LITMIR.BIZ

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and enforcing the penalties of the laws, against all such as are guilty of crime which disturb the public peace and tranquility, constitutes the second subordinate branch of those powers which are to be exercised within the state and this power is vested, partly in persons selected for their superior knowledge of the laws of the states, whose province is to pronounce what the law is in each particular case, and who hold their office during good behavior, who are styled judges; and partly by persons indifferently chosen on the spot, to decide upon the matters of fact which are disputed in each case, who are denominated juries; being sworn well and truly to decide between the parties. And without their unanimous verdict, or consent, no person can be condemned of any crime. This is commonly called the judiciary department. And in this state no person can be at the same time a legislator, and a judge, or a member of the executive department of the government, of which it now remains to speak.

      The power of appointing inferior magistrates (that of appointing the judges of the superior courts being by the constitution of this state vested in the legislature) and ministerial officers to take care of the execution both of the ordinary laws, and of the special orders of the state, given by the proper departments, and of collecting the public revenue; paying the public creditors, defraying the public charges; and commanding, and directing the public force, pursuant to the law and constitution of the state, is ordinarily called the executive department: and in this state, this subordinate branch of internal powers, is confided to the discretion of another distinct body, composed of the governor, and the executive council, or council of state; by whose advice the governor administers the executive functions according to the laws of the commonwealth.

      The external powers, or such as are to be exercised towards foreign, or other independent states, are these two; the first that of making war for defense of the state, and for this purpose arming and training the citizens to military service; and appointing proper officers to conduct them; erecting necessary fortifications; and establishing a naval force: And the second, that of making treaties, whether such as fix the terms of peace after a war, or such as may procure aliens or confederates to assist in it, or such as without any view to war may procure, or confirm to a state and its citizens any other advantages by commerce, hospitality, or improvements in arts; and for this purpose the power and right of sending ambassadors, or deputies to concert such treaties with those of other nations. … To which we may add, thirdly, the power of deciding amicably any controversies which may possibly arise between different states, members of the same confederacy; all of which powers some authors include under one general name, viz. the federative; and all these, and some others of pretty extensive operation are vested in the federal government of the United States. The first appertain generally to the congress, composed like the state legislature, of two bodies, the one chosen by the people; the other appointed by the state legislatures. The second subordinate class belongs to the executive department, or president of the United States, assisted with the advice and consent of the senate. The third subordinate branch appertains to the federal judiciary; the judges of which, like those of the state, hold their offices during good behavior, though differently appointed, viz. by the president and senate, instead of the legislative body as in this state.

      Power thus divided, subdivided, and distributed into so many separate channels, can scarcely ever produce the same violent and destructive effects, as where it rushes down in one single torrent, overwhelming and sweeping away whatever it encounters in its passage.

      This analysis and separation is perfectly impracticable in a simple democracy, and is equally irreconcilable to the principles of monarchy; for in both these the sovereign power seems to be indivisible, and exerts itself every where, and on all occasions: In the former, the people being at once legislator, judge, and executive magistrate, and acted upon by the same impulse, they may at the same time make a law, and condemn the previous violation of it; and, as in the case of Socrates, in the same moment wreak their vengeance on the victim of their fury. But no such case can happen in an extensive confederacy, composed of states possessing respectively a representative form of government and in which the constitution is fixed, the limits of power are defined and ascertained, and uniform laws, and modes of proceeding are prescribed to be observed in every case; according to its nature before it occurs.

      Thus the sovereignty of the people, and the responsibility of their representative democracy, however, organized, or in other words, however the several powers of government may be distributed, or by whomsoever they may be exercised, the censorial power of the people, which is in effect a branch of the sovereign power itself, may be immediately exercised upon that representative or agent who forgets his responsibility. It is this powerful control, which without resumption of the sovereign power into the hands of the people, as is sometimes necessary for the reformation of the constitution, preserves the several branches of the government within their due limits; for the people where they are as vigilant, and attentive to their rights as they ought to be, will be sure to take part against those who would usurp either the rights of the people, or the proper functions of a different agent; and, thus by their weight restore the constitutional balance. On the other hand, where such vigilance and attention to their just rights is wanting on the part of the people, the progress of usurpation is often as little perceived as that of a star, rising in the east whilst the sun is in the meridian. It reaches the zenith before the departure of day discovers its ascent. But whenever there is a due vigilance on the part of the people, not only the errors or vices of the administration, but any defects in the fundamental principles of the government are more readily discovered in a representative democracy, than in any other form of government. This sometimes produces parties; but they are never violent until a general spirit of encroachment, or of corruption, is discovered to exist in the public functionaries and agents; then indeed more violent parties arise, and such as may endanger the public happiness. But they are engendered, and fostered by the government, and not as is falsely supposed, by the people. The latter are always more disposed to submission, than to encroachment, and often distrust their own judgments rather than suspect the integrity of their representative, or agent: a delusion from which they seldom recover until it’s almost too late.

      If any possible device can ensure happiness to the state, and security to the individual, it must be the establishment of this important principle of responsibility in the public agents; and its union with that other important principle, the separation and division of the powers of the government. Bold and desperate must that representative be who dares openly to violate his duty, when he knows himself amenable to the people for such a breach of trust. And wicked and corrupt must be that administration, all the parts of which unite in one conspiracy against the peace and happiness of the people collectively, and the security of every individual of the community.

      The limitation of power; the frequency of elections, by the body of the people; the capacity of every individual citizen to be elected to any public office, to which his talents and integrity may recommend him, and the responsibility of every public agent to his constituents, the people, are the distinguishing features of a representative democracy; and whilst the people preserve a proper sense of the value of such a form of government, will effectually guard it against the snares, intrigues, and encroachments of its counterfeit, and most dangerous enemy, aristocracy; of which we shall now proceed to speak.

      SECTION VIII.

      An aristocracy is that form of government in which the supreme power is vested in a small number of persons. It may be absolute, or limited; absolute, where it is not founded in the consent and compact of the society, over which the government is established; or limited, where that consent has been given, and the constitution and its powers have been fixed, and limited, at the time of such consent; but in which the other important characters of a representative democracy have not been preserved. It may likewise be temporary; as where the members of the supreme council, or senate sit there only for a certain term and then retire to their former condition; or perpetual, during their lives. It may likewise be hereditary; where the representatives of certain families (distinguished by the flattering epithet of the well-born,) are senators by birth, or elective, where either at certain periods the whole senate is chosen, and vacancies are supplied by election. And this election may be either popular as where the body of the people choose the person whom they may think proper to advance to the senatorial dignity; which is also called creation, where the person so chosen is advanced from the plebeian to the senatorial order: or it may be made by the

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