« iepriekšējāTurpināt »
of sovereign authority is vested in our legislative bodies, only so far as is practically necessary to present the controlling force and authority of our own statutes.
Sovereignty, it is true, in our own, as well as in all other civilized governments imports the supreme, absolute, uncontrollable power by which any state is governed, a but sovereignty, in our republican form of government, is not vested alone in the law-making power.
It is not true therefore, in our form of government, as is laid down in the philosophy of Paley, that the sovereign power is necessarily lodged in one separate and distinct department of government where it remains absolute and uncontrolled;b nor according to the theory of Burlimaqui, that when its seat is ascertained, it possesses the power to judge in the last resort of whatever is susceptible of human direction which relates to the welfare and advantage of society; and that in this respect it acknowledges ne superior or equal. These, and many others of the ancient writers upon this subject, based their opinions upon the assumption, that princes ruled by a right Divine, conferred by the immediate act of the Deity. But even this theory, has been exploded by the government of Great Britain, and most of the English writers now claim that the parliament of England, possesses the attribute o political, legal and moral omnipotence. c
By the theory of our government, the primary, as well as the ultimate sovereignty in human affairs, is in the people, from whom, all legitimate civil authority springs. This is applicable not only to the National, but to the State governments. In the international sense, the word State, is applicable only to the federal government, but as between the sovereign members of the American union, the word Nation is used as applying to the federal, and State,' as applicable to the several component members.
a Story on Const., § 207.
b Paley's Mor. Philos., Pt. 2, p. 185.
c 1 Black com. 160, 408; 8 Co. 118, Bac. Abr., stat. A.
NOTE 1.-In a republic, the sovereignty resides in the great body of the people, not as so many distinct individuals, but in their politic capacity. Penballow v. Doane, 3 Dallas 93. The sovereignty of the United States, and of the several states, are distinct and independent of each other within their respective spheres of action; though both exist within the same territorial limits. Ableman v. Booth, 21, How. 506. They retain in severalty, a distinct but qualified sovereignty. Hubbard v. N. Bailroad Co., 3 Blatch, C. C. 84.
When the people of the United States instituted civil government, they constituted it one federal nation. They declared in their preamble to the constitution, as follows: "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the common welfare, and secure the blessings of liberty to ourselves and our posterity, Do ordain and establish this Constitution of the United States of America."
The national government thus created by the voice of the people, became a national body politic and corporate, invested with supreme authority for national purposes, with power to exercise all such authority as was expressly or impliedly committed to its jurisdiction by the constitution.
It is the logical and necessary result, that the powers of a government established upon republican principles, and upon an express compact, like this, (if it may be called such,) that the extent and nature of its powers must be determined by the terms of the instrument itself. Within the conferred limits, the government must still be sovereign, and must exercise its sovereign power for national purposes, and must distribute to its various departments, their appropriate duties with power to exercise them.
'By this constitution of the United States, supreme legislative, judicial, and executive powers of the government are created, each distinct from, and independent of the other; each entrusted with a portion of the sovereign authority within the sphere of its prescribed duties and powers." a
"It must have sovereign authority, within the prescribed limits, to enact all laws necessary for the government of the society composing the nation;" and this power was therein conferred.'
By this analysis, we find this delegated authority thus conferred, distributed into three departments of power, and each independent of the other, viz: the legislative, the judiciary, and the
The first, is the power to make new laws, and to correct, repeal
a Tiffany's American Theory, 62.
NOTE 2.-"All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives." Const. U. S., Art. 1, Sec. 1.
or abrogate the old. The second, is the power to apply the law to particular facts; to judge of differences which may arise among citizens or inhabitants of the state, and to punish crimes. This power is vested in courts of justice. The third, is the power to cause the laws to be executed. This power is exercised by a single individual as President, or Governor.
So too, "a government thus composed must have supreme authority to interpret and apply those laws to the rights of every individual and subject within its jurisdiction." This was also a provision of this fundamental law.*
"To be sovereign in its judicial department, there must exist no other or higher tribunal to which appeal can be taken to review its final judgments or decrees. A sovereign judiciary must possess the right of final interpretation and decision in applying the law." a "To be sovereign in its executive department there must exist no other authority to stay the execution of its judgments and decrees." Thus it is seen, that while in its international character, the government of the United States stands equal in rank and equal in its powers of sovereignty to that of any other nation. Yet in the exercise of its powers, in behalf of and towards its own citizens, it is a limited government, deriving its existence and authority from the people, and entrusted by them with the exercise of such powers only, as are expressly granted, or given by necessary implication, in the constitution. And the people, in the constitution itself, reserve all powers not delegated to the United States by the constitution, nor prohibited by it, to the states respectively, or to the people."
These departments of the sovereign power are still knit together by one common bond; all are disposed to act in harmony for the promotion of the great ends of the government, its security, its preservation, and the public good.
a Tiffany's Govt., § 111.
NOTE 3.-"The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress may from time to time or dain and establish." Const. U. S., Art. 3, Sec. 1.
NOTE 4..-"The executive power shall be vested in a President of the United States, &c." Const. U. S., Art. 2.
NOTE 5.-Const. U. S., Art. 10.
The potential powers of a republican government which exercise their sovereignty, to wit: the legislative, the judiciary and the executive, are plainly discovered and easily distinguished, as are the division of duties conferred upon, and responsibilities assumed by each of these departments.
It is easy to discover in this organization, that it is one of the chief offices of sovereignty, to prescribe and declare to others, what they ought to perform, and what to omit; to establish general rules for the perpetual information and direction of all persons, in all points either of positive or of negative duty; to determine what each person should look to as his own, and what as another's; what is to be regarded as lawful or unlawful in the state; what is honest and what is dishonest; what degree of natural liberty each person retains, and what he has surrendered to governmental power, and after what manner each person is to exercise and regulate his own private rights, in order to secure the public good and public tranquility; this office is the legislative power.
Notwithstanding laws are thus prescribed, duties thus enjoined, and wrongs thus forbidden, as well in our own theory of government as in all others, it is still manifest that human nature is imperfect, and in many persons, greatly corrupted, so that experiment sadly informs us of the great want of reverence for prescribed laws. For which likewise, it is not enough to have a power to prescribe rules of conduct, and for the exercise of rights, and prohibition of wrongs, if it is invested with no further power. To secure therefore, the common natural rights of all men, as well as the observance of those particular laws which are enacted for the good of the whole people of a state, there must be added, not only the fear of punishment, but the power of inflicting what is feared; this is another of the objects of civil government. This power is the judiciary power, which is supposed to come to the aid of legislative. The office of this power is to hear and decide the causes of the people; to examine the conduct of the particular persons whose rights are affected by breaches of the prescribed laws; and to pronounce a proper sentence or judgment according to the prescribed rules, in case of breach or violation. Still these powers and sovereignty, of prescribing laws and pun
ishing its violations, would be inefficient for their designed objects, without another department of the same power; without officers to be appointed as co-ordinate magistrates to enquire into, pass upon, and settle all controversies and violations of law arising between the citizens and others, and between the public and the citizen; and whose duty it shall be to put the laws in execution; to compel such officers when once appointed to the performance of their duties; to call them to account on proper occasions for its non-performance; and also, in appropriate cases, to possess the powers of grace or pardon. This co-ordinate appointing and controlling power is called the executive power.
Thus distributing the powers of sovereignty into distinct councils, or bodies; it must necessarily follow, that each department exercising its appropriate functions and duties, must have conferred upon it, and must possess, all necessary power to compel the observance of those things of which it is given cognisance; for, to possess a right of declaring to others what they should do, or submit to, and yet be destitute of the power to enforce obedience to its order, would be to leave the department a helpless excrescence, and a vain pretence, destructive of the ends of its creation.
It is to be observed, in this connection, that the constitutions, national and state, having established these three separate departments, has also assigned to each, by true implication, distinct powers and duties; and from their distinct functions and the objects committed to them, there is also the necessary implication which has grown into a maxim that forbids each of them to encroach upon the powers and duties of either of the others. a Each of these departments exercises its powers and functions upon objects which arise under, or are called into existence by the constitutions, laws, or of treaties. "These departments are co-ordinate in degree, to the extent of the powers delegated to each of them. Each in the exercise of its powers, is independent of the other, but all rightfully done by either, is binding upon the other. The constitution is supreme over all of them, because the people who ratified it, have made it so; consequently, any thing which may be done, and which is unauthorized by it, is unlawful."b
a Luther v. Borden 7 How. U. S. R. 1, 39. b Dodge v. Woolsey 18 How. U. S. R. 847.