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THE GOVERNMENT OF ENGLAND.
..Thus the colonies were considered by the mother country and themselves, and such were their respective relations by the constitution and laws of England, which were theirs. “The British government, which was then our government, and whose rights have passed to the United States,” 8 Wh. 588, as instituted and organized; must then be examined in its great outlines, as the pattern of the colonial state and federal governments, which have superseded it, but which are all founded on the same fundamental principles. All resting on the supreme power of the people of the state, as one state; but consisting of the people of three distinct estates in England; each acting separately in constituting the government of the nation, the state, empire, realm, or kingdom; and in its administration, as the power which created and continues it, is in those separate estates, as the constituent parts. The colonies were mere dependencies of the state, a part of its dominion, but not of itself; for from the preceding view taken by Mr. Justice Blackstone, it is evident that they were not states or estates of the kingdom, as they are defined in p. 50, 51. “The legislature of the kingdom is entrusted to three distinct powers, entirely independent of each other: the king, the lords spiritual and temporal, which is an aristocratical assembly of persons, selected for their piety, their birth, their wisdom, their valour, or their property;” and “the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy: this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing;” 51; as the power of making laws constitutes the supreme authority; so, wherever the supreme authority in any state resides, it is the right of that authority to make laws; 52. (Wide 12 Wh. 347.) “With us, therefore, in England, this supreme power is divided into two branches; the one legislative, to wit: the parliament, consisting of king, lords and commons; the other executive, consisting of the king alone; the British parliament in which the legislative power and, of course, the supreme and absolute authority of the state is vested by our constitution; 1 Bl. Com. 147. Parliaments are “general councils,” 149; “an assembly that met and conferred together;” “general assemblies of the states,” 147; “great council;” “the meeting of wise men;” “conventus magnatum,” &c., 148; to make new laws; novis injuriis emersis, nova constituere remedia, &c. (Congress, to “consilio,” convention, constituere.) A legislative assembly, 1 Bl. Com. 189. The constituent parts (Vide 6 Wh. 414) of a parliament are, “the king in his political capacity, and the three estates of the realm, the lords spiritual, the lords temporal, (who sit together with the king in one house,) and the commons, who sit by themselves in another.” And the king and these three estates together, form “the great corporation or body politic of the kingdom, of which the king is said to be caput principium et finis.” 1 Bl. Com. 153. These are “the constituent parts of the sovereign power,” 156. Both classes of lords, however, though in the eye of the law, the lords spiritual are a distinct estate from the lords temporal, and are so distinguished in most of our acts of parliament, yet in practice they “are usually blended together under the one name, the lords; they intermix in their votes, and the majority of such intermixture joins both estates,” 156. The lords spiritual being archbishops and bishops, and formerly abbots and priors, who hold, or are supposed to hold, ancient baronies under the king, in right whereof they were allowed their seats in the house of lords, 155. The lords temporal consist of all the peers of the realm, 156; as a body of nobles having a distinct assembly, deliberation, and powers from the commons, in order to support the rights of the crown and the people, by forming a barrier to withstand the encroachments of both, 158; representing themselves and the landed property of the kingdom, they hold or are supposed to hold. The commons consist of all such men of property in the kingdom, as have not seats in the house of lords, every one of which has a , voice in parliament, either personally, or by his representatives. In a free state, every man who is supposed a free agent, ought to be in some measure his own governor; vide 1 Journ. Cong. 59; therefore, a branch, at least, of the legislative power should reside in the whole body of the people. “And this power, when the territories of the state are small, and its citizens easily known, should be exercised by the people in their aggregate or collective capacity, as was wisely ordained in the petty republics of Greece, and the first rudiments of the Roman state,” 158; vide 2 Dall. 470. (This is the principle which is now applied to the people of an empire, extending from the Atlantic to the Pacific Ocean') “In a large state, the people should do that by their representatives, which is impracticable to perform in person; and have them chosen by a number of minute and separate districts, wherein all the voters are or may be safely distinguished.” The counties are therefore represented by knights, elected by the proprietors of land; the cities and boroughs by citizens and burgesses, chosen by the mercantile or supposed trading interest of the nation. “And every member, though chosen by one particular district, when elected and returned, serves for the whole realm. For the end of his coming thither, is not particular, but general, not barely to advantage his constituents, but the commonwealth; and therefore he is not bound, like a deputy in the United Provinces, to consult with, or take the advice of his constituents, upon any particular point; unless he himself thinks it proper or prudent to do so.” “These are the constituent parts of a parliament,” parts of which each is so necessary, that the consent of all three is required to make any new law, that shall bind the subject; “these parts are arliament, thus united together, and considered as one aggregate body;” 159, 160, 149. The king, lords and commons in parliament assembled, 196. The king is a constituent part of the supreme legislative power, 261; the eaecutive power, a branch thereof, whose “share of legislation” is “in the power of rejecting, rather than resolving,” this being sufficient to answer the end proposed, 154; the lords, in law, two estates, in practice, one, representing their own rights and landed property, or supposed so; the commons, composed of the knights of shires, as the representatives of the landholders, or landed estates of the kingdom, 172; citizens and burghers supposed to be elected by the trading interest, as the representatives of the most flourishing towns, who, as they increased in trade and population, were admitted to a share in the legislature, and yet retain it, though they had decayed; and the representatives of the two universities, to protect in the legislature the rights of the republic of letters, 174; so of the cinque ports. Herein we have the legislative power of the colonies and states, by substituting the term general assembly in their charters and constitutions, in lieu of parliament; excepting only the restrictions and qualifications by them respectively imposed. We have also the merely resolving power of “the United States of •America in Congress assembled,” before the confederation; and the power to make requisitions on the states under it, which was but a shadow of a parliament. But we have the substance of “all legislative powers herein granted, (which) shall be vested in a congress of the United States;” the American parliament, composed of the President, Senate, and House of Representatives, the caption of whose laws is, “Be it enacted by the Senate and House of Representatives, &c., in Congress assembled;” as in England, by the lords spiritual and temporal, and commons, in parliament assembled. The great difference between the two constitutions is, the one defines the “legislative power, and limits it by enumerating the subjects of its exercise;” 4 Wh. 405; 9 Wh. 188, 9, 195; the other does not; of consequence, it is supreme and absolute; but both define the executive power, when it acts otherwise than its appropriate part in legislation. In England, it is by the prerogative power, inherent in the person who fills the throne, as king or queen; here it is like legislative power, which is only what is granted by express words, or necessary implication, resulting therefrom; I Wh. 326. The president is invested with certain important political powers; 1 Cr. 166; which, if he or any officer acting by his orders, exceeds, the act is void, and the officer suable, 171; as a legislative act, repugnant to the constitution, is void, 177, so must an executive act be. But when the executive acts within the powers delegated, his acts have the power of the constitution, in the same extent as acts of congress; 1 Cr. 164, 172. The royal prerogative can no more be exercised by the eacecutive power here, than the transcendent absolute power of parliament can be by congress. Both powers are exerted by constitutionally delegated powers, and are void else. In England, the king's prerogative is limited by certain bounds; it extends to all things not injurious to his subjects; 1 Bl. Com. 239. (The exemptions need not be stated here, as they will be more appropriately referred to in one of the cases.) The executive power
is placed in the king, for the sake of unanimity, strength, and despatch; he is the chief magistrate of the nation; 250. He may reject what bills; make what treaties; may coin what money; may create what peers, and pardon what offences he pleases; unless when the constitution hath expressly, or by evident consequence, laid down some exception or boundary, declaring, that thus far the prerogative shall go, and no farther; 250. “With regard to foreign concerns, the king is the delegate or representative of his people, in whom, as in a centre, all the rays of his people are united ;” 252. “As their representative, he has the sole power of sending and receiving ambassadors;” 253. “The sole prerogative of making war and peace;” 257. “The first in military command in the kingdom;” 262. “It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the king has the prerogative of appointing ports and havens.” “The navigable rivers and havens were computed among the regalia, and were subject to the sovereign of the state; the king is their guardian, and lord of the whole shore.” “But though the king had a power of granting the franchise of havens and ports, yet he had not the power of resumption, or of narrowing, or confining their limits, when once established;” 264. “He is the fountain of justice, and general conservator of the peace:” 266; “though he has delegated his whole judicial power to his judges;” 267. “From the same original, of the kings being the fountains of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone;” 270; “ of conferring privileges;” 272. “He is, with regard to domestic concerns, the arbiter of commerce;” 273; “and, as such, has the regulation of weights and measures;” 274; “and as money is the medium of commerce, it is the king's prerogative, as the arbiter of domestic commerce, to give it authority or to make it current;” 276. “The denomination or value for which the coin is to pass current, is likewise in the breast of the king; he may legitimate foreign coin, declaring at what value it may be taken in payment;” 278. “The king may, also, at any time, decry or run down any coin of the kingdom, and make it no longer current.” 279.
THE FEATURES OF THE BRITISH AND FEDERAL GOVERNMENTS COMPARED.
In this outline of our old constitution of government, we see the pattern of our new one, though with a different distribution of powers; the most important of those which are in the king, by prerogative, in England, are granted to congress; the judicial power is vested in the courts of the United States, exclusively; and the executive power is as much defined by enumeration, as the legislative and judicial powers of the constitution are. Herein consists one great difference between the two governments; and from this there arises another, which is all important. The powers not delegated, or prohibited, being reserved to the states respectively, or the people; none can exist by prerogative, or inherent power, in any branch of the government. Hence the effect of a specification of the powers granted and prohibited, and the express reservation of all others, leaves to the states all the prerogative powers of the king over those subjects which are involved in these four cases, either directly or collaterally; on none of which are any “powers granted to the United States by this constitution.” The only questions involved are, whether the laws and acts of the states come within the prohibition; if they do not, they are valid, as the exercise of their reserved powers: to regulate their internal polity, police, and commerce; to grant charters of incorporation, for enjoying franchises over public rivers and arms of the sea, within a state; for the establishing the boundaries between states; and creating a bank corporation to deal with the funds of a state, according to the terms of the charter. There is another difference between the executive power here and in England. The king is a natural person, on whom the crown descends by hereditary right, as real estate does; and in whom the executive power vests, by birth, on the demise of the crown, so that the crown is never without an heir; 1 Bl. Com. 190. Here the executive power is vested in a president; who is an officer created by the constitution, to perform the designated functions of an office, which is filled by an election in the first place; on the demise of the incumbent, the office devolves on certain other officers, named in the constitution, and act of congress. Of consequence, whether the office is filled by the person elected thereto, by “the electors from each state,” or by “the representation from each state, in the house of representatives,” by “each state having one vote;” or by devolution on the officer designated to fill it; the executive power is equally vested in him, as the president of the United States. The office is filled, the officer filling it, whether the vice president, on whom it devolves by the constitution, the president pro tempore of the senate, or the speaker of the house of representatives, on whom the office devolves in succession by law; the character of the office, the nature and power of the office is the same. It is precisely what the constitution has declared; neither more nor less; his legislative functions are like the king’s, except that his veto is not absolute: but in his executive capacity he is, and can be no more than an officer; the chief executive magistrate, as the chief justice, is the chief judicial magistrate of the United States. The name, or style given, imports no power; before and under the confederation, congress elected a president, who was ex officio, and from the nature and character of the body over which he presided, “President of the United States of America in Congress assembled;” 1 Laws, 481. But the title was a mere name, till the constitution made it a thing—“the executive power,” on some subjects supreme; on others subordinate; according to its provisions, in designating the respective powers confided to him as an agency, as all the grants of power to the other branches of the government are declared to be by this Court. He has, therefore, no representative character; has no representative function to perform; and neither by his representa