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unfrequently irresistible. It has obliged the legislature to repeal obnoxious, and to pass popular laws; it has compelled the king to abandon his favorite measures, to dismiss his favorite ministers, and sometimes to employ others to whom he entertained a strong personal dislike. All the causes decided by the house of lords in their judicial capacity, in which they are assisted by all the judges of the superior courts, are publicly discussed by the most able counsel, and in the presence of the first jurists who lead the opinion of the nation on such subjects; and the lords, ambitious of the honors of their station, well know that the respect which they claim for their rank, depends on the public opinion of their talents and integrity. If these checks are in some instances of the moral kind only, . yet are they induced by the constitution of the government and the nature of its provisions. Nor is it any objection to the view, we have taken of the subject, that secret intrigues and corruption may sometimes render these checks ineffectual. We may then safely pronounce that this enormous, this omnipotent power of united sovereignty is not to be found in any single organ of that government, whether legislative, judicial, or executive.
The government of the United States, as has been often observed, is wholly representative. By the constitution, the different powers are entrusted to different organs, and different functionaries, and are in each defined and limited with sufficient precision. Besides that the functionaries are accountable to the people at their periodical elections, the constitutionality of all legislative and executive acts may be called in question, and decided by a competent judiciary. All executive officers, even the president and judges, are liable to impeachment and removal, for malconduct in office. Neither have the people, the original source of all power, retained to themselves the sovereignty, absolute and unlimited. It is retained under certain modifications and restrictions, agreeable to the constitution which they have submitted to observe. In this constitution there is no where lodged that united sovereignty, that supreme power, absolute, uncontrollable, arbitrary, and despotic, which it is declared, must, in all governments, reside somewhere,
and is alike in all countries. If such be the necessary definition,
our constitution has no provision of internal sovereignty; and yet experience has evinced that the powers of this government, so limited and controlled, are fully competent to the great end of all civil institutions, the permanent happiness of the people, and the prosperity of the state.
CH A PTER III.
Of the political power-its depository and limitations in different governments,
This subject has been incidentally anticipated in some degree in the preceeding chapters ; but its importance as the primary and fundamental power in the state, in which originate all the civil powers, and by which alone those powers can be limited, controlled, and directed to their great end,—the security and happiness of the people, renders a further discussion necessary, in which I shall endeavor to be concise, and to avoid repetition, except where it may be necessary to a more full illustration.
The political power is distinguished from the civil powers in the same manner as political rights are distinguished fro'n the civil rights; and is exercised in forming, altering, or amending the civil compact or constitution of the state,-in which respect it is the power of political legislation ; and in guarding the exercise of the civil powers, and holding the functionaries accountable in such way and manner as is provided in the constitution,-in wbich respect it is the guardian power of the state. But this power of political legislation has rarely among the nations of the world, been actually and deliberately employed in political systems, or constitutions of government. Few governments, ancient, or modern, have been constituted by an express compact made by the people, a constitution deliberately formed. The powers of government have, in most instances, been on emergencies blindly conferred on one, or a few individuals ; have been assumed by fraud or violence; or through a succession of ages, been suffered to accumulate in one or more families and to become sacred in their hands. Thus the powers of government came to be considered as the right and privilege of the ruler, distinct from, and paramount to the rights of the people. Men have conducted as though whatever of good was enjoyed by the people was to be derived from the condescension of the rulers, a mere concession of clemency. Doctrines like these have in all ages, by the ambitious few, been but too successfully inculcated on the minds of the people. From this source has been derived the doctrine of the present perfection of government, the infallibility of rulers, and the divine right of kings ; and hence a total annihilation of all the political rights and power of the people.
On the other hand, the people, from a sense of the horrid oppressions which universally accompany such absurd conceptions of power, have at times plunged into the extremes of anarchy and popular violence. They have been driven to a feeling, rather than a rational investigation of their rights. They have been unable to distinguish between a personal right in the ruler, and a mere trust of power; still less have they been able to establish any laws of accountability, which might operate to prevent the abuse, without a constant resort to violent
Thus embarrassed, they have frequently balanced between the horrors of tyranny and the violence of faction.
Neither the Greeks nor the Romans had any correct or definite notions of political and civil liberty and the natural rights of man; of those relations from which result the sacred laws of his nature. From the ignorance of their lawgivers on these points, which was indeed the ignorance of the age, there were always radical defects in their constitutions of government. In all their systems they made little or no distinction between
the political and civil laws; between the laws of the constitution by which the state is organized, and its efficient powers directed and limited, and the laws of property and personal rights; and yet without a careful attention to this distinction, personal rights can never be permanently secured. The laws of the constitution, the political laws, are to those entrusted with the
powers of government, what the laws made by the government, are to a court of judicature. Those courts are bound by the laws, but have no power to make or alter them. In like manner the government, that is, those organized bodies who are entrusted with its powers, are bound by the constitution as the supreme law, but should have no power to alter or add to any of its provisions.
Hence it is evident, that in an absolute or despotic government, there can be no political laws, laws of the constitution, binding on those who exercise the powers of government. The prince, arrogating to himself all powers, political and civil, can be bound by none of his laws as they relate to his own conduct. All such laws and regulations, although in the form of royal ordinances, and promulgated with all possible solemnity, are nothing more than present resolutions subject to the caprice and momentary fluctuations of the tyrant's will. In such governments, however, there will always be found some custom or ancient usage, from whatever source derived, that is by the people held more sacred than the authority or person of the prince ;--and which, he cannot with impunity, and dares not violate.
Such is said to be a customary law among the Turks, derived from some passage in the Koran, that the sultan shall levy no new tax on his subjects. The sultan knows that an attempt
. to enforce such a measure would excite the unrestrained indignation of every class of his enslaved people, and that his head or at least that of his favorite minister must be the forfeiture. In a more polished state of society, the absolute monarch, not only feels himself limited by some custom, some mode of thinking, which time, or perhaps religious opinion has rendered sacred among the people, but he is, in a degree, restrained by that respect, which he finds it necessary to pay to the manners of the age, and of his own country, and to the general sentiments of his own subjects. Still he can be subjected to no positive laws or regulations in the exercise of authority. Under such a government there can be no political laws, or political rights. Different is the case of all governments founded in legitimate civil compact. They are capable of positive regulations, of constitutional laws limiting with a good degree of precision the powers of government in their exercise, and directing them to the great end of political and civil institutions, the secure enjoyment by the people, of their rights natural, civil, and political, and the promotion of the general interest and happiness of the community.
Of the three forms of government founded in the civil compact, a democracy is the most liable to fluctuation in its political and civil institutions; because in that government, the citizens, who are in possession of unrestrained political liberty, constitute their legislative assemblies, each citizen having an equal voice in passing all laws whether of a civil or political nature, as well as in appointing those who administer the laws; and although every law, while remaining in force, is binding on the whole community as well as on each individual; yet from the nature of the government, they are at all times liable to be altered, changed, and repealed at the will of a majority, subject to all the fluctuations of popular passions, and prejudice.-And further, as all laws are enacted and are under the control of the same body, there can be no distinction of constitutional and unconstitutional law ;—the last law passed on every subject is always constitutional, must be so considered by every one in the civil administration. Although it has been often asserted by the advocates for this form of government, that no people will oppress themselves, yet the majority often adopt measures very oppressive to their opponents, the minority, and in the violence of party spirit, not unfrequently with that view-a situation to which all are in turn exposed. The people have also at times, under some powerful excitement, or sinister influence, been induced to adopt those measues that led to the inevitable ruin of their liberties. So true is it that the extreme of liberty verges on the extreme of tyranny, a situation into which it finally, and often suddenly degenerates.
In a mixed government, of which we have already given a