Imatges de pàgina

ularly of the fundamental principles on which the Federal Government was formed, and exhibit a general view of its organization and powers. This statement of the subjects of discussion comprises a definition of the terms by which they are designated; for by a constitution is meant, not only the form in which a government is organized, but the principles upon which it is founded; and that branch of jurisprudence-which treats of those principles, of the practical exercise of the powers of government in conformity with them, and the construction to be given to them in such their application-has been denominated by jurists “ CONSTITUTIONAL Law.”

It has been justly observed by a writer on this subject,* that “the origin of political constitutions is as various as their forms. In a pure and unmixed monarchy, we seldom hear," he remarks, “of a constitution; in a despotism, never.” The subjects or the slaves of such governments may nevertheless be roused or driven to the vindication of their natural rights; and the absolute king or the obdurate tyrant may be compelled to adopt fixed, if not liberal principles of administration, or they may voluntarily concede them in favour of their subjects. So, too, a successful conqueror may, from motives of policy, establish certain forms and principles for the government of a people whom he may have subdued. In any of these cases, if the government obtained be the result of general consent, whether actually expressed or fairly to be implied, such nation or people may be said to possess a constitution. The same may be affirmed of an aristocracy, if the people at large agree to deposite all the powers of government in a select few; as it may also be said of a democracy, in which the people retain, under such

* Mr. Rawle

modifications as they conceive most conducive to their own safety and liberty, all sovereignty within their own control. The great difficulty, however, in every such case, is to regulate the subdivisions of authority granted, so that the portion of it vested in one department or body of men shall bear a due proportion to that vested in another. Each branch of the government should be sufficient for its own support in the exercise of its appropriate functions, yet all should be made to harmonize and co-operate.

To alter and amend an existing system by adding new parts to the old machinery, and particularly to attempt to infuse a new spirit into the existing government contrary to its original genius, produces an irregular and jarring combination, discordant in its elements and confused in its operation. An exemplification of this idea is afforded by the late reform of the Parliament in England, where, although the elective branch has been rendered a more perfect representative of the Commons, the members of the upper house continue to sit in their individual right, and still constitute an hereditary and permanent body. We Americans may be pardoned for considering that the best mode of forming a political community is the voluntary association of a sufficient number of individuals, on the ground of an original contract, specifying the terms on which they are to be united, and thus to establish a new constitution or plan of government adapted to their situation, character, exigencies, and prospects. Indeed, this may be asserted to be the only true origin and firm basis of a republic.

The constitution of a government on a single principle, whether of monarchy, aristocracy, or democracy, is undoubtedly the most practical and easy, from its greater simplicity. But a constitution may

embrace any two of those principles, as that of an cient Rome and those of some of the Grecian States, and, in more modern times, those of Genoa and somo of the smaller communities of Italy; or a constitution may, like that of England, unite the three simple forms: a government of which description, although antiquity afforded no example of it, was pronounced by Cicero to be, if rightly organized and justly balanced, the most perfect. Modern times and our own country have shown that all the power conceded to an hereditary monarch may be safely vested in the elective head of a Democratic Republic, and that all the advantages arising from the unity of the executive power may be secured, without necessarily incurring the evils of an hereditary succession. These ends are effected by the application of that great discovery of modern politics, the principle of representation. By the proper distribution of the powers of government among several distinct branches, according to this fundamental principle, each of them becomes, in its respective sphere, the immediate and equal representative of the people, as the direct source of its authority, and sole ultimate depositary of the sovereign power.

By the powers of government, I mean those distinguished from each other, as appertaining to the legislative, executive, and judicial departments; which division, founded as it is on moral order, cannot be too carefully preserved. In the wise distribution of these powers, and the application of proper aids and checks to each, consists the optima constituta Respublica, contemplated by the Roman orator as an object of desire and admiration rather than of hope.

Should these three powers be injudiciously blended—for instance, should the legislative and execu. tive, or the legislative, and judicial branches be united in the same hands, the combination would be dangerous to public liberty, and the evils to be apprehended would be the same, whether the powers in question were devolved on a single magistrate, or vested in a numerous body. If, moreover, the principle of representation be applied only to a part of the government, where other parts exist independently of that principle, with an equal or superior weight to that constituted in conformity to it, the benefits of the one must obviously be partial, and the danger to be apprehended from the others, in proportion to their predominance.

As representation may thus be partial in respect to the powers of the government, so it may be confined to a portion only of the governed ; and in this case, the restriction is objectionable in exact proportion to the number those excluded from representation, or from the exercise of a f ze and intelligent voice in the choice of their rulers. In some countries possessing constitutions, the right or power of election is variously limited. In Venice, it was formerly, and in some of the aristocratical republics of Switzerland, it still is, the exclusive privilege of a few families. In the limited or mixed monarchies of England, France, Holland, and Belgium, it is confined to persons possessing property of a certain description or amount. With us, the rights of representation and suffrage are, according to the theory of the Constitution, universal; but in practice they are both qualified-without, however, impairing the general principle.

It is in defining the limits of the three great departments of government, and, by proper checks and securities, preserving the principle of representation in regard both to the exercise of the power, and the enjoyment of the right, that a written constitution

possesses great and manifest advantages over those which rest on traditionary information, or which are to be collected from the acts of the government itself. If the people can refer only to the ordinances and decrees of their rulers to ascertain their rights, it is obvious that, as every such act may introduce a new principle, there can be no stability in the Constitution. The powers of the representative and of the constituent are inverted; and the Legislature is, from its omnipotence, enabled to alter the Constitution at its pleasure. Nor can such laws be questioned by individuals, or declared void by the courts of justice, as they may with us, where the power of the Legislature itself, is controlled by the Constitution. Ă written constitution, therefore, which


thus be appealed to by the people, and construed and enforced by the judicial power, is most conducive to the happiness of the citizen, and the safety of the commonwealth; and it was reserved for the present age, and the citizens of this country, fully to appreciate and soundly to apply the great principle of popular representation, and to afford the first practical example of a “Social Contract." In England, one only of the co-ordinate branches of government is supposed, by the Constitution, to represent the people; and the provincial constitutions of the American Colonies (with but few exceptions) had, at the period of our Revolution, been modelled in conformity with the same theory. Their charters were originally framed, or subsequently modified, so as to exclude the principle of representation from the executive department, of which, as in England, the judicial was considered as a subordinate branch. The solid foundations of popular government had, nevertheless, been laid; and the institutions received from the mother-country were admirably adapted to prepare

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