$223. But in performing these offices in the practical administration of the general government, the states act in virtue of the authority intrusted to their exercise by the national constitution, and not in virtue of any authority inherent in the states themselves. In these respects, the states have been constituted national agencies, to exercise administrative authority in the selection of representatives and senators in congress; and also in selecting electors for president and vice-president of the United States. But all must agree that in these respects they act in virtue of delegated, and not of original, authority. All must agree that it was competent for the people to have vested the exercise of such authority in the general government had they thought proper to have done so.

$224. The idea of separate original sovereignties in the national and state governments, or in the nation and states, is an erroneous and dangerous one. The anticipated conflict between the two authorities, has ever created visions of state and national ruin. The only dangers which have seriously threatened the destruction of the nation, and the consequent loss of security and liberty to its people, have arisen from this erroneous idea of original sovereignty in the states, and, consequently, of a natural antagonism of rights, interests and authority between two separate original sovereignties, occupying the same territory, and embracing the same people.

$225. These anticipated conflicts of authority between the general and state governments, which have created in many minds, serious apprehensions as to the stability of these American institutions, are the natural and instinctive recognitions of the incompatibility of absolute sovereignty in two distinct governments, each occupying the same territory, and embracing the same subjects. It is the judgment of common sense that the bypothesis is in itself an absurdity.

CHAPTER VII.

LEGISLATIVE DEPARTMENT.

S226. AT its commencement, the convention, which drafted the constitution, while it was in committee of the whole on the state of the American union, resolved that, in the opinion of the committee, a national government ought to be established, consisting of a supreme legislative, judiciary and executive. The convention acted upon this suggestion, and divided the internal administration of the government into three departments; committing to one the authority to legislate, to another the authority to adjudicate, and to a third the authority to execute the laws.2

$227. These several departments, in the exercise of the special powers committed to them respectively, are independent of each other, and collectively constitute the government; that is, they exercise all the authority of the government for purposes of internal administration through their several departments. The government can exercise legislative authority only through congress, to which the legislative authority of the government is committed. It can ascertain and apply the laws only through the judiciary, to which the judicial powers of the government are committed. It can execute its orders, judgments and decrees, or enforce the observance of the laws generally, only through the executive, to which department the executive powers of the gov ernment are committed. It is not to be supposed, because each department is intrusted with the exercise of supreme authority in its appropriate sphere of duty, that, therefore, there are three sovereignties, or that sovereignty is divided between these three departments. The government is intrusted with the exercise of the sovereign authority of the people to legislate through congress to adjudicate through the supreme court, and such inferior courts as congress shall establish; and to execute the laws through the president of the United States.

11 Lipp. Ell. Deb., 151.

"All legislative powers herein granted shall vest in a congress of the United States, which shall consist of a senate and a house of representatives." (Art. 1, 1, Const. U.S.)

"The executive power shall be vested in a president of the United States of America." (Art. 2, 21, Const. U. S.)

"The judicial power of the United States shall be vested in one supreme court, and such inferior courts as the congress may from time to time ordain and establish." (Art. 3, 1.)

$228. It is essential to the perfection of administration, that the legislative, judicial and executive departments should be independent of each other. The proper administration of governmental authority requires the exercise of the highest wisdom, the greatest prudence, the strictest virtue, and the loftiest pariotism, to make it what it ought to be, as the educating, developing, protecting, sustaining and governing power of the nation. When it legislates, its laws should be calculated to benefit as many as possible, without injuring any; therefore, it should have the wisdom and the prudence to ascertain what laws are needed, and what will be the probable effect of those laws in their application to the people they are to govern. The judges who interpret and apply the laws to individuals and subjects, should have the wisdom to comprehend them in their true meaning and application; to ascertain with judicial certainty the occasions of their application; and should be possessed of that integrity which would make them blind to every other consideration than the doing of equal and exact justice to individuals and society. And he, who executes these laws as ascertained and applied by judicial determination, or in any other manner required by law, should be possessed of firmness of mind, integrity of heart, and kindness and humanity of spirit, so that he become the fit representative of the dignity, the power, and the good will of the people, who, in their utmost severity, seek the highest good of all.

$229. There are many and weighty reasons for separating the authority to be exercised by the government into these independent departments. First, the several departments are each distinct in their nature, and require a distinct class of minds having different qualifications, to administer them. The office of legislation will necessarily be performed by a changing body of men, taken from the various classes of society, to administer for a limited time as members of the legislature. In democratic governments, this is one of the essential features of the system. They must come from the body of the people, that they may know their wants, and be identified with their interests. They must return at short intervals to the people, that they may be responsible to them. They must be taken from the various arts, occupations, trades and professions, that all interests may be represented and cared for, to

the end that laws promotive and protective of each, may be enacted. Such, necessarily, must be the general constitution and character of the legislative assembly in all democratic governments. Farmers understand best the interests of agriculture; mechanics understand best what belongs to their particular trade; merchants know best what provisions are required to facilitate exchange of commodities. Each of the learned professions best comprehend their respective professional interests. But neither farmers, mechanics, tradesmen or artists, know best how to frame a law, promotive or protective of their interests, without interfering or injuriously affecting others. There will be, in the legislative assembly, legal minds accustomed to the forms of legal definition and expression; there will be statesmen who can comprehend the general scope and effect of any particular law proposed, and they will aid in embodying the ideas of the various members representing the various interests, in legal form, with suitable restrictions and limitations, so that the laws enacted. may do much good and no harm.

$230. But these legislative assemblies are composed of men often influenced by particular interests; subject to be controlled by combinations which unite many separate measures for the purpose of securing a majority for each; and in many ways they are influenced to act hastily, from impulse, interest, popular excitement and the like, which tend to defeat the exercise of that wisdom, prudent foresight and calm judgment, so essential to correct legislation for the welfare of individuals and society. For these and similar causes, laws enacted by legislative assemblies are not always wise and just; do not always tend to the well-being of society. Sometimes they are in violation of the fundamental principles of justice. If laws thus enacted were to be adjudicated and applied by the same body, subject to the same influences and impulses; controlled by the same interests, the well-being of individuals and society would be in great danger; and the government, instituted to foster and protect the best interests of society, would become its most dangerous oppressor.

$231. The constitution of the judicial office, and the requisite character and condition of the judges are very different. The judges are selected from a class of men familiar with the principles by which rights are to be determined, and justice to be ascertained and applied.

By a long course of studying the constitution and laws, they acquire a knowledge and discipline suited to accurate determination. In practice, the judge is not allowed to sit in cases where he has even the remotest interest; or is within the ninth degree of consanguinity, or in any manner akin to either party. By his position as a judge, he is removed from all excitement or popular influence, and in the discharge of his duty he has only to ascertain the facts and apply the law thereto; but in all other respects, as the symbol of justice, he is required to be blind.

$232. Such being the constitution of the legislative and the judicial departments respectively, and such the characters and qualifications of their respective members, it cannot be doubted. that the interest of all requires them to be thus separated and made independent each of the other. Then should the legislature enact a law obnoxious to the principles of justice as secured by the constitution, it would be powerless for mischief. Before such law could be enforced, it would necessarily be subject to the strictest scrutiny of learned and impartial judges, authorized to examine into its validity and pronounce upon its constitutionality; required to ascertain judicially the existence of facts demanding its application; and the deliberate and impartial judgment of the court in respect thereto.

$233. The same considerations calling for the separation and independence of the legislative, judicial and executive departments, also require that the legislature itself should be separated into two distinct branches.1 One branch comes directly from the people, and represents them in all their various rights and interests. It is emphatically the popular branch of the legislature, in which the people speak from every trade, occupation, profession and interest. It is the most numerous branch, coming from and returning to the people every two years, that it may ever be fresh from their presence. This branch is democratic in an eminent degree; and is characterized by the universality of the interests of society represented by it, rather than by its wisdom and discretion in such representation. It is better fitted for

"The house of representatives shall be composed of members every second year by the people of the several states; and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." (Art. 1, 2, Const. U. S.)

"The senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote." (Art. 1, 23, Const. U. S.)