ter. It is sufficient now to say that the House of Representatives has the sole power of inaugurating the proceeding,1 and the Senate are the sole judges for trying the accusation. It is generally conceded that impeachment is a sanction applicable not only to acts which are made crimes by the law, but also to political acts which are wilful, intentional, and corrupt, and of course, to intentional violations of the Constitution by a civil officer. But the law regards many wilful and corrupt political acts, done by official persons as positive crimes; and for these the offender is liable to be indicted, tried, convicted, and punished. according to the ordinary course of administering the criminal. law. This subject, however, hardly falls within the scope of constitutional law, and will be passed by without further com ment. § 150. By far the most important means for assuring the observance of the fundamental law, is the power residing in the courts to declare a statute of Congress or of the state legislatures void, and an executive act unauthorized, when in contravention to the provisions of the Constitution. The other sanctions punish the offender, this relieves the citizen; the others do not affect the wrongful measure, this takes away its power to injure; the others look chiefly to the guilt of the official agent, this to the rights of the people. Assuming that the Supreme Court of the United States is the final depositary of this power, we are to inquire how that tribunal is to proceed in the exercise of its most important attribute. The Constitution which creates the Supreme Court, defines its jurisdiction. The exercise of this jurisdiction is confined to "cases" and "controversies." 3 "Cases" and "controversies" plainly refer to the same thing, and are general words to describe the ordinary proceedings by which the contentions of litigant parties are brought before a judicial tribunal for decision. A "7 case or "controversy " involves the idea of a party prosecuting in a court to establish or maintain some right or enforce some duty against another party. The Supreme Court, there 66 1 Const. Art. I. Sec. 2, § 5. 2 Const. Art. I. Sec. 3, § 6. fore, can only exert its function of interpreting the Constitution, by hearing and determining some case or controversy brought before it. The adjudication upon the rights and duties of the parties is the principal thing, the construction of the Constitution is incidental. The Supreme Court cannot, under the form of a case brought before it, interfere with the political functions of the President or of Congress. Thus an injunction could not be issued to restrain the President from enforcing a statute on the ground that it was contrary to the Constitution and void; a suit demanding such relief against the Executive would not even be entertained. The same would be true of any attempt to restrain Congress as a body, or individual members of the legislature, from passing a proposed measure. This point was expressly decided in the recent extraordinary case of the State of Mississippi v. Andrew Johnson, to which a more extended reference will be made in a subsequent chapter. Thus the duties of the Congress, the President, and the Supreme Judiciary are kept distinct; the work allotted to each is left in its own hands; it is only the results of that action, the juridical rights and duties created by it, which can give rise to an opportunity for the Supreme Court to examine the work itself and pronounce upon its validity. PART THIRD. WHAT POWERS, CAPACITIES, AND DUTIES ARE CONFERRED OR IMPOSED UPON THE NATIONAL GOVERNMENT, AND WHAT ARE CONFERRED OR IMPOSED UPON THE SEVERAL STATES! CHAPTER I. THE LEADING IDEAS OF CIVIL POLITY WHICH ENTER INTO THE ORGANIZATION OF THE UNITED STATES. § 151. I Now pass to the third grand division of the subject, which is the one of most practical importance, and in respect to which the most minuteness of detail and illustration is needed: What are the powers and capacities of the government of the United States? In treating of this theme I shall proceed in the following order: First. To develop, in a brief manner, the leading ideas of civil polity which are involved in the whole complex system of political organization; Secondly. To describe the external form of the government, and the methods by which the machinery is kept in motion; and Thirdly. To state and discuss the powers and functions of the Legislative, the Executive, and the Judicial Departments separately. § 152. What are the leading ideas of civil polity involved in the complex system of political organization, which the people of the United States has contrived? Thus far our thoughts have been constantly directed to the nationality of the one people of the United States, and to the 100 CENTRALIZATION AND LOCAL SELF-GOVERNMENT. capacities which inhere in them by virtue of that nationality. I have purposely refrained from speaking with any emphasis and at any length of the limitations which the people has placed upon its rulers. The division of powers and the rights of the separate states under the Constitution have been designedly kept out of view. The phrase, "rights of the states," is used advisedly. The quality of sovereignty is denied to these local communities; the term "sovereign states," I deem to be illogical, absurd, opposed to the truth of history. But, still, the states have rights as perfect within their sphere, in the present condition of our organic law, as those of the general government. Their only badge of inferiority is, that the people, if they see fit to proceed by the means of amendments to the Constitution, may abridge, or even destroy them. § 153. But while our fundamental law stands untouched, the powers of legislation and administration held by the several states, are derived from the same source, rest upon the same foundation, are affected by the same attribute of inviolability, as those reposed in the government of the United States. That single source, that common foundation, is the people. It is true that the powers and functions intrusted to the central organization have a wider field of activity, are, in their essence, higher and more national than those intrusted to the local commonwealths; but within their respective limits of operation, each class is uncontrolled by the other. § 154. Such is the plan of the entire political structure, and its wisdom and efficiency have been proved by the whole course of our history. Those affairs which are peculiarly national, which affect the body of citizens, are managed by the one central government created by the people. Those affairs which are local, which affect the individual citizen in his private capacity abstracted from his relations to the whole political society, are managed by the separate state governments which were found in existence and left remaining in existence by the same Constitution. § 155. The whole civil polity is thus based upon two grand ideas as its foundations and supports; the idea of Local SelfGovernment, and the idea of Centralization. The first was borrowed from the tribal customs of the Saxons and other Germanic tribes who invaded Western Europe; the second is a heritage from Rome. The one is the safeguard of liberty; the other the source of power; liberty and power, two elements which should enter into every political society. The history of the world is the history of struggles between these contending forces. In a perfect State they would be so combined that there should be just so little power as was necessary to protect and guarantee the largest amount of liberty. It is a nice equation to adjust so that these variables may exactly counterbalance each other. The endeavors of the one force to rise, and of the other to repress, have checkered the annals of every people with wars, anarchy, oppression, and revolt. History points to but few instances in which an equilibrium has been reached and for any long period of time maintained. England and our own country are, perhaps, the only countries in our own age in which it can be pretended that the contending forces have settled to rest. 156. A single, centralized government is necessary in order that there should be power to maintain the integrity of the nation. Local self-governments are necessary in order that there should be individual liberty enough to meet the encroachments of the central power and maintain the freedom of the citizen. As political writers have regarded the one or the other of these results the more important, they have favored the one or the other form of administration. Jefferson was, in theory, a passionate lover of liberty, and he was fearful that the Constitution gave too much scope to the national rulers. Other public men of a former day dwelt more on the necessity of a strong force at the centre to keep together the parts whose natural tendency was outward; and they feared that the several states had been left in possession of too many and great capacities, which would finally be destructive of unity, and, as a consequence, of liberty. We believe that both these schools of theorists were wrong. We believe that the Constitution grants to the agents appointed to manage the national affairs, power enough to meet any emerWe also believe that it has clothed the separate states gency. |