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judiciary subservient to his will. In Europe, during the nineteenth century, the legislatures have been the invaders. Through their power to refuse supplies to carry on the government they have nearly everywhere destroyed the authority of the executive; and in those countries where they have the power to remove the judiciary, they must inevitably prevent its imposing any obstruction to the immediate accomplishment of their arbitrary will. In the United States, the three departments still remain, each in full force, as checks and balances upon each other; and equilibrium, with a few variations, seems to have been maintained.1

§ 45. Equilibrium of the Three Departments in the United States.

Of the three departments, the strongest is the legislative, and the weakest the judiciary. The legislature has the control of the purse, and can starve the other two by refusing them the supplies with which to carry on the government, or even to support themselves. The executive has the power of the sword. He can command the army to compel obedience to his will. By this means, in former centuries in Europe, and in parts of South and Central America to-day, that department has absorbed most of the functions of the other two. The judiciary has merely the power to register its decrees, with a declaration of the reasons for its action. It can only enforce them by the aid of an executive officer.1

Congress is chosen by the people at biennial elections, so that a majority of the lower house nearly always represents the people's wishes. The President is elected every four years by what is in effect a direct popular vote, and consequently nearly always represents the wishes of at least a large minority. The judges are appointed by the President and Senate, and hold office, unless impeached, for life. So they may represent the opinions of a party which has passed out of existence, and have no sympathy with the prevailing doctrines. Yet they have had many conflicts with the other departments of the government, and in all but four have triumphed. Three of these were with the executive with whom

§ 44. 1 See, however, § 45, note 11. $45. 1 The marshal, who is appointed by the President and Senate.

Judgments of the State courts are usually executed by the sheriff, who is an elective county officer.

the legislature was in sympathy: the Cherokees' cases, where the President sided with the State of Georgia, and refused to enforce the Federal process; 2 Merryman's case, where the army refused to obey the writ of habeas corpus issued by Chief-Justice Taney, in which, however, there was no expressed concurrence by his judicial brethren; and the Legal Tender cases, where, by the appointment of two new justices, he obtained the overruling of a decision that a former act was unconstitutional. The fourth was with the legislative alone, then in conflict with the President, but with a majority of the legislature so large that it had the power of impeachment; when a decision in the McCardle case against the constitutionality of the Reconstruction acts was prevented by a repeal of the statute which gave the court jurisdiction. All of these cases but the first, however, were in times of war, or immediately after the close of war, during what was practically a time of revolution. The judiciary has since regained its strength and courage, and now the jurisdiction exercised by the State as well as the Federal courts without question is greater than that previously reposed in any tribunal in the world. The last volume of the reports of the Supreme Court of the United States contains the record of their successful assertions of greater power to interfere with the civil administration of the States, and with the taxing power of Congress,8 than was ever exercised before.

So elsewhere, the executive, wherever civil liberty has prevailed, has been unable to resist the assaults of the legislature, and the threat to withhold the supplies has in the present century been efficacious to compel acquiescence in the wishes of the people's representatives. President Johnson was similarly coerced in his conflict with Congress, and compelled to assent to an appropriation bill with sections which infringed the constitutional powers of

2 Worcester v. Georgia, 6 Peters, 515. This will be explained later under the Judicial Power.

3 Ex parte Merryman, Taney, 246.
4 Legal Tender Cases, Knox v. Lee,

12 Wall., 457. See infra.

5 Ex parte McCardle, 6 Wall., 318; s. c. 7 Wall., 506; supra, § 38, over note 179.

Supra, § 38, over note 202.

7 In re Debs, 158 U. S., 564.

8 Pollock v. Farmers' Loan and Trust Co., 158 U. S., 601.

9 There are two apparent exceptions: Prussia in 1866 and Denmark at the present time; but it can hardly be said that civil liberty then existed in either.

his office, and the reserved rights of the States. 10 He, however, was never chosen by the people to be president, but was a vice-president elevated by the pistol of an assassin; and consequently had not the public confidence reposed in an officer who discharges duties which the people have elected him to perform. When a similar attempt was made to force one of his successors, Hayes, to sign appropriation bills with clauses containing legislation of which he disapproved, the President, although the previous Congress had refused to vote the needed supplies, returned bill after bill with veto messages; threatened successive extra sessions until the government received the funds necessary for its maintenance; and after a protracted struggle, public opinion compelled the legislature to yield. The President of the United States now exercises, with the approval of the people, more power than any constitutional king in the world. No President has paid less respect to the wishes of Congress than Grover Cleveland during both his administrations; and the people, when they chose him President for his second term, signified their satisfaction with such conduct. Yet at the same time, in matters which appertained to their province, he has more than once been obliged to yield his opinions to the legislative will. Thus at the end of the century we find that the three departments still retain their balance, each with its prerogatives unimpaired.11

10 14 St. at L., p. 486; supra, § 38,

over note 94.

11 Some writers maintain that Congress has encroached permanently upon the other departments. See Lodge's Webster, p. 230; Centennial Address of Mr. Justice Miller. Professor Woodrow Wilson, also, in his interesting work on Congressional Government, claims that the doctrine of the independence of the three departments is, borrowing the words of Bagehot, "the literary theory of the Constitution"; and that, in fact, Congress is supreme (pp. 10-12, 36-40 and passim). He cites, however, no proof of this, except the legal-tender cases.

He admits that the power of Congress over cabinet officers is less now than at the institution of the government (p. 257). He says, concerning its control over the administration (p. 271): "Congress stands almost helplessly outside of the departments;" and (p. 297): "There is no similar legislature in existence which is so shut up to the one business of law-making as is our Congress" (see also pp. 302 and 311). And his whole work seems to be a vigorous argument in favor of giving to Congress power to break down the executive rather than a demonstration of the position that that power has been already obtained.

CHAPTER IV.

CONGRESS IN GENERAL.

§ 46. Limited Powers of Congress.

THE legislative is the most powerful and the most important of the three departments of the government of the United States. Accordingly a description of this is contained in the first Article of the Constitution, which follows the Preamble. The first section reads:

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

The first words of the article creating Congress show that the powers therein granted are limited and not general. "The term all legislative Powers herein granted,' reminds both the Congress and the people of the existence of some limitation. The introduction displays the general objects. The Constitution itself enumerates some of the powers of Congress, and excludes others which might perhaps fall within the general expressions of the introductory part. These prohibitions are in some degree auxiliary to a due construction of the Constitution. When a general power over certain objects is granted, accompanied with certain exceptions, it may be considered as leaving that general power undiminished in all those respects which are not thus excepted."1

It is well settled that the Constitution of the United States is a grant of powers; 2 whereas the State constitutions are, so far as the State legislatures are concerned, limitations of powers previously existing.3

§ 46. 1 Rawle on the Constitution, p. 29. For the discussion of a similar question under the Federal Constitution of 1795, see Mémoires de Barras, vol. ii, pp. 20-23. In the Confederate Constitution, the powers of Congress

were "delegated" instead of "granted" (supra, § 37).

2 U. S. v. Cruikshank, 92 U. S., 542, 551; Trade-mark Cases, 100 U. S., 82, 93.

3 Ohio Life Insurance and Trust

§ 47. Origin of Congress.

The name of Congress was taken from that of the body which preceded and continued under the Articles of Confederation; but there is no analogy between their functions, and the source of the present institution is far different as well as distinct from that of its predecessor. The Continental Congress and that which sat under the Articles of Confederation were, in theory at least, what their name denotes, gatherings of ambassadors,1 although in fact they exercised considerable legislative power, which they usually disguised by the terms, recommendations and ordinances.2 The present Congress of the United States is a national legislature, and its source may be traced through the British Parliament to the meetings in the woods of Germany described by Tacitus.3

The form of government which prevails usually in primitive communities comprises a king or chief, a senate or gathering of elders or selectmen with whom he consults, and a public assembly of all freemen with the right of suffrage, who decide questions of importance, whether legislative, executive or judicial, which are submitted to them. This naturally arose from the councils of war, where the general, after consulting the more experienced, took the sense of the whole body of warriors before an important enterprise. Such a legislative assemblage of the whole people may still be seen once a year on the Tynwald in the Isle of Man, in the Swiss cantons of Uri, Unterwalden, Glarus and Appenzell; and more frequently in the town-meetings in New England and the Western States. In Switzerland the voters still follow the early custom of attending armed. Of such a character were the federal assemblies of the Achaian, Aetolian and Lycian Leagues, which

Co. v. Debolt, 16 How., 416, 438; Pratt v.
Allen, 13 Conn., 119, 125; People ex rel.
McDonald v. Keeler, 99 N. Y., 463, 479.

§ 47. 1 Chief Justice Marshall in Gibbons v. Ogden, 9 Wheaton, 1, 187, quoted supra, § 12, over note 22; John Adams also expressed this opinion, but Jefferson disagreed to it. (See Works of John Adams, vol. viii, p. 433; Jefferson's letter to John Adams, Feb. 23, 1787, Jefferson's Works, vol.

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