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ing the former, or the Judiciary from supplying the needed sufficiency of the laws, and by its sheriff or marshal executing these laws, as does the President execute the laws of Congress.

Indeed, the absolute separation of the departments creates a war among them in order that each may keep its proper place. The uncontrolled acts of either power may end in despotism.

“The efficient secret of the English Constitution,” says Baghot,* may be described as the close union, the nearly complete fusion of the legislative and executive powers. “No doubt,” continues he, “ by the traditional theory, as it exists in the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the Cabinet, a committee of the legislative body selected to be the executive body.”

Whether the traditional theory, as it exists in the books, attributes the goodness of the English Constitution to the entire separation of the legislative and executive authorities, I do no not pretend to say, but it is certain that Blackstone,f a century ago, said: “The total union of the legislative and executive powers would be productive of tyranny; the total disjunction of them would, in the end, produce the same effect, by causing that union against which it seems to provide," “The true excellence of the English Constitution con

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* Eng. Const., p. 76. † Com., vol. i., p. 154.

sists in this, that all the parts of it form a mutual check upon each other.”

Our Constitution is modeled after that of England, and Blackstone described the institutions of England as our fathers knew them. George III. assumed and exercised far more power than is used by Victoria, and the growth of the power of the Commons has adapted the English Constitution to the progress of the democratic spirit, while the Reform Bills of '32 and ’67 have enabled the Commons to represent the people and not merely boroughs. The executive power is no longer the King or Queen, but in fact the Cabinet, which is as truly elective as is our President, but elected by the Commons.

The powers of our President are very like those of George III., whose separation from the two houses of Parliament and independence of them, led him to do more than merely obey the majority of the House of Commons.

While the President has a suspensive veto, and must not execute a law passed during his administration, unless two-thirds of both houses of Congress compel him, the English Prime Minister must procure a majority in the Commons or he is suspended himself. True, if the people will support his measures, he may safely appeal to the ballot for a new Parliament, but the majority of the Commons makes the laws and executes them by its own leader. Legislatures, in the name of the people, seek their own aggrandizement. The Commons of England have become almost absolute, and may also become tyrannical, as may our Congress, if the President ever abandons his veto power.

The separation of the legislative and judicial powers is very important in our system of laws, since it may be the sworn duty of our judges to make void the act of the legislature, by not obeying the requirements of its enactments.

Our Constitution being our highest law ruling the three departments of government, prescribing the powers and jurisdiction of each, it becomes of the highest importance to have a power to keep all the others within their spheres. This King, as it were, of our Federal system, is the Supreme Court, which, while performing its duty, knows no master except the Constitution and the sovereign people, speaking by an amendment to the Constitution.

At the same time, wherever discretionary power is vested in an officer, the courts, which merely declare what the law is, cannot reach the exercise of that discretion. Measures exclusively of a political, legislative or executive character cannot be reviewed or examined in the courts, since supreme authority as to those questions belongs to the legislative and executive departments.*

The people must have more checks upon the abuse of power than the separation of departments, and the supervision and check of one upon the other. Responsibility to a pure, upright constituency, and frequent elections, are necessary to preserve the people from the abuse of the discretionary power of officials. If the people be corrupt, the government cannot be popular and at the same time pure.

* In the case of Willis Lago, whom the Governor of Ohio refused to surrender to the officers of Kentucky, the Supreme Court (13 Mar., 1861,) said: “But if the Governor of Ohio refuses to do his duty, the General Government cannot compel him."

In England, the Supreme Court is composed of a committee of the House of Lords, or of the Privy Council, but since Parliament is almost unlimited in its power to pass laws, the question of the legality of acts upon which the judges themselves voted, is not apt to come before the law Lords. There is thus little fear of their acting as judges in their own case.

The belief of many wise men, in the danger of the legislature gradually destroying the power of the Judiciary, and crippling the executive, is worthy of notice. The danger having been known, has been avoided. Many cases have been decided by the Federal courts, regardless of laws passed by Congress, thus making void Congressional acts; yet no attempt to destroy the judicial power has prevailed, nor has the President lost any of his power or influence in the government, as defined by the Constitution.

While our Constitution might last but a few days with a nation accustomed to arbitrary or despotic government, our submission to the laws of the land and the adjudication of the courts, will perpetuate our Republic.*

Of the pre-eminence of our Federal Judiciary the nation is justly proud, for no chapter in American history is a more noble record than that of the United States courts. Our Supreme court may not be infallible, and its dicisions may be reversed by itself. In the Dred Scott case, in which it denied citizenship to the

* Electoral Commission, 1877.


w negro, an amendment to the Constitution was called

for to define citizenship, * and thus the people reversed the decision of its highest tribunal and at the same time gave it new and greater powers.

The tripartite division of the powers of the government then is only such an arrangement as enables one officer to check and control another. It may be said to be the key to the successful organization of free government. Separation is but a means of weakening governmental authority, responsibility being a check upon every minute ramification of power. That power to which every officer of government is finally responsible is the Sovereignty.

It is admitted by political writers that a sovereign power must reside somewhere.

France admitted it often, but placed it in some one of the branches of government. A legislature assumes itself to be the sovereign, and the despotism of an Assembly becomes one of the blackest pages of his. tory.

The thirty tyrants of Athens assume sovereign power and the many-headed monster illustrates the evils of irresponsible power.

With us, the supreme sovereign authority is not in the entire Federal government, not in the States, but in the people, if it is anywhere. The people have given up some of their power to the Federal government in trust to be used for their benefit, some to the States for a like purpose, some to the county, some to the city, but all the officers and agents of government are but servants acting under authority delegated from

* XIV. Amendment, sec. i.

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