercise it, and all persons hold their property, liberty, and lives, at the pleasure of whoever may, on one pretext or another, put in motion the engine of despotism.
One of the great struggles of the civilized world has been to shake off and overthrow despotic government, whether exhibited in one or the other of its various forms, and to substitute a government which should maintain and preserve civil liberty.
It needs no argument to show that such a government cannot be expected from an absolute monarchy, nor from any limited number of people exercising the power of government with an interest adverse to that of the whole people ; nor from the great body of the people, exercising all the powers of government in mass-meeting, with no study of the principles which lie at the foundation of all good government, and subject to the influence of demagogues whose interest it is to make the worse appear
the better reason. If the people generally are ignorant, they become the prey of the designing. But education alone furnishes no guaranty for the maintenance of liberty. On the contrary, it is consistent with extraordinary corruption.
If the people are corrupt, it is in vain to expect that the government which they set up will be any better than the constituency which it represents.
In neither of these cases can it be hoped that the different powers of government will be faithfully exerted for the promotion of liberty, even if their administration is committed to separate and independent departments. But these are extreme
It is in those states of society in which the great mass of the people are neither so ignorant as not to understand their rights, nor so corrupt as to barter them away, or to be regardless of them, that there is a well-founded hope for the preservation of liberty.
Even there, the best arrangements for civil government may be overturned, for the time being, by the passions of the multitude; and repentance, if it come at all, may be altogether too late to remedy the mischief which passion and recklessness have produced.
The greatest safeguard which the case admits of, — guarding against the errors of ignorance, on the one hand, and passion on the other, - guarding, so far as may be, against the corruption which sometimes contaminates numbers of the people, - is in the distribution of the powers of government into three separate departments, in the manner already indicated.
The republics of the ancient world furnished only a very limited security to civil rights.
The legislative and executive powers were generally in the hands of one person, or body of persons, and although the judicial power was nominally separated, yet, being the weaker, it could, from its nature, have but little independence when the other two were united against it. In fact it was substantially subservient, from the nature of the case.
The attempt was long since made, in England, to separate the legislative, judicial, and executive powers, and to erect them into distinct, and to some extent, independent departments of government; and by this means, and by the declaration of certain principles of right, to secure civil liberty to the people. These principles are set forth in Magna Charta, the Petition of Right, the Habeas Corpus Act, and the Bill of Rights.
Mr. John Adams in the preface to the “Defence of the American Constitutions," published in London, in 1787, says: “The people's rights and liberties, and the democratical mixture in a constitution, can never be preserved without a strong executive, or, in other words, without separating the executive power from the legislative. If the executive power, or any considerable part of it, is left in the hands either of an aristocratical or a democratical assembly, it will corrupt the legislature, as necessarily as rust corrupts iron, or as arsenic poisons the human body; and when the legislature is corrupted, the people are undone."
After quoting Tacitus, as doubting the practicability, or the duration, of a republic in which there is a governor, or senate, and a house of representatives, though he admits the theory to be laudable ; and Cicero, as declaring the superiority of such a government, Mr. Adams says: “As all the ages of the world have not produced a greater statesman and philosopher, united in the same character, his authority should have great weight. His decided opinion, in favor of three branches, is founded on a reason that is unchangeable; the laws, which are the only possible rule, measure, and security of justice, can be sure of protection, for any course of time, in no other form of government.
He then says: “If Cicero and Tacitus could revisit the earth, and learn that the English nation had reduced the great idea to practice, and brought it nearly to perfection, by giving each division a power to defend itself by a negative; had found it the most solid and durable government, as well as the most free; had obtained, by means of it, a prosperity among civilized nations, in an enlightened age, like that of the Romans among barbarians; and that the Americans, after having enjoyed the benefit of such a constitution a century and a half, were advised by some of the greatest philosophers and politicians of the age to renounce it, and set up the governments of ancient Goths and modern Indians, — what would they say? That the Americans would be more reprehensible than the Cappadocians, if they should listen to such advice.”
But the negative in the monarch of the English Constitution is merely nominal, being never exercised; and it is for this reason, and from the fact that there is in the English unwritten constitution no recognized power otherwise limiting the legislative authority of Parliament, that that body is often termed omnipotent. If Parliament refuses to sanction the measures of the ministry, who represent the king, the ministry resign, or the king dissolves Parliament, and there is a new election. If measures are adopted by Parliament against the will of the existing administration, the ministry resign or acquiesce. But there is no power, on the part of the judicial department, to declare any act of Parliament void, because in violation of Magna Charta, or against the Petition of Right, for even these are not recognized as the supreme law of the land, unalterable except by the act of the great body of the people ; the first being a grant or declaration by the king, and the latter a parliamentary declaration of right.
Montesquieu, in his chapter on the Constitution of England, says :
“ When 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 senate should enact tyrannical laws, to execute them in a tyrannical manner.”
Again: “ There is no liberty if the power of judging be not separated