The multitude were on all occasions agitated by the breath of their orators as the waves of the sea by the wind. The Roman metropolis, on the other hand, was a military city in which every citizen was a soldier, and a sovereign, for Rome was not the head of the republic, but the mistress of the empire, and of the globe. Her citizens may be regarded as the lords of the human race, in the forum they tyrannized over the rest of the world, and in the campus martius, over each other. A Martius, a Scylla, an Anthony, and an Octavius, were by turns their idols, and their scourges. Who can perceive the most distant resemblance between either of these republics; and, the states of New England, of Pennsylvania, of the Carolina’s, or Virginia? Who will venture to compare those of Delaware, Georgia, Kentucky, or Tennessee, to them. But the improvements which the representative system has received in America, will I trust prove an effectual guard against those scenes of violence, which have stained the annals of the ancient republics, without weakening, or in any degree impairing the public, force, and energy, on the one hand, or endangering the liberties of the people, on the other; this leads us to a short digression concerning:
SECTION VII.
The analysis and separation of the several powers of government, which if not a discovery reserved for the eighteenth century, bids fair to be practically understood, more perfectly than in earlier times. It consists in the just distribution, of the several distinct functions, and duties, of the public agents, according to their respective natures.
The essential parts of civil power may not improperly be divided into the internal, or such as are to be exercised among the citizens of a state, within the state itself; and the external, or such as may be exercised towards foreign nations, or different and independent states: the design of civil government being, both to promote peace and happiness with an undisturbed enjoyment of all their rights, to the citizens of the state, by good order at home, and to defend the whole body, and all its members from any foreign injuries; and to procure them any advantages that may be obtained by a prudent conduct towards foreigners. These powers, which in all great empires, and monarchies, and even in smaller states, are generally united in one and the same man, or body of men, according to the system adopted by the states of the American confederacy, are, as was before observed, separated from each other; the former branch, being with some exceptions, confided to the state-governments; the latter to the federal government.
The former branch of these powers, or that which is to be exercised within the state, are, shortly, these. First, the power of directing the actions of the citizens by laws requiring whatever is requisite for this end, and prohibiting the contrary by penalties: determining and limiting more precisely the several rights of men, appointing the proper methods for securing, transferring, or conveying them, as the general interest may require, and even limiting their use of them, in certain cases, for the same general purpose. Secondly, another power of the same class is that of appointing in what manner, and what proportion each one shall contribute towards the public expenses out of his private fortune, or private gains, by paying taxes, as the state of the people will admit. These two branches of power are commonly called legislative; and in this state, and I believe in every other in the union, they are confided to two distinct bodies of men chosen at stated periods by the people themselves, one of which is called the house of delegates, or representatives, the other the senate; the first being generally vested with the initiative authority, or right of commencing all laws; the other, that of amending, ratifying, or rejecting. Both bodies being absolutely independent of each other.
The power of jurisdiction in all cases of controversy between the citizens of the state about their rights, by applying the general laws to them; and of trying, 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
