Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-10

III, therefore, the legislative assumes the el
ecutiVe and Judicial powers, no oppositio
Is likely to be made, nor, if made. can B
etectual, because in that case they NAV pu
their proceedings in the form of an aes {
assembly, which will render them obliga
tory on the other branches They have
accordingly, in many instances, decide,
rights which should have been left to tn
Judiciary. Controversy ard the direction Q
the executive, during the whole time @
/ their session, is becoming habitual an,
familiar.
Mr, Justice Storey, in his commentarie
on the constitution reviews the same sub
I ject, and says, "the truth is that legisla
tive power is the great and overriding
power in every free government"
The representatives of the people vii
watch with Jealousy every encroaehment o
the Executive Magistrate, for it trenches
upon their own authority. But who shall
! watch the encroachments of these repre-.
| sentatiyes themselves? Will they be as
jealous of the exercise of power by them
selves as By Others? There are many rea-
sons which may be assigned for the en-
crossing influence of the Legislative depart
ment. In the first place, its constitutional
powers are more extensive and less capable
of being brought within precise limits than
those of either of the other departments.
The hounds of executive ats horify, are
easily marked cut and defined. II reaches
few objects, and those are known 1t can
not transcend them without being brought
in contact with other departments. Laws
may check and restrain and bound its ex-
ercise. The same remarks apply with still
greater force to the judiciary. Its iuris-
diction is, or may be, bounded to a few OBJ
Jects or persons, or, however general and
unlimited, its operations are necessarily
confined TO the mere administration of pri-
vate and public justice II can not punish
without law. II can not create controVer-
sizes TO act upon. II can decide only upon
rights and cases as they are brought by
others before it. 1t can DO nothing for
itself II must do everything for others.
lt must obey the laws, and if it corruptly
administers them, is subjected to the power
of Impeachment On the other hand the
legislative power, except in the few cases
of constitutional prohibition is forever
varying its means and its ends. Itgoverns
the institutions and law and public
policy of the country; it regulates all
IFS vast interests it disposes of all
its property. Look but at the exer-
else Of two or three branches of its ordina-
ry powers. 1t leyies all taxes; it directs
and appropriates all supplies; it gives
rules for the descent and distribution of all
property held by individuals; It controls
sources and resources of wealth IT changes
at its will the whole fabric of laws it
moulds at its pleasure almost all the institu-
tons which give strength, and comfort, and
dignity to society. In the next place, it is
the direct visible representative of the will
of the people in all changes of time and
circumstances. lthas the pride as we'll as
power Of the numbers. 1t is easily moved,
and steadily moved, by the strong impulse
of popular feeling and popular odium. II
obeys, without reluctance. the wishes and
and Wlll OF the majority for the time being.
The path to public favor lies open by
such obedience, and it finds not only sup
port but impunity in whatever measures
the majority advises, even though they
transcend the constitutional limits. Ii has,
therefore, to be jealous or scrupulous in its
own use of power, and its arm strengthened
by the cOuntenance and courage Of num-
bers, These views are not alone those of
men who look with apprehension upon the
fate of republics, but they are also freely
by the strongest advocates for
popular rights and the permanency Of re-
publican Institutions Each department
should have its own dependence secured
beyond the power Of being taken away BY
either or both Of the others. But, at the
same time, the relations ofeach to the other
should be so strong that there should be /.
mutual interest to sustain and protect each
other There should not only be constitu-
tutional means, but personal motives to
resist encroachments of one or either Of the
others.
Thus, ambition would be made to coun-
teract ambition; the desire of power to
check power, and the pressure Of interest
to balance an opposing interest The Ju-
dietary is naturally and almost necessarily,
as has been already said, the weakest de-
partment. 1t can have no means of inhu-
ence by patronage Its powers can never
be welded for itself. 1t has no command
over the purse or sword of the nation. 1t
can neither levy taxes nor appropriate
money, nor command armies, nor appoint
to office. 1t is never brought into contact
with the people by constant appeals, solici-
tations and private intercourse which be-
long to all other departments of the Gov
1t is seen only in controversies
or in trials and punishments. It's rigid
Justice and impartiality give it no claims
to favor, however they may to respect.
1t stands solitary and unsupported, ex-
cept by that portion of public opinion which
is interested only in the strict administra-
tiOn of Justice. II can scarcely secure the
sympathy or zealous support either of the
executive or legislative if they are not
as is not unfrequently the case, Jealous of
its prerogatives. The constant necessity Of
acts of each upon application
Of any private person, and the painful duty
Of pronouncing Judgment that these acts
are departure from the law or constiE
ion, can have no tendency TO conciliate
or nourish influence.
1t would seem, therefore, that some addi-
ional guards would, under such ciroum-
stances, be necessary to protect this depart
nent from the absolute dominion of the
)thers. Yet rarely have any such guards
been applied, and every attempt to intro
luce them has been resisted with peril
lacity which demonstrates how slow popu-
ar leaders are TO introduce checks upon
heir own power, and how slow the people
ire to believe that the judiciary is the real |
oulWark of their liberties.
If any department of the government
las undue influence or absorbing power, it |
has not been either the execu-
i've or judiciary. In addition to what has
been said by these distinguished writers, it
nay also be urged that the dominant party
n each House may, by the expulsion of
sufficient members, or by exclusion from
of requisite number Of
States, reduce the minority 10 less than
1ne-third. Congress, by these means, might !
be enabled to pass a law, the objections of
he President to the contrary notwithstand-
ng, which would render impotent the other
-wo departments of the government, and
make imperative the wholesome and re-
power which it was intended by
he trainers of the constitution should be
7xerted by them. This would be q practi-
al concentration Of all power in the Con-
yress Of the United States. This, in the
language of the author Of the Declaration
IF Independence, would be precisely the
Of despotism. have proceeded
70 produce the teachings Of great statesmen
lnd constitutional lawyers of the early and
ater days Of the republic, rather than to
rely simply upon an expression Of my own
opinions
We cannot too often recur 10 them, espe-
,ially at conjunction ike the present.
Their application to our actual condition
y so apparent that they nov come to US a. !
! living voice, to be listened 10 with more
attention than at any previous period Of
)ur history We have been, and are vet
N the midst Of popular oommotiou the
PASSIONS aroused bv 4 great civil war are