1. Journals of Convent, 82, 83, 129, 207, 215.
2. Bill of Rights, article 30.
3. The Federalist. No. 47. -- It has been remarked by Mr. J. Adams, that the practicability of the duration of a republic, in which there is a governor, a senate, and a house of representatives doubted by Tacitus, though he admits the theory to be laudable. Cunotas nationes et urbes populus, aut priores, aut singuli regunt. Delecta ex his et constituta reipublicrae forma laudari facilius quam inveniri, vel si evenit, haud diuturna esse potest. Tacit. Ann. Iib. 14. Cicero asserts, "Statuo esse optime constitutam rempubicam, quae ex tribus generibus illis, regali, optimo, et populari, modice confusa" Cic. Frag. de Repub.a The British government perhaps answers more nearly to the form of government proposed by these writers, than what we in modern times should esteem strictly a republic.
a. 1 Adams's Amer. Constitutions, Preface, 19.
4. Montesquieu, B. 11, ch. 6.
5. Mr. Turgot uses the following strong language: "The tyranny of the people is the most cruel and intolerable, because it leaves the fewest resources to the oppressed. A despot is restrained by a sense of his own interest. He is checked by remorse or public opinion. But the multitude never calculate; the multitude are never checked by remorse, and will even ascribe to themselves the highest honour, when they deserve only disgrace." Letter to Dr. Price.
6. 1 Black. Comm. 146.
7. 1 Black. Comm. 269. See l Wilson's Law Lectures, 394, 399, 400, 407, 408, 409; Woodeson's Elem. of Jurisp. 53, 56. -- The remarks of Dr. Paley, on the same subject, are full of his usual practical sense. "The first maxim," says he, "of a free state is, that the laws be made by one set of men, and administered by another; in other words, that the legislative and judicial characters be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends. Whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect; and, when made, they must be applied by the other, let them affect whom they will. "For the sake of illustration let it be supposed, in this country, either that, parliaments being laid aside, the courts of Westminster Hall made their own laws; or, that the two hoses of parliament, with the king at their head, tried and decided causes at their bar. It is evident, in the first place, that the decisions of such a judicature would be so many laws; and, in the second place, that, when the parties and the interests to be affected by the laws were known, the inclinations of the law-makers would inevitably attach on one side or the other; and that where there were neither any fixed rules to regulate their determinations, nor any superior power to control their
proceedings, these inclinations would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would live either without any constant laws, that is, without any known pre- established rules of adjudication whatever; or under laws made for particular persons, and partaking of the contradictions and iniquity of the motives, to which they owed their origin. These dangers, by the division of the legislative and judicial functions, are in this country effectually provided against. Parliament knows not the individuals, upon whom its acts will operate; it has no cases or parties before it; no private designs to serve: consequently, its resolutions will be suggested by the consideration of universal effects and tendencies, which always produce impartial, and commonly
advantageous regulations. When laws are made, courts or justice, whatever be the dispo-sition of the judges, must abide by them; for the legislative being necessarily the supreme power of the state, the judicial and every other power is accountable to that: and it cannot be doubted, that the persons, who possess the sovereign authority of government, will be tenacious of the laws, which they themselves prescribe, and sufficiently jealous of the assumption of dispensing and legislative power by any others." Paley's Moral Philosophy, B. 6, ch. 8.
8. The Federalist, No. 47; Id. No. 22. See also Gov. Randolph's Letter, 4 Elliot's Deb. 133; Woodeson's Elem. of Jurisp. 53, 56. -- Mr. Jefferson, in his Notes on Virginia,b has expressed the same truth with peculiar fervour and force. Speaking of the constitution of government of his own state, he Says, " all the powers of government, legislative executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of a despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those, who doubt it, turn their eyes on the republic of Venice. An elective despotism is not the government we fought for; but one, which should not only be founded on free principles, but in which the powers of, government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others " Yet Virginia lived voluntarily under this constitution more than fifty years;c and, not withstanding this solemn warning, by her own favourite statesman, in the recent revision of her old constitution and the formation of a new one, she has not in this respect changed the
powers of the government. The legislature still remains with all its great powers. No person, however, has examined this whole subject more profoundly, and with more illustrations from history and political philosophy, than Mr. John Adams, in his celebrated Defence of the American Constitutions. It deserves a thorough perusal by every statesman. Milton was an open advocate for concentrating all powers, legislative and executive, in one body; and his opinions, as well as those of some other men of a philosophical cast, are sufficiently wild and extravagant to put us upon our guard against too much reliance on mere authority.d b. Jefferson's Notes, p. 195.
c. See 2 Pitkin's Hist. 293, 299, 300.
d. See 1 Adams's Def. of Amer. Const. 365 to 371.
9. The Federalist, No. 42.
10. The Federalist, No. 47; De Lolme on the English Constitution, B. 2, ch. 3.
11. 1 Black. Comm. 154.
12. The Federalist. No. 47, 48.
13. 1 Amer. Museum, 536, 549, 550; Id. 553; 3 Amer. Museum, 78, 79.
14. The Federalist, No. 48.
15. The Federalist, No. 48.
16. The Federalist, No. 48. See also The Federalist, No. 38, 42.
17. De Lolme, B. 2, ch. 3.
18. The Federalist, No. 48, 49.
19. "Numerous assemblies," says Mr. Turgot, "are swayed in their debates by the smallest motives."
20. See Mr. Jefferson's very striking remarks in his Notes on Virginia, p. 195, 196, 197, 248. In December, 1776, and again, June, 1781, the legislature of Virginia, under a great pressure, were near passing an act appointing a dictator. Ib. p. 207.
21. The Federalist, No. 48, 49.
22. See Jefferson's Notes on Virginia, 195, 196, 197.
23. The Federalist, No. 48.
24. The Federalist, No. 48, 50.
25. 1 Adams's American Constitutions, 105, 106.
26. The history of the former constitution of Pennsylvania, and the report of its council of censors, shows the little value of provisions of this sort in a strong light. The Federalist, No. 48, 50.
27. The Federalist, No. 50.
28. The Federalist, No. 48. -- The truth of this reasoning, as well as the utter inefficacy of any such periodical conventions, is abundantly established by the history of Pennsylvania under her former constitution.e e. The Federalist, No. 50. See 2 Pitkin;s Hist. 305, 306.
29. The Federalist, No. 48, 50, 51.
30. Montesq. Spirit of Laws, B. 11, Ch. 6.
31. The Federalist, No. 47; Id. 38.
