صور الصفحة
PDF
النشر الإلكتروني

presentation of all classes and interests in our House of Commons by such a distribution of the franchise as will enable representatives of all classes to obtain a place there. The Constitution of the United States looks to the "

great variety of interests, parties, and sects which it embraces,” as the security against a coalition of a majority to overbear the wills, and affect the interests of a minority, by sudden and hasty acts of legislation. Which of the two best answers its purpose, we need not at this moment stop to argue. It will be entered upon elsewhere. No human institutions are perfect; but in intention and principle the Constitutions of Great Britain and of the United States are on this important point the

Both seek to break the force of ma. jorities, and, as it were, to stay their hand, until the majorities themselves have had time for mature reflection, and until minorities have been able to exercise the effort, always difficult even to the calmest minds, of looking at questions that threaten their interests or thwart their opinions, from the points of view

same.

that lead to the conclusions which are prevailing against them. It is thus only that minorities can have time to prepare for, and adjust themselves to, the coming change.

However temperate and forbearing in principle and intention, and therefore similar to our own, the Constitution of the United States may be in those particulars, the constitutions of the individual States partake very little of that spirit, and the tendency of the whole of them has been, from the period of the Revolution to the present day, to weaken or do away with any checks or impediments that existed in their original forms of government, upon the immediate action of the numerical majority of voters, and thus to assimilate themselves more nearly to pure democracies. The particulars of these changes will be found in a

future page.

CHAPTER VI.

NECESSITY OF SEPARATING THE LEGISLATIVE, EXE

CUTIVE, AND JUDICIAL POWERS.

The necessity of the separation of the three great powers of a State—the legislative, the executive, and the judicial, is a truth so elementary, that it requires in this country no argument to enforce it. “It is,” says Paley, “ the first maxim of a free State ;" and Montesquieu had before observed, that there can be no liberty where those three powers are not kept distinct.*

Accordingly, Mr. Justice Story remarks, that “it is no small commendation of the Constitution of the United States, that instead of adopting a new theory, it placed this practical truth as the basis of its organisation.” +

* Esprit des Lois, Liv. xi. c. 6.

+ $ 524.

ing upon

The judicious blending of these powers to a certain limited extent, as noticed by Blackstone, does not militate against, but strengthens this principle, by promoting unity of action between the whole, without infring

the independence of either. Thus the sovereign of this country “is a part of the Parliament;" the Crown appoints the judges, but cannot remove them; the House of Lords possesses both legislative and judicial powers; the House of Commons exercises the

power

of impeachment; and the judges occasionally “ assist in the deliberations of the House of Lords by giving their opinion upon matters of law referred to them.” This same blending of these three powers exists also in a similarly limited and useful manner in the Constitution of the United States; and it is a point which has been defended by all the ability of the authors of the “ Federalist,” and the framers of the Constitution. In the constitutions, however, of several of the States, a less regard is paid to this vital principle of liberty; and in many of them, it has been entirely aban

doned; both the appointment and the payment of the judges having in some of the States been assumed by the legislature, while in others the judges have to submit to the ordeal of a popular election once every few years. .

Impressed with the conviction that the independence of the judiciary is the great guarantee for the maintenance of the Constitution of the United States, and aware of the tendencies of the public mind in many of the individual States to overrule that principle, Mr. Justice Story, following the authors of the “Federalist, labours to remind his countrymen of the necessity of maintaining “some practical means” for the security of the judiciary “ against the meditated or occasional invasions” of either of the other two powers. He shows that, of the three powers, the judiciary “is incomparably the weakest,”* and that the danger most impending over their country was that of the usurpation by the legislative bodies of all the powers of the State.

“In a representative republic, where the executive magistracy is

* $ 531.

« السابقةمتابعة »