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The truth is, says Judge Story, "that the legislative power is the great and overruling power in every free government. It has been remarked with equal power and sagacity, that the legislative power is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex."a And he adds, the opinion, that the founders of our government, were so impressed with dread of the royal prerogative, that they seemed not to have remembered the danger from legislative usurpations. The representatives of the people, will watch with jealousy every encroachment of the executive magistrate, for it entrenches upon their own authority. But who shall watch the encroachments of the representatives? Will they be as jealous of the exercise of power by themselves, as by others?" b In a representative republic, when the executive magistrate is carefully limited, both in the extent and duration of its power; and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; and which is sufficiently numerous to feel all the passions which actuate the multitude; yet so numerous, as to be incapable of pursuing the objects of its passions by means which reason prescribes; it is easy to see, that the tendency to the usurpation of power, is, if not constant, at least probable; and that it is against the enterprising ambition of this department, that the people may well indulge all their jealousy and exhaust all their precautions.c
There are many reasons which may be assigned for the engrossing influence 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 out, and defined. It reaches few objects, and those are known. It cannot transcend them, without being brought into contact with the other department. Laws may check, and bound, and restrain its exercise.
The same remarks apply with still greater force to the judiciary. Its jurisdiction is, or may be, bounded to a few objects or
a Story on Const. § 532.
e See Federalist, Nos. 48 and 49.
persons; or however general and unlimited, its operations are necessarily confined to the mere administration of private and public justice. It cannot punish without law. It cannot creute controversies to act upon. It can decide only the rights and cases as they are brought by others before it. It can do nothing of itself. It must do everything for others. It must obey the laws; and if it corruptly administer them, it is subjected to the power of impeachment.
On the other hand, the legislative power, except in a few cases of constitutional prohibition, is unlimited. It is forever varying its means and its ends. It governs the institutions, and laws, and public policy of the country. It regulates all its vast interests. It disposes of all of its property. Look but at the exercise but of two or three of its ordinary powers. It levies all taxes; it directs and appropriates all supplies; it gives the rules for the descent, distribution, and devises of all property held by individuals. It controls the sources and resources of wealth. It changes at its will the whole fabric of the laws. It moulds at its pleasure almost all the institutions, which give strength, and comfort, and dignity to society.a It is the direct visible representative of the people in all the changes of times and circumstances. It has the pride as well as the power of numbers. It is easily moved, and steadily moved by the strong impulses of popular feeling, and popular odium. It obeys, without reluctance, the wishes and the will of the majority of the body for the time being. The path to public favor lies open by such obedience; and it finds not only support, but impunity, in whatever measure the majority advises, even though they transcend the constitutional limits. It has no motive, therefore, to be jealous, or scrupulous, in its own use of power; and it finds its ambition stimulated, and its arm strengthened by the countenance and courage of numbers.
It has been supposed, that the right of appeal to the people to change the fundamental law, is an adequate protection to all the evils that such body may inflict. Judge Story doubts this, in the following language: "Whoever has been present in any assembly, convened for such a purpose, must have perceived the great diversities of opinion upon the most vital questions; and the extreme
a Story. § 534.
difficulty in bringing a majority to concur in the long-sighted wisdom of the soundest provisions. Temporary feelings and excitements, popular prejudices, an ardent love of theory, an enthusiastic temperament, inexperience, and ignorance, as well as preconceived opinions, operate wonderfully to blind the judgment, seduce the understanding.a
But, if the other two departments, the executive and judiciary, could make this appeal to the people, even then, in the opinion of Mr. Madison, they would not enjoy equal advantages on a trial. He says:b "the members of the executive and judiciary departments, are few in number, and can be personally known to a small part only, of the people. The judiciary, are removed too far from the people to share much in their prepossessions. The executive is generally the object of jealousy, and their administrations always liable to be discolored, and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance, embrace a great proportion of the most influential part of society. The nature of their public trust implies a personal influence among the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue. But the legislative party would not only be able to plead their cause most successfully with the people; they would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would give them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters on whom everything depends, in such bodies. The convention, in short, would be composed chiefly of men, who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them."
Not so, in any degree, is the case of the judiciary department. "It is never brought into contact with the people, by constant appeals and solicitations, and private intercourse which belongs b Federalist, No. 48.
a Id. § 537.
to the other departments of government. It is seen only in controversies, or in trials and punishments. Its rigid justice and impartialities give it no claims to favor, however they may to respect. It stands solitary and unsupported, except by that portion of public opinion which is interested only in the strict administration of justice. It can rarely secure the sympathy or zealous support either of the executive or the legislature. If they are not, (as is not unfrequently the case) jealous of its prerogatives, the constant necessity of scrutinizing the acts of each, upon the application of any private person, and the painful duty of pronouncing judgment that these are a departure from the law or constitution; can have no tendency to conciliate kindness, or nourish influence."
It may here be allowable, (and not without its use and practical advantage), to state shortly the division of statutes, according to the foreign jurists; with a brief sketch of their general nature and distinctive qualities.
But it is necessary to premise, in order to guard against a misconception lying in the path of the English lawyer, that by statutes the civilians mean, not the positive legislation, which in England and America is known by the same name, viz.; the acts of Parliament and of other legislative bodies as contradistinguished from the common law; but the whole municipal law of the particular state, from whatever source arising a. Sometimes, the word is used by civilians, in contradistinction to the Roman Imperial Law, which they are accustomed to style, by way of eminence, "The Common Law;" since it constitutes the general basis of the jurisprudence of all continental Europe, modified and restrained by local customs and usages, and positive legislation.
Statutes are divided by civilians into personal, real and mixed. Personal statutes are those which act upon the person directly as their subject or object; by fixing and determining its state either universally or particularly; without mentioning things, except with reference to the state with which the person is affected. Of universal qualities, some take effect from birth, as nobility b legitimacy, bastardy; and these can only be affixed by the law of the domicil of origin. Some take effect at a stated time after birth; as the period of majority, and the time when the civil capacity to contract commences. These are governed by the laws of the domicil of origin; each state being the most capable of judging from the physical circumstances of climate and otherwise, at what time the faculties of its subjects are to be considered morally and civilly perfect for the purposes of society. Other qualities are universal, so far as
a Story on the Conflict of Laws, p. 10.
b Not in America.
the comity of nations extend, but take effect at an indeleminate time after birth, as letters of nobility, judgments or decrees of competent tribunals declaring any person an idiot, lunatic or bankrupt. The relation of marriage also seems of this nature as to its personal qualities, (the marital power,) however it may differ as to its consequences with respect to real property situate out of the territory where the act of marriage is celebrated. a
Thus an act done by a minor in regard to his property situate in the place of his domicil, without the consent of his guardian, is invalid there, and will be held invalid in every other place. So, if a married woman, who is disabled by the law of the place of her domicil from entering into any contract, or from transferring any property therein, without the consent of her husband, should make a contract or transfer property situate therein, the transaction will be held invalid, and a nullity in every other country. b Quando lex in personam dirigitur respicienda est ad leges illius civitatis, quæ personam habat subjectam.c "Qualitas personam, sicut umbra, sequitur."
But, as to acts done, rights acquired, and contracts made, by persons not declared incapable, in other countries, the lex loci contractus ought to prevail, and not the lex loci domicilii. And as the validity of the contract may depend upon the capacity of the contracting party, in regard to questions of minority and majority; competency or incomptency to marry; incapacities incident to coverture; guardianship, &c.; as a rule in other countries, the law of the domicil of birth or habitation is not generally to prevail, but the lex loci contractus aut actus. Such qualities as are last spoken of, can only be affixed by the sovereign or judge of the actual or real domicil. Great confusion and mischief, it is apparent, would arise, if the effects of judgments and decrees of idiocy, lunacy, &c., were not to be general and universal, and if the same person could be considered as capable to contract in one place, and incapable in another. Here, d therefore, one independent state will, by the comity of nations, and for the general convenience of mankind, give effect to the laws and judicial acts of another, so far as it can be done without prejudice to the fundamental principles of its own internal policy.e
Personal particular qualities, are those whereby a person generally incapable by his civil state, is rendered capable for some particular act; or a person generally capable by his civil state, is
a Modern statutes, in several of the states of this government, have changed this marital power. It is not proposed to review in this work, the variations from the common law which have been effected by such statutes in different states. b Henry on Foreign Law, p. 4; Bullenois Pri. Genl. 6.
c 1 Hertii Op. De Collis. Leg. § 4, art. 8, p. 123.
d Huber de jure civitatis, 1, 3, c. 10; Voet ad Pandectas, lib. 1, tit. 4, par. 2, n. 11 e Henry on Foreign Law, p. 2.