The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-01-08

:. :: CHARLESTON, y.
the Judiciary power, resting on o still more per
manent basis, should have the right OF determm
ing upon the validity of laws by the standard Q
the Constitution. T5o necessity Of some sucf
check in tho hands Of the Executive is shown b.
reference to the most eminent writer's upon ou
system of government, who seem to- concur In tn'
opinion that encroachments are most to DC appre
hended from the department in which all the leGls
lative powers are vested by the Constitution.
Mr.. Madison, in referring to the difficulty OF pro
viding come practical security For each against th
invasion of the others, remarked that the leSlsia
tive department is everywhere extending INT
sphere Of its activity, md drawing all power mtt
its impetuous vortex. The founders Of our Repnb
lie seem never to have recolleced the danger iron
Legislative usurpahon, which, by assembling 81
power in the same hands, must lead to the sams
tyranny as is threatened BY Executive usurpatons
masistracy is carefully limited, both in the exten
and the duration Of it's power, and where the egls
lative power is exercised by an assembly, Wnlcn Il
inspired by supposed influence over the Poopie
vita an intrepid confidence in it's own strength
viii Ii is sufficiently numerous to feel all the pas
sions which actuate o multitude, yet not 80 nume-
rous as to be ncapabls of pursuing the objects. o
its passions, by means which reason prescnDes-
it is against tho enterpris:ng ambition OF this de
plrtment that the people ought to indulge theu
The Legislative department derives supremacy
in our Government from other circumstances. its
constitutional powers being at once more extensive
and less susceptible OF precise limits, it can, with
the greater facility, mask under complicated anS
Indirect measures the. encroa hments which il
makes on the ordinate departments. On the Other
side, the exclusive power being restrained within
narrower compass and being more simple IN 1ts
nature, and the Judiciary being prescribed BY land
marks still less uncertain, projects OF usurpatlor
betray and defeat themselves. Nor is this all AS
tho Legislative department alone has access to the
pockets of tho people, and has, in some constltu.
tions, full discretion, and in all prevailing lntu
once over the pecuniary awards Of those connected
with the other departments, 8 dependence is
thus created in the Inter which gives still greater
facility to the cncroachments Of the former.
We have soen TINT the tendency Of republican
governments is to an naggrandlsement OF the legis-
lative at the e3pense OF the other departments
Of of vrginia Objected that provisions ali the
powers Of government egialatiye executive and
iudicial-resulted to the Legislative body holding,
that the concentrating these in the same hands
is precisely the definition of dospohc government
II will be no alleviaon that there is plurality Of
hands and not q single one-one hundred and
seventy-three despots would eurely be as oppres-
sive one AS little win it avail us that they arc
chosen by ourselves. An elective despotsm was
not the government We fought for, but one which
sbsuld not only be founded on free principles but
in which the powers Of government should be 30
divided and balanced among several bodies OF
magistracy, as that no one could transcend their
egnities without being efectually checked and re-
strained by the others. For this reason the con-
vontion Which passed the ordinance of government
laid it's foundation on this baais that the legsls.
tive executive and judiciary departments should
be separate and distinct 30 that no person should
exercise the powers OF more than one OF them at
the same time.
But no barrier was provided between these seve-
raj powers. The Judiciary and Executive mem
bors wero left dependent on the legislative for
thoir subsistence in Office, and some OF them for
their continuance in it. IT, therefore, tho logisla-
opposition is likely to be made, nor, if made, can
be cffectual, because, in that case, they may put
thoir proceedings into the form OF an Act OF A.
sombly, which will render thom obligatory on the
other branches. They have accordingly, in many
instances, decided rights which should have been
left to Judiciary controversy, and the direction OF
the Executive during the whole time OF their ses-
sion, is becoming habitual and familiar. -
Mr. Justice Story, in his Commentaries on the
Constitution, reviews the same subject and says: !:
The truth is that the Legislative power is the great
and oyerruling power in every free government.
The representatives Of the people will watch with
jealousy overy encrcachment OF the Executive
Magistrate, for it trenches upon their own author1.
ty; but who shall watch the Entertainments OF
these representatives themselyesr Will they be
as jealous of the exercise Of power by themselves
as by others There are many reasons which may
be assigned for the engrossing influence OF the
Legislative department. In the first place, lts
constitutional powers are more extensive and less
capable of being brought within precise bounds
than those Of either Of the other departments. The
bounds of tho Executive authority are easily
marked out and defined. 1t reaches few objects,
and these are known. It cannot transcend them,
without being brougha In contact WITH the other
departments. Laws may check and restrain and
bound its exercise. Tho same remarks apply with
still greater force to the Judiciary The jurlshc-
ton is or may be bounded to q few objects or per-
sons or, however general and unlimited, It's oP-
eratons are necessarily confined to the mere ad-
ministration Of public and private justice. 1t ean-
not punish without law, it cannot create oontro-
vcrsics to act upon. It decide only upon rights
and cases. as they are brought by others before it,
It cau do nothing for itself. 1t must do everything
for others. 1t must obey the laws, andlf 1t COR
ruptly administers thom 1t ID subject 10 the power
or Impeachment
On the otaer hand, the Legislative power, ex-
cept in sho few cases Of constitutional prohibition,
is unlimited; it :s forever varying its means and
its ends it governs the institutions and laws and
public policy Of the country it regulates all 1ts
vast interests; it disposes Of all its property.
Look but ut tho exercise Of two or three branches
OF its ordinary powers 1t levies all taxes and it
directs and appropriates all supplies 1t gives the
rules for the descent, distribution and devlaes OF
all property held by individuals; it changes at it's
pleasure almost all the institutions which give
strength, and comfort, and dignity to society. In
tho next place. it is the direct, visible representa-
tive of the Will Of the people in all the changes OF
times and circumstances. It has tho pride as well
rs the power of numbers; it is easily moved and
steadily moved, by tho strong impulses OF popular
feeling and popular odium it obeys without T re-
luctanco tho wishes and tho will of the majority for
the time being. The path to public favor hes open
by such obedience, and it hnds not only support,
y,otn he
advises, evon though they transcend tho constltu-
tional limits. 1t has no motive, therefore, to be
jealous or scrupulous in its own uso OF power and
it finds. its ambition stimulated and its arms
strengthened 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 tho
strongest advocates for popular rights and the
permanency of republican institutions. Each de-
partment should have will Of its own: Each
should have its own Independence secured beyond
the power of being taken away by either or both
of the others, but at the same time the relatlone
OF oach to the othor should be 80 strong that there
should be mutual interest to sustain and protect
each othor There should not only be constitutional
means but personal motives also, to resist the on
croachmenfs Of one or either Of tho others. Am
bltion would thus be made to counteraet ambi.
tiou,-the desire OF power to check power and
the pressure Of interest to balance an opposing In
tercst.
The Judiciary is naturally, and almost neces.
sarily as has becn already said, the weakest de-
partmout. It can have no means OF influence BY
patronage Its powers can never be welded for
itself 1t has no command over the purse or the
sword of tho nation. It can neither 10y taxes, mol
appropriate money, nor cou,.uand armies or ap.
point to Office It is never brought into contact
with the people by constant and solicitations
and private intercourse Which belong. to all the
in controversies, or in trials and punishments. ItH
rigid justice and impartiality give it no claims to
favor, however thoy may to respect; 1t stands
solitary and unsupported, except by that portion
of public opinion which is interested only IN the the
secure the sympathy or Jealous support either Of
the Executive or of the Legislature. II they are
not, as is not unfrequently the case, jealous Of ta
prcrogatves, the constant necessity of scrutiniz-
ing the acts Of each upon the agpiestion OF any
3np iudrment. that these acts are departure