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1. A Constitution, in its legal and political sense, signifies the fundamental principles on which a Government is formed.
2. Constitutional Law, is that branch of jurisprudence which treats of those principles—of the practical exercise of the powers of Government in conformity with them; and of the construction to be given to them—in such their application.
3. The origin of political Constitutions is as various as their different forms; and Governments in their form are either simple or mixed.
4. The simple forms of Government are
1. Monarchy, where all power is vested in a sin
2. An Aristocracy, where the powers of Govern
ment are exercised by a select number, or a single body of men. And,
3. A Democracy, in which all power is retained
in the hands of the People, or of the society at large.
5. A mixed Government, is where all three, or any two of the simple forms are united.
6. A Constitution may exist under any of these forms, if the Government be administered according to established rules and principles, and be the result of general consent, either actually expressed or fairly to be implied.
7. Hence a Constitution may be derived from traditionary information, or from the acts and proceedings of the Government itself, as well as from a written compact.
8. The formation of a Constitution, on a single principle, whether of Monarchy, Aristocracy, or Democracy, is the most practicable and easy mode; but the union of the three simple forms in due proportions, so that each shall be sufficient to support itself in the exercise of its appropriate functions, and all be made to harmonize and co-operate, is the most perfect system, and the only true basis for a Democratical Republic.
9. This is effected by the proper relative distribution of the powers of Government amongst the several branches, according to the principle of representation; whereby each is constituted, in its respective department, the immediate and co-equal representative of the People, as the direct source of its authority, and the sole ultimate depositary of the sovereign power.
10. The powers of Government, are distinguished from each other, as appertaining to the Legislative, Executive, and Judicial departments. In the first of which is vested the power of making Laws, or prescribing rules for the Government of the community; in the second, that of executing or carrying into effect those Laws; and in the third, the power of expounding and applying them, in their operation upon individuals.
11. In the proper organization of these departments, and the just distribution of authority amongst them, with the application of proper aids and checks to secure the necessary independence and efficiency of each, " The Best Constituted Repurlic" is alone to be attained.
12. These three powers of Government cannot be wholly united, or injudiciously blended in the same department, consistently with the liberties and security of the People; and the danger to public freedom would be equal, whether the same powers were delegated to a single magistrate, or to a numerous body,
13. If the principle of representation be extended only to a part of the Government, and other parts exist in it independent of that principle, the security afforded by the one is partial and uncertain; whilst the danger to be apprehended from the other, will be in proportion to its predominance in the system.
14. As representation may be partial in regard to the powers of Government, so it may be confined to a portion of the community; and in this respect the system would be objectionable in proportion to the numbers unnecessarily excluded from representation, or from the exercise of a free and intelligent voice in the appointment of their representatives.
15. According to the theory of a Republican Constitution, the right of representation is universal in reference both to the powers of the Government, and the delegation of their exercise; but in practice there are exceptions in the application of the rule, which do not, however, impair it as a general principle.
16. The great advantage of a written Constitution consists in its accurately defining the limits of the three great departments of Government, and by proper checks and securities preserving unimpaired the principle of representation in regard to the exercise both of the powers of Government, and the right of delegating them to the representative.
17. Where the Constitution depends on tradition, or is to be collected from the proceedings of the Government itself, there can be no stability in the system, and of course no certainty of security under it; as every new act of the Government may introduce a new principle, and the Legislative power may, from its omnipotence, alter the Constitution at its pleasure.
18. A written Constitution, therefore, is most conducive to the freedom, security, and happiness of individuals, as it may be appealed to by the People and enforced by the Judicial power as a fundamental and paramount law, binding en the Legislature itself.
19. The foundations of a Government formed on the principle of popular representation, were laid in the United States by the institutions which, as Colonies, they received from England.
20. Two sorts of provincial Governments were established by Great Britain in her American Colonies; first, Royal Governments, in which limited territorial grants were made to settlers, reserving the general domain to the Crown, and providing for the exercise of the whole political and civil jurisdiction under its authority; and secondly, Proprietary Governments, in which the whole territory and jurisdiction were granted by the king to one or more individuals.