Imatges de pàgina

sumed by others, incompatible with the sovereignty actually retained by the states, if not necessary to give effect to the federal supremacy. The true rulo of interpretation seems to be no other than that which is applied, in all cases of correct and impartial exposition, to deduce the meaning of the contract from its known design and entire language; to reconcile, and, if possible, give effect, to every part of the instrument, and, at the same time, preserve the unity and harmony of the whole, in due regard to the expressions as well as the intentions of the parties.

On many questions which have already arisen, we have the benefit of the learned elucidations of the judicial departments of the General, and many of the State Governments; and wherever the supreme federal tribunal has pronounced its solemn decision, its authority must be deemed conclusive, because that court, and that alone, possesses ultimate jurisdiction upon all points of controversy arising under the Constitution of the United States. But where a guide so certain and authoritative cannot be found, I must endeavour, with the aid of inferior lights, to discover the true, but latent meaning of a Constitution which, in the language of that venerable and accomplished jurist, the late chancellor of this state, “must always be more admired as it is more considered and better understood."


OF TIIE LEGISLATIVE POWER. The first general point of view in which it was proposed to consider the Federal Constitu

tion was, “ with regard to the particular structure and organization of the government, and the distribution of its powers among its several branches."

I have already had occasion to advert to the rule inculcating the separation of the legislative, executive, and judicial departments of government, and to remark that it had been substantially adhered to in framing our National Constitution. These different branches, however, have not, in all cases, been kept entirely distinct; and it therefore becomes necessary to ascertain, in limine, the meaning of a political apothegm, of which none is of more intrinsic value, or stamped with the approbation of more enlightened authority.

From the sense in which the maxim in question was first applied by Montesquieu to the English Constitution, as well as from the mode in which it has been practically acknowledged in several of our state constitutions, it is evident that it was never understood to require that the three departments should be wholly unconnected with each other ; on the contrary, it has been satisfactorily shown by the authors of the “Federalist," that, unless they be so far connected and blend. ed as to give to each a constitutional control over the others, the degree of separation which the rule requires cannot be maintained. It is obvious, indeed, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the others. It is equally clear that, in reference to each other, neither branch should possess, directly or indirectly, an overruling influence in the execution of their respective powers. And although in our governments each department derives its authority from the same source, and equally represents the people, yet the legislative branch, as its constitutional powers are at once more extensive and less susceptible of precise limitation than either of the others, must necessarily possess a greater preponderance in the political system, and act with greater force upon the public mind. In order, therefore, to maintain in practice the requisite partition of pow. er, the internal structure of the government would be so contrived as to render its constituent parts, by their mutual relations, the means of keeping each other within their proper spheres of action.

The great security against a gradual concentration of the several powers of government in the same hands consists in giving to those who administer them in one department the necessary constitutional means and personal mo. tives to resist encroachments from the others. A dependance on the people is, no doubt, the primary control on the government; but experience had shown the framers of our Constitution the necessity of auxiliary precautions; and the remedy they devised for the natural predomi. nance of the legislative authority was the division of the legislative body into two branches, and rendering them, by different modes of election and principles of action, as little connected with each other as the nature of their common functions and dependance on the people would admit. The comparative weakness of the executive branch, on the other hand, was fortified, by investing it with a qualified negative on the acts of the Legislature, and connecting it with the weaker branch of that stronger power, by allowing the latter to participate in certain executive

duties; while the judicial department was deemed to be equally secure, from the nature of its constitutional powers, the permanency of its character, and the independent tenure by which its functionaries hold their offices. Thus the mutual participation, to a limited extent, of the several branches of the goverment in each other's power, vis rendered subservient to their mutual independence, and the apparent violation of a fundamental principle of the Constitution converted into a security for its preservation.

I now proceed to examine and explain the organization of these separate departments of government, as established by the Federal Constitution, in their order, and commence with a review of the Legislative Power ; under which title I shall consider,

First. The constituent parts of the Legislature, with the mode of their appointment.

Secondly. Their joint and several powers and privileges.

And, Thirdly. Their method of enacting laws, with the times and modes of assembling and adjourning

I. All legislative powers granted by the Constitution are vested in a Congress of the United States, consisting of a Senate and a House of Representatives. These terms, conferring the legislative authority, impart its limitation to the objects specified in the Constitution. And, besides the end already stated to have been proposed by the division of the Legislature into two separate and independent branches, another important object is accomplished by it, and that is, preventing the evil effects of excitement and precipitation, which had been found, by sad experi

ence, to exert a powerful and dangerous sway in single assemblies.

No portion of the political history of mankind, according to the elder President Adams,* is more full of instructive lessons on this subject, or contains more striking proofs of the factious instability and turbulent misery of states under the dominion of a single unchecked legislature, than the annals of the Italian Republics

of the Middle Ages. They arose in great numbers, and with dazzling but transient splendour, in the interval between the falls of the Western and Eastern Empires, and were all constituted with a single unbalanced legislative assembly. They were alike wretched in existence, and all ended in similar disgrace. - At the commencement of the French Revolution, many of their speculative writers, pseudo-philosophers, and visionary pol. iticians, seem to have been struck with the sim. plicity of a legislature consisting of a single cham. ber, and concluded that more was useless and expensive. This led the veteran statesman te write and publish, during his residence in Eu. rope, his great work, entitled, “ A Defence of the Constitutions of Government of the United States," in which he vindicates, with great learning and ability, the advantage and necessity of dividing the Legislature into two branches, and of distributing the powers of government among distinct departments. He reviewed the history and examined the constitutions of all the mixed and free governments which had existed from the earliest records of time, in order to deduce, with more certainty and force, his great practical truth, that single legislatures, without check or

* Defence of the American Constitutions.

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