The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-01-08

powers, no opposition Is likely TO be made, nor
IL made, can be effectual, because in that case
they may put their proceedings tnto the form
OF an net OF assembly, which Will render them
obligatory on the other branches. Ihey nave,
accordingly, In, mang instances decided rights
which should have been left 10 judicial contro-
versy. and the direction OF the Executive dn-
ring the whole time of their session Is be-
coming habtnal and familiar.
Mr.. Justice Story, In his commentaries on
the Constitution, reviews the same subject
and saws: "The truth Is, the legisIaiive
power is the great and sovereign power IN
every free government. The Represents tives
of the people will watch with JEALOUSY every
encroae h,nent Of the Executive Magistrate, Tor
IL trenches upo' their own authority. But
who shall witcn the encroachment OF THESE
Representatives themselves WIZ they DE rs
Jealous Of the exercise OF power by them-
selves a. by Others There are many reasons
which may be assigned for the engrossing In
fiuence Of the Legislative department. 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 bounds OF the Executive authority are
easily marked ont and defined II reaches Few
objects and those are known. II cannot tran
scrnd them without being brought in contact
with the other departments. Laws may cneck
and restrain and bound its exercise. Inc same
remarks apply with still greater force 10 the
judiciary. The Jurisdiction Is or may be
bounded TO few objects or persons, or, however
general and unlimited its operations, are ne
uessarily confined TO the mere administration
Of private and public justice. Itcannot pun
ish without law. II cannot create controver-
sizes to act upon. It can decide only upon rights
and cases as they are brought by others be-
fore ii. 1t can do nothing for itself. IL must
do everything for others. Ii must obey the
I,.,.p fofn thnrr
is subjected to the power of impeachment,
On the other hand, the legislative power, ex.
cept In the few cases Of constitutional
prohibition, 10 unlimited. II Is forever
ranging Its means and its ends. Ii governs
the ms titutions, and the laws and public policy
of the country. 1t regulates all its vast int.
rests 1t disposes of all its property. Look
but ut the exercise of two or three branches OF
its ordinary powers. 1t levies all taxes; IL di.
reefs and appropriates all supplies IL gives
the rules for the decent distribution and de-
yises of all property held by individuals; IL
controls the sources and the resources Of
wealth Ii changes 1T its will the whole Ia
brio Of the laws; IL moulds 1t its pleasure
almost all the institutions which give strength
and comfort and dignity TO society. In the
next place, 1t is the direct yisitant OF the Will
of the people in the changes Of times and cir
Gums stances; IL has the pride as well as the
power Of numbers. 1t is easily moved ana
steadily moved by the strong impulses OF popu-
lar feeling and popular odium. Ii obeys with.
out reluctance the wishes and will OF the ma
iorty for the time being. Inc PAIN 10
public favor lies open to such obedience, ana II
finds not only support, but but IMMUNITY In
whatever measures the majority advises, even
though they transcend the constitutional IL
mits. 1t has no motive, therefore, TO be Jea'
lous or scrupulous in its own use Of power,
and IL finds its ambition stimulated, and It's
arm streng thened by the countenance and the
courage OF numbers. These views are not alone
those of men who look with apprehension upon
the fate of republics, but they are also freely
admitted by some of the strongest advocates OF
popular rights and the permanency OF repub.
iicau institutions. Each department should
nave will OF its own each should have its
own independence secured beyond the power
IF being taken away by either or both OF
the others. But at the same time the rela tons
of each to the other should be SO strong
that there should be n mutual interest 10
sustain and protect each other. There should
not not only be constitutional means, but per-
soual motives, to resist Entertainments OF one or
either OF the others. Thus ambition would
be made 10 coun teract ambition, and the de-
sire OF power 10 check power, and the pressure
of interest 10 balance an opposing interest.
The Judiciary is naturally and almost neces-
sarly, as has been already said, the weakest
department ii can have no means Of infiu-
ence by patronage. Its powers can never be
welded for itself it has no command over
the purse or the sword of the nation. 1t can
neither lay taxes, nor appropriate money, nor
command armies, nor appoint To Office. IL is
never brought III to con tact with the populace
uy constant appeals aud solicitations and pri-
vate intercourse which belong 10 all the other
departments of government. 1t Is seen
only in controversies, or in trials and
ptiuishmrut.; its iigid Justice and im-
partiality give il no claims TO favor how.
ever they may 10 respect. 1t stands soil
tary and unsupported, except by that pur-
zion of public opinion which l. interested only
IN the strict administration OF justice. 1t can
rarely secure the sympathy or Jealous support,
-ithvr OF Executive OF Legislature, II they are,
: H. not nuirequently the case, Jealous of ITS
prcrogatiyes, the constant Necessity OF scruti-
liZlug the acts OF each upon the application
81 any private person, and the painful duty
If prououucing Judgment that these acts are
departure from the l,lw or Constitution, can
aaycno tendency 10 CouCl!lite Kindness or
uuursh influence. 1t would seem, therefore,
that some additional guards would, under
such circums tancrs, BE- necessary To protect
This department from the absolute domiuion
Of others. Yet rarely have any suCh guards
been applied, aud every attempt 10 Introduce
Them have been resisted with pertiuacil y
which demonstrates how slow popular leaders
re 10 IN troducr checks upon their own power,
and how slow the people are 10 believe that
he Judiciary is the real bulwark OF their Ii
DrrtIes.
If any department OF the Government has
undue influence or absorbing power, II GER
tainly has not been either the Executive or the
Judiciary. In addition TO what has been SAID
Dy these distinguished writers, IL may also be-
urged that the dominant party In each House
may by expulsion of 4 sufficient number OF
members, or by exclusion from rcpresen II ton
OF 4 requisite number OF States, reduce the
minority TO less than one-third. Congress by
these means might be enabled 10 pass Il law,
the objections of the President to the con trary
Notwithstanding. which would render impo-
tent the two other departments of Government
and make imperative the wholesome and re-
straining power which IL was intended by the
trainers of the Constitution should be exerted
by them. This would be- practical concentrt-
ton of all power in the Congress of the United
States. This, in the language OF the author OF
the Declaration of Independence, would be
precisely the definition of 4 despotic govern
ment. l have preferred TO reproduce these
teachings of the great statesmen and consti-
tutional lawyers OF the early and later days OF
the Republic rather than TO rely simply upon
an expression of my own opinions. We can
not too often recur to them, especially ut a
conjunction like the present Their applica-
ton TO our actual condition is so appa-
rent that they now come 10 us as a liy-
ing voice, 10 be listened to with more
attention than at any previous period OF
our history. We have been, and are yet,
in the midst OF popular commotion. The pas
sions aroused by great civil war are still do.
minant. 1t Is not Il time favorable to that
calm and deliberate judgment which is the
only safe guide when radical changes in our
institutions are 70 be made. The measure now
before me is one of those changes IL initiates
an untried experiment for people who have
said with one voice that II is not for their
good. This alone should make US pause but
II is not all. The experiment has not been