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than required for the necessary expenses of government, unless by a concurrence of two-thirds of both houses of the general assembly. No poll tax shall be assessed for other than county purposes. No other or greater tax shall be levied on the productions or labor of the country than may be required for expenses of inspection.
OF LEGISLATIVE POWER IRRESPECTIVE OF CONSTITUTIONAL RESTRICTIONS.
§ 119. IN the preceding chapter we have stated generally the provisions contained in the respective state constitutions, relating to the power of the respective state legislatures. In subsequent chapters we shall take occasion to consider the restrictive clauses, and the construction which such restrictive clauses have received. In the present chapter we shall proceed to a consideration of the extent of legislative authority, irrespective of any constitutional restrictions upon legislative power.
The law making power in almost all modern civilized governments, is vested in the representatives of the people, selected in the manner prescribed by the fundamental law or municipal regulations of each particular government; whose powers are regulated either by an express written compact, or limited only by what is tacitly reserved to the people, on whose consent their right of government is founded. In the legislative department of government in this respect is usually vested the sovereign power of the state. By sovereignty is commonly understood supremacy, supreme power, unlimited and uncontrolled. The word sovereignty, however, is used in different senses, and is susceptible of various applications. When applied to states and nations in relation to each other, it means nothing more than independence. A sovereign state in a political sense, is a state or nation in the free and uncontrolled possession of self-government. In this application of the term there is no idea of supremacy but simply that of national independence. But when applied to the internal government of a state, it is made to signify a power somewhere vested, competent to regulate, control, and direct the will of the whole and of every subordinate member of the community. To this end it is by some supposed to be absolute, unlimited, and incapable of being controlled. As to the extent of sovereign power, in whatever department of the government it may be lodged, and whether it is to be considered as absolute and beyond control, where there is no written fundamental law setting limits to such power, there is great diversity of opinion among ethical and judicial writers. Among the former, Paley considers it a well settled principle, that the sovereign power is necessarily lodged in some department where it is absolute and uncontrolled. His reasonings on this point are, “as a series of appeals must be finite, there necessarily exists in every government, a power from which the constitution has provided no appeal, and which power for that reason may be termed absolute, uncontrollable, arbitrary, despotic, and is alike in all countries. The person in whom this power resides is called the sovereign, or supreme power of the state, and since to the same power, universally pertains the office of establishing public laws; it is called also the legislative power of the state.”(a) § 120. Burlamaqui contends, “That the first characteristic of this sovereign power, and that from which all the others flow, is its being a supreme and independent power; that is, a power that judges in the last resort of whatever is susceptible of human direction, which relates to the welfare and advantage of society, insomuch that this power acknowledges no other superior on earth.” When he says the civil power is, of its own nature, supreme and independent, he does not thereby mean
that it does not depend for its origin on the human will; all that he contends for is, when once this power is established, it acknowledges no other upon earth superior or equal to it; and consequently, whatever it ordains, in the plenitude of its power, cannot be reversed by any other human will as superior to it. That in every government there should be a supreme power, is a point absolutely necessary, the very nature of the thing requiring it, otherwise it would be impossible for it to subsist. For, since power cannot be multiplied to infinity, we must of necessity stop at some degree of authority superior to all. Let the form of government be what it may, there must always be a submission to a supreme decision, and it would be a contradiction to say, that there is any power above him who holds the highest rank in the same order of beings.(a) § 121. Wooddesson, speaking of the extent of legislative power, regards it as certain, that no human authority can rightfully infringe, or abrogate the smallest particle of natural or divine law. Yet he adds, a British judge of highly deserved estimation, seems in some measure unguarded, in asserting from the bench, that an act of parliament, made against natural equity, as to make a man judge in his own case, is void of itself; for jura natura sunt immutabilia, and they are leges legum. Wooddesson admits that this principle is infallibly true, but the application of it, and the conclusions dangerous; that we should distinguish between right and power; between moral fitness and political authority. We cannot expect that all acts of legislators will be, or can be entirely good, ethically perfect, but if their proceedings are to be decided upon by their subjects, government and
(a) Prin. Pol. Law, tit. 2, ch. 7.
subordination ceases. He thinks with Paley, if the magistrate should enjoin any thing by his authority, that appears unlawful to the conscience of a private person, that such private person is to abstain from the action, that he judges unlawful, and to undergo the punishment which it is not unlawful for him to bear. In like manner, when the supreme power decrees any thing injurious to one, or a few only of its subjects, it is their duty according to the principles inculcated in the decalogue of Plato, entitled Crito, to acquiesce, and not to disturb the peace of society, nor attempt to subvert the constitution of their country, or diminish the veneration for its laws, which would be bringing a greater evil upon the whole community.(a) § 122. The judicious Hooker insists, with that quaintness of thought which characterizes all his writings, that law politic, ordained for external order and regimen among men, unless they provide so to frame their outward actions that they be no hindrance to the common good for which societies are instituted, they are not perfect. That human laws are measures in respect of men; whose actions they must direct; howbeit, such measures they are, as have also their higher rules to be measured by; which rules are two: the law of God, and the law of nature. So that human laws must be made according to the general laws of nature, and without contradiction to any positive law of scripture, otherwise they are illy made.(b) § 123. The opinions of almost all the ancient writers on political sovereignty, based the doctrine of the absolute and sacred character of sovereignty upon the false assumption that princes bear rule by divine right, and not by virtue of the tacit or expressed consent of the
(a) 1 Wodd. L. 3, p. 41.