LEGISLATIVE POWER.

THE natural foundations of society are the wants and fears of individuals. The inability of the weak to protect themselves against the strong, quickened by the social qualities, and weary of a state of war, or of enjoying a liberty of little value from the uncertainty of its duration, induced them to yield up a part of their natural liberty, to enjoy the rest in the security which association promised.

The sum of these portions of the liberty of each individual, so sacrificed, constitutes the supreme power of a state.

Such part of the natural liberty of an individual as is necessary for the preservation of public liberty and order, is all that is conferred upon society.

Although no formal expression of such original contract may have been made, yet in nature and reason, it must always be understood and implied in the act of association. The whole is bound to protect the parts, and the parts must submit to the will of the whole.

This protection and submission extends only so far as the power has been yielded up. This power, thus aggregated, and no more, belongs to the society of which we are members. The due exercise of these powers prevents anarchy and confusion, and order prevails. "Laws, the rules of government, by which public order is preserved, are the conditions under which men unite themselves in society."

The rights and duties, both of governors and governed, rest in contract, express and implied. These rights and duties mutually obligate each party.

As all the members which compose society, are naturally equal, the great question has been, unto whose hands ought the reigns of government to be entrusted.

A general answer, before the adoption of our form of government, was supposed to be easy, but the application of the whip under all governments, has occasioned, and will hereafter, give

rise to all the mischiefs, which must proceed from despotism, or misguided political zeal.

Experience has proved that the deposit of this governmental power, should not only be protected from usurpation, but confined within certain limits. We have retained it where it belongs -with the people. We have said, that it should not be lodged any where else. The three appropriate divisions, of governmental power, from the very nature of the subject, have been for centuries, clearly and accurately drawn. The contention always has and always will be, where and in whose hands shall the powers of government be placed? The functions of government are essentially legislative, judicial, and executive. These alone are constitutionally recognized; neither can perform the office of the other without usurpation. They are as clearly and forever separated as Lazarus and Dives. Placed in different aad distinct hands, it was believed that each would act to preserve the proper balance. The powers of each are not specifically defined in the Constitution. Limitations are stated, and from such limitations a heresy has been sought to be adopted by some members of the judiciary, that for want of limitation, the power is omnipotent in the Legislature. If the argument is sound, the other departments are equally omnipotent. That is, each is uncontrolled in the exercise of any act that may partake of the character of the power conferred, unless the written fundamental law restrains it. If these depositaries of power act conjointly, then we cease to be a republic. Despotism and tyranny ride triumphant. To prevent such a despotism it is forbidden them to act in solid column. All the forms of government known at our advent had been tried, each in its turn had but proved the truth, "that every act of authority, of one man over another for which there was not an absolute necessity, was tyrannical." All mankind had agreed that the three grand requisites of a good government were wisdom, goodness, and power. That man separately, or in combination, did not possess, or at least did not exercise these attributes. They belonged to Deity alone. The great teacher, Experience, had shown that such depositaries had abused the trust. It was well known that society, "like all parts of the physical and moral world, naturally tends to dissolution. That, it can only be kept together by motives sufficient to counterbalance the effect of the passions."

The sublimest truths, coupled with the power of eloquence, had

been found insufficient to restrain the passions of men, excited by the lively impressions of present objects."

With this knowledge of mankind, of governments, and of society, the artisans who erected the frame-work of our government attempted the introduction of a new theory, in the hope that it would practically secure the blessings of liberty, and last for

ever.

Civil liberty, they had seen, was insecure from encroachment, under any and every form of government then known; and albeit political writers of their day admitted but of three forms, in either of whịch, what was termed the whole sovereign power should reside, yet our ancestors resorted to the then untried experiment of retaining among the people individual liberty, without the fear of, and to prevent, despotism.

To effect it, they felt the necessity of limiting and dividing the supreme power. By their Declaration of Independence, they set forth fundamental principles, which now underlay the cornerstones of the super-structures they afterwards raised. The right to life, liberty, and the pursuit of happiness, they declared inalienable.

To prevent encroachment upon these rights, by the operation of the supreme power, they declared, what indeed had always been conceded, and often declared, that what of power was not given to the government was withheld.

It was hoped that the natural tendency to tyranny in each separate part, would be resisted and controlled by the other. Hence we have what has always been viewed by other nations as an anomalous government—a representative republic. A problem not yet solved by European powers-to them a riddle-to us a blessing, if we hold it fast.

Mr. Jefferson, with a keen eye to the history of the past, and with a knowledge of the tendency of mankind to exercise power arbitrarily, said "The executive power in our government is not the only, perhaps not even the principal, object of my soli citude. The tyranny of the Legislature is really the danger most to be feared, and will continue to be so far many years to come. The tyranny of the Executive power will come in its turn, but at a more distant period." This he said in reference to the federal government, but it is equally applicable to the states.

What did he mean by the tyranny of the Legislature? An

attempt at despotism-an unbridled and unlimited exercise of power which should be wholly arbitrary.

To whom are we to look for safety and protection? To the judiciary. But the Constitution has not marked and defined the exact powers of either. To the intrinsic nature and essence of all, aided by the laws of nature and revelation, we must resort to define them. From these sources, and the essence of freedom, the judiciary may draw the clear and lucid principles to govern all.

To the Legislature is given the power to pass laws of regulation-to enforce order. Its power to prohibit and destroy is confined to causes and things in their nature, condition, and essence, vicious and dangerous to human life or the enjoyment of property. Life is sacred, and cannot arbitrarily be taken away. Liberty is secure, and cannot be stifled or destroyed. The pursuit of happiness, politically speaking, consists in the right to conduct and carry on business-exercise a trade, profession, or employment to accumulate property having the quality of transmission, with the power of disposition.

These cannot be taken away, except for cause; such cause must exist in some act of the owner, which act must in itself be essentially immoral. Legislative power is not, and cannot be arbitrary. It must submit to the judicial control whenever it attempts to invade life, liberty, or the pursuit of happiness.

Our far seeing forefathers, new builders, with almost prophetic wisdom, neither in state or federal government, made the tenure of the judicial office dependent upon popular clamor. The nomination of a judiciary did not depend upon the corrupt and corrupting influences of party hacks and polluted politicians.

Men were not taken from the inexperienced and unknown ranks of the legal profession, or from among the wholly uninitiated, and elevated to the judicial office. They were not subjected to the ordeal of the ballot-box, and therefore the rights of the minority against arbitrary legislation, were placed under the safeguard of the judicial power. Mr. Jefferson's fears were not directed to this new feature of modern invasion. The science of political ethics had not descended so low as to. suggest the Utopian notion of an independent judiciary, subjected to party strife and the ballot-box. Happily for the undying glory of a pure ancestry, they have been permitted to

wrap their mantles around them, and depart without this reproach. They have not lived to see the states degraded by an oppressive system of inquisitorial laws, the insensible and continual encroachments of which, may quickly deprive this nation of its boasted liberty. Unless we emancipate ourselves, we shall soon settle down in an abject state of slavery.

When our courts shall adopt the sound law, complete logic, and judicial eloquence of Judge Chase, of the Supreme Court of the United States, in 3 Dallas' Reports, 387, then, and not until then, will our Legislatures be restrained in the exercise of arbitrary powers.

That learned Judge, in the case referred to, says: "I cannot subscribe to the omnipotence of a state Legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the Constitution or fundamental law of the state.' "" The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society, will determine the nature and terms of the social compact; and as they are the foundations of the Legislative Power, they will decide what are the proper objects of it.

The nature and ends of Legislative Power will limit the exercise of it. There are acts which the federal or state Legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of Legislative Power-as to authorize manifest injustice by positive law, or to take away that security for personal liberty, or private property, for the protection whereof the government was established.

An act of the Legislature, (for I cannot call it a law,) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.

The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded.

J. R. WHITING.