from the legislative and executive powers. Were it 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. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

"There would be an end of everything like liberty were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers: that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.

"Most kingdoms in Europe enjoy a moderate government, because the prince, who is invested with the two first powers, leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the weight of a most frightful oppression.

"In the republics of Italy, where these three powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods for its support, as even that of the Turks; witness the state inquisitors, and the lion's mouth into which every informer may at all hours throw his written accusations.

"What a situation must the poor subject be in, under those republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary in their hands, every private citizen may be ruined by their particular decisions.

"The whole power is here united in one body; and though there is no external pomp that indicates a despotic sway, yet the people feel the effects of it every moment."

There are under the English Constitution checks which in some measure compensate for the lack of a negative by one department of the government upon the proceedings of the

other.

The monarch is nominally possessed of the executive power, but he is surrounded by a ministry who mainly exercise it in fact, and who are held responsible for its exercise. The monarch is irresponsible, can do no wrong politically. But if the ministry transcend the existing laws they are held accountable, criminally and civilly, unless they can obtain an act of indemnity. The power of the king to dissolve the Parliament

is a prerogative check upon a parliamentary encroachment. The legislative power is deposited in two branches, the members of one branch holding their seats generally by hereditary right, those of the other through elections by the people; the interests of the two classes not being identical, sometimes even antagonistic, and the hereditary branch opposing a conservative check upon radical changes which may be desired by the other. At the same time the executive, by a power to create peers, who thereby become members of that branch, holds a check upon it, which may prevent its conservatism from interposing an obstacle to reform, or its hereditary aristocracy from becoming dangerous to the crown. Parliament, on the other hand, has the power to refuse supplies, and thus paralyze the action of the executive, and check obnoxious measures. And the judiciary, although the incumbents of the bench are appointed by the crown, are, from the tenure of their appointment, as independent, as the nature of the case will admit, of both king and Parliament.

The three powers of government being thus placed in separate departments, it remains to be seen whether these checks do not practically provide for the security of liberty, at least equally well with a form which is, theoretically, more perfect, by means of negatives which the different departments have on each other. They will provide as effectually for that security, if these negatives shall practically lose their theoretical force and themselves become nugatory.

One of the great objects of a considerable portion of the early settlers of this country was to obtain the security of civil rights as well as of religious liberty. But it was not to be expected that in the infancy of the colonies, dependent as they were to a great extent upon the crown, and separated into distinct.communities, any well-defined arrangement of the powers of government could be perfected by them. It was only after the declaration of independence that the people had an opportunity to devise and adopt a more perfect system than that of Great Britain (theoretically at least), for the security of civil liberty, by the formation of written constitutions, which in theory are the fundamental law prescribed by the people, as the source of political power. These not only separated the three great powers of government, and placed them in separate departments, but

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limited and controlled the action of the departments by the declaration of fundamental principles, which none of the departments, nor even all of them combined, might lawfully disregard or violate. And further, by the adoption of checks, conferring, to an extent, greater or less, the power of restraint in each upon the action of the other, in the exercise of the powers granted, civil liberty and civil rights were to be guarded by the independent action of each in its separate sphere.

Upon the declaration of independence the people of the new States proceeded to organize State governments, each State for itself. Some of them continued to act under their original charters, as the foundation of their government, but most of them framed written constitutions, which became the organic law of their respective States. Even before the final adoption of the Declaration of Independence by Congress, Virginia formed such a constitution, consisting of a Bill of Rights and a Form of Government.1 Other States followed. Some with separate bills of rights, and others incorporating assertions of right and principle into the frame-work of their form of government. At a later period a Constitution was adopted by the peoples of all the States for the limited purposes expressed in it, which contained an express provision that "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.'

The principles of the State constitutions for the security of civil liberty were afterwards expressly incorporated into it, in the shape of amendments.

1 It has been denied that the States were at any time sovereign. That position cana fundamental law for the not be maintained. Without entering into the argument here, it may be well to say, in this connection, that in this adoption of a Constitution, foundation of civil government within her borders, defining the rights and liabilities of her citizens, -a law which had no rule or authority above it, and which was therefore the exercise of the highest possible attribute of sovereignty, — Virginia neither asked the permission of Congress, nor submitted her constitution to the revision of that body. And although Massachusetts and some other of the colonies asked the advice of Congress in relation to "taking up civil government," no one of the States ever asked permission to adopt a constitution, or submitted that which the people had adopted, or proposed to adopt, to Congress for the sanction or approbation of that body. There was no power in Congress to control the action of the States in the adoption of their fundamental law, and of course none in regard to any other law.

In these constitutional provisions of the States, and of the United States, — in the separation of the legislative, executive, and judicial powers, — in the independence of each, within its proper sphere, and in the checks which are provided, to prevent, as far as may be possible, encroachments by either,rests the great security of civil liberty in this country.

It was reserved to the judicial department of the United States to declare, that by the written fundamental law thus prescribed in the Constitution of the United States, there existed a power in that department to guard against any infringement of such rights of the people as were protected in that supreme law and might be within the jurisdiction of that department, by a judicial decision declaring the absolute nullity of any act of the legislative department, which should be passed in violation of the provisions of the Constitution.

This, however, was but a legitimate result from the fact that the people had prescribed a paramount law, binding upon all offieers of the government, as well as upon the people; and the fact that the judicial department is, in all cases which its process can reach, the interpreter and judge of the law of the land.

The same principle is applicable to the constitutions of the several States, so far as they are not controlled by the Constitution of the United States.

Our constitutions doubtless admit of improvement in some of their details. But these improvements are not to be looked for at the hands of those who make flaming speeches about the march of knowledge, and who decry the labors of the original framers of the fundamental laws of the States and of the nation.

The original constitutions were framed in times which brought the great principles of civil liberty, and the true rights and interests of the people, prominently into view, and when parties had not been formed to serve the ambitious projects of those who were seeking to acquire, or preserve, power and place. They were formed by men better versed in the history of the ancient republics than those who are now crying out for change. They were formed in times favorable for a calm and temperate consideration of the momentous questions involved in the formation of a fundamental paramount law. And it will be the part of wisdom in their successors, to consider and deliberate, as carefully and intelligently as they did, before any action is

taken which shall ignore or violate the fundamental principles upon which they based their action.

If they considered slavery a subject respecting which it was expedient to make compromises for the sake of union, it was certainly not the part of wisdom in their successors, in the slave States, to cherish and extend that institution, instead of providing for a gradual emancipation. And it remains to be seen how far it was and is wise, in the successors of those persons in the free States who deemed it better to secure a united government over the whole country than to go to war upon objections to that institution, to break the bonds of the slave suddenly, and entirely, and then to endanger all the principles of civil liberty, by a controversy whether the newly emancipated slave shall at once have the right of suffrage. The emancipation has imposed hardship, misery, disease, and death upon immense numbers of those whom it set free. If it shall be the means of breaking down the divisions which separate the legislative, executive, and judicial powers, and thus of destroying the safeguards of civil liberty, our successors may yet have bitter occasion to believe, that bad as African slavery must be acknowledged to be, the loss of all security for persons and property is an evil of infinitely greater magnitude.

The safeguards of civil liberty provided by the wisdom of the fathers have certainly been sadly prostrated in the time of the children, and the end is not yet. At the very first strain upon them they gave way, partly on the plea of necessity, the tyrant's plea, — which often means mere questionable expediency, partly by reason of the personal ambition which leads the individual to seek his own elevation without regard to the rights of others, and which induces him to excite and mislead the people, in order to promote and secure his own selfish ends, an ambition which has been in all ages the curse

of political rights and civil freedom.

The first breach in the defences of constitutional liberty, during the late war, was in the adoption of new and extreme constructions of the Constitution of the United States, particularly in that construction of the "war power" which caused it to overshadow all the other powers of the government, and made the President a despotic ruler. He could do whatever the necessity of the hour required, he being at the same time,