Front Page Titles (by Subject) SECTION 5.: DIVISION AND LIMITATION OF POWER. - Construction Construed and Constitutions Vindicated
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
SECTION 5.: DIVISION AND LIMITATION OF POWER. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
About Liberty Fund:
The text is in the public domain.
Fair use statement:
DIVISION AND LIMITATION OF POWER.
In this and the following section, I shall endeavour to establish principles vitally important to our system of government, and however the subject may be handled, particularly worthy of the publick consideration.
Human societies were originally constituted with a view to the interest of one or a few, and governments were consequently founded in the simple principle of subordination. They were splendid statues, the people were pedestals, and a succession of convulsions, occasioned by a gas too sublimated or too heavy, constantly overturned, only to set them up again. Monarchy, aristocracy, and democracy succeeded each other; but all being founded in the principle of subordination to unlimited power, it ran like the blood of the Stuarts through the whole family, and made each individual a scourge to mankind. As knowledge advanced, philosophers sought for alleviations of a condition so unhappy; and having only seen those three forms of government, called them natural principles, and expected a remedy for the defects of each, from a mixture of all. It was seen and admitted, that the formation of a government, after the model of an army, by a series of subordination from a king to a constable, from a general to a corporal, made tyrants and slaves; and checks and balances were contrived to prevent both consequences, by poizing the three supposed natural principles against each other, fraught with co-ordinate, distinct and independent powers. Thus the principle of a necessary series of subordination was exploded; but as the discovery was new, and as the dogma “that monarchy, aristocracy, and democracy comprised all the ingredients of government” was still believed; it was imperfectly cultivated. Hence absolute sovereignty continued to be assigned to mixed governments, and absolute subordination to the people. This first effort of political improvement was however recommended by a considerable portion of practical success. The checks, collisions and balances, though imperfectly contrived, produced effects, which exalted and invigorated several nations, above those which had neglected similar political modifications. But still the error of retaining absolute power in the government, and inflicting absolute submission on the people, caused no small degree of oppression, which excited mankind to search for a better remedy. Locke and others at length discovered, that sovereignty in governments and passive obedience in nations, far from being natural or necessary principles for civil societies, were arbitrary and pernicious notions, capable of being supplanted by opinions more natural; and that civil government, constructed upon different principles, and subjected to responsibility and control, might be made more productive of national happiness. But the natural right of self-government, and the consequent rights of dividing and limiting power, might have slept forever in theory, except for the American revolution; which seems to have been designed by Providence for the great purpose of demonstrating its practicability and effects. We seem to have been propelled by necessity and commanded by fate, to stride beyond the principles of absolute sovereignty in a government, and absolute subordination in the people; and beyond the ineffectual project of mixing monarchy, aristocracy, and democracy together; quite up to the sound political doctrines of limitation, restriction, and division of power. Far from allowing sovereignty to governments, or confiding our rights to a balance between arbitrary and artificial political principles, we were obliged to feel and to act upon the genuine and natural principle of self-government; to extract from it the obvious truths “that sovereignty resided in the people, and that magistrates were consequently their trustees,” and to vindicate these rights by creating co-ordinate and collateral political departments invested with limited powers instead of that absolute power, so highly pernicious in the hands of any one of the three ancient principles, and so far from being made harmless by their mixture. Thus we constituted a wide difference between our policy and that of the English; in its origin; in expelling from it two of their principles entirely; in rejecting the balances for the better security of co-ordinate departments; and in with-holding from these departments, either singly or united, the rights of sovereignty, as exercised by the English government. The first division of power we have established according to this new policy, consists of the limited rights delegated by the people to their governments or trustees; and of all the residue of the attributes of sovereignty, retained, as not having been delegated by the people. Under the English form of government, this division, with its concomitant limitations, is utterly unknown.
Our second division of power, also unknown to the English system, is that between the governments of the states, and the government of the union. Previously to our revolutionary war, the colonies had been thoroughly lectured upon the subjects of sovereignty, supremacy, and a division of powers. The English parliament contended, that its sovereignty or supremacy included all means necessary or convenient, in its own opinion, to effect its ends. The colonies admitted its supremacy in making war and peace, and in regulating commerce; but denied that this admission included a concession of means, subversive of their own right of internal or local government; as to which they claimed a supremacy for themselves. The parliament contended, that the right of making war, conceded by the colonies, implied a right of using all the means necessary for obtaining success; such as raising a revenue, appointing collectors, raising troops, quartering them upon the colonies, and many other internal laws; and that the right of regulating commerce, also involved a right of imposing duties, and establishing custom houses for their collection; arguing, that it would be absurd to allow powers, and with-hold any means necessary or proper to carry them into execution. The colonies replied, that it would be more absurd to limit powers, and yet concede unlimited means for their execution, by which the internal supremacy, upon which their liberty and happiness depended, though nominally allowed, would be effectually destroyed: That the terms “sovereignty or supremacy,” however applicable to the parliament, were applicable also to the colonial governments, as to internal powers: That the necessity of controuling supreme, sovereign or absolute power, in governments, had been proved by experience, particularly in England; where magna charta, the petition of right, and many declaratory laws, had limited its means to a great extent: and that however the means contended for by the parliament, might be useful for carrying on war or regulating commerce; yet, that a restriction of those means would be still more useful, because it was necessary for the preservation of their liberties. The parliament closed the debate, by declaring that it had a right to legislate over the colonies in all cases whatsoever; and denying the distinction between internal and external legislation, imposed some trifling taxes of the former character, as an entering wedge into the colonial claim of local supremacy, to be gradually driven up to the head. In that on tea, the ingenuity was used of attempting to establish a ruinous precedent, by conferring a pecuniary favour, in diminishing the price of the article in favour of the colonies. But the colonies, too wary to be caught by a gilded hook, detected, resisted and defeated the artifice.
The controversy lasted for many years. It drew forth the talents of the ablest writers on both sides the question; and those of the great Doctor Johnson were exerted to the utmost, in favour of the passive obedience due to sovereignty or supremacy. All the treasures of wisdom, and all the sensibilities of interest, united to attract the attention of both countries to the subject. There never was one more ably discussed, or better understood. And no national interpretation of the terms used in the debate could possibly be more complete. Their right to local supremacy and internal legislation, was asserted by every colony, ably defended by many individuals, and conclusively proved by our early congresses composed of a rare body of men. This thorough investigation produced a conviction, never I hope to be eradicated, which dictated our political system, prescribed the terms both of the first and second union, and defined the nature of the division of powers between the state governments, and the government of the union.
I have never met with but one respectable authority among our own writers, by which the correctness of the colonial principles has been questioned; and this is only comprised in a relation of facts, without being stampt by the concurrence of the author. In Marshall’s life of Washington, vol. ii. 71 and 72, it is said, “that many of the best informed men in Massachusetts, had perhaps adopted the opinion of the parliamentary right of internal government over the colonies, that the English statute book furnishes many instances of its exercise; that in no case recollected was their authority openly controverted; and that the general court of Massachusetts on a late occasion, explicitly recognized the same principle.” These historical facts are undoubtedly designed to warn us of the stealth with which oppression approaches, and the enormities towards which precedents travel; that they ought not to be sanctified by time nor repetition; and that the best informed men may be led by them into the most obvious errors; for the same book abounds with eulogies upon those who denied this doctrine; and concurs, when the author expresses his own opinion, in the propriety of resisting it. The essays of president Adams, written in 1774 and 1775, fully explain how it happened, that many of the best informed men in Boston took a side, opposite to that which was embraced by almost all the philosophers of Europe, who annexed a degree of veneration to the characters of our own patriots, in which even other nations participate. These essays, lately published, are replete with profound observations upon the principles we are considering.
It is sufficient however for my argument, if the people of the colonies believed in the doctrines which they asserted, bled for and established; because the influence of opinions thus rivetted, upon their political measures, will be weighed by impartiality and admitted by candour. During, and soon after a war, firmly waged for eight years, to resist a right to legislate for them locally and internally, inferred from parliamentary sovereignty or supremacy, the colonies or states constructed two unions, and established in both a division of power, bearing a strong similitude to that upon which they were willing to have continued their union with England; yielding to her the regulation of war, peace and commerce, and retaining for themselves local and internal legislation. The first “union between the United States of America for their common defence and general welfare“ begins where the second ends. The first “retains the sovereignty and rights to the states not delegated to the United States.“ The second “reserves to the states the powers not delegated to the United States.” The first confers upon congress, almost all the powers of importance bestowed by the second, except that of regulating commerce; and among them the power of establishing a post office. The second only extends the means for executing the same powers, by bestowing on congress a limited power of taxation; but these means were by neither intended to supersede nor defeat those ends retained or reserved by both. By the first, unlimited requisitions to meet “the charges of war and all other expenses for the common defence and general welfare“ were to be made by congress upon the states. By the second, congress are empowered to lay taxes under certain restrictions “to provide for the common defence and general welfare.” But a sovereign and absolute right to dispose of these requisitions or taxes without any restriction is not given to congress by either. The general terms used in both are almost literally the same; and therefore they must have been used in both, under the same impression of their import and effect. By connecting in one view the controversy with England, the first, and the second union; the vindication of colonial, local and internal government by a long war, and innumerable publick acts; the retention of it by the first union; its reservation by the last; and the accommodation proposed with England on the terms of allowing to the parliament the powers of war, peace, and regulating commerce, given to congress; it is impossible not to discern a series of testimony, demonstrating a strict subserviency of each distinct item to the primary end, of establishing a division of power, by which an independent internal government should be secured, first to the colonies, and subsequently to the states. Nor can a better expositor of particular words and phrases, than this primary end, be discovered.
In fact, the question between England and the colonies was far more favourable to the former, than that which has arisen between congress and the states. The colonial governments were chartered bodies politick, and the acceptance of these charters was an acknowledgment of a supremacy in the grantor. As the English king in granting these charters acted as the agent of the English policy, he had no better right to dismember the parliamentary sovereignty by charters, than congress have to dismember the state sovereignty by the same instruments. Therefore these charters could not contract the parliamentary supremacy of legislation. But they contained no restriction of it, nor any reservations or donations to the colonies of exclusive internal legislation. Now, the state governments are not chartered by congress, and instead of a tacit acknowledgment of a supremacy in that body, or in any other department of the government of the union, the states have expressly asserted and retained their respective internal sovereignties. The case is yet stronger against the claim on behalf of congress. The government of the union is chartered by the states. Had the colonies, under their charters from the king of England, claimed a supremacy over the parliament, their pretension would have been equivalent to a claim of supremacy by the government of the union over the states. The grant of a charter implies a retention of every power not granted, just as a deed of gift or sale for a portion of an estate leaves unimpaired the title of the owner to the portion he does not convey away. A conveyance of part does not entitle the grantee to take more, or the whole of the residue if he pleases. The people were the true owners of a great fee simple estate. They have granted one portion of it to the state governments, another to the government of the union, and retained the residue for themselves. The grants were in trust for their benefit; and created the division of power between the government of the union, and the state governments, which we are contemplating. Now, if one trustee can by construction or by force, despoil the other of his portion, he will become so rich, as to be able to betray his trust, and deprive the owner of the part of his own estate retained. To allow, that a claim of sovereignty or supremacy in the government of the union, over the state governments, stood on as strong ground, as the same claim of the English parliament over the colonies, would be a concession more favourable than the fact; and, if neither the opinions of several well informed men in Massachusetts, nor the continued endeavours of the parliament to sustain the more plausible pretension, could suflice to obliterate the necessity of a division of power for the preservation of liberty, between the English and colonial governments, able to resist the assaults of encroachment; neither opinions nor precedents ought to unsettle the division of power between the state and federal governments, dictated by the same motive. Many of the arguments which convinced the colonies of the necessity for such a division in relation to England, apply forcibly to the government of the union; and a supremacy at London or at Washington, however more direful to liberty at one place, would not be divested of terrors at the other. The objections arising from distance, though the colonies should be represented in the parliament, were forcibly urged; and the experience of Ireland has subsequently furnished a proof of their propriety. From the same source, a number of weighty arguments may be drawn by the reader, sufficient to prove, that the great extent of the United States will not admit both of a central supremacy, and of a free form of governments; and that the preservation of liberty must depend on the division of power between the state and federal governments; or an accurate distinction between the powers bestowed and reserved.
Our system of civil policy, having established two divisions of power; that between the people and their governments, and that between the state governments and the government of the union; proceeds to avail itself of all the advantages which could be extracted from the English form of government. Had it set out from this point, I do not deny that it might have given some countenance to sundry constructions to which it has been exposed; but, if I am right in ascribing to it the two previous principles for which I have contended, they seem to be insurmountable obstacles to such inferences as the British system, controuled by no such obstacles, might supply. But though it has derived an intimation from this system, that the principle of dividing power is a good one, it is far from copying its checks and balances; and after having established the two great and operative divisions we have passed over, it proceeds to those of an inferior character, and continues to enforce the principle of division in a mode wholly new and entirely intrinsick. It rejects two of the English balances or divisions, and substitutes for them, an elective president and senate. It substitutes for the unsettled idea of the balances, a co-ordination of departments, a definition of the powers of each, and a subserviency of all to the power of the people. And it advances judicial power to an equivalency of independence, by an allotment of powers and duties conferred by the same constitutions, which prescribed the powers and duties of the other departments.
Our political philosophers surveyed the world of governments, not for the purpose of a servile imitation, but to collect, to compare and to weigh facts, in order to enrich their own by improvements; and by a more refined organization, to reap the benefits, unalloyed by the calamities of the models which they contemplated. Far from believing that man, whilst constantly advancing in his other attainments, had gotten to the end of his capacity in the science of government, and ought still to expect liberty in the lethargick lap of a political vis inertiæ; they saw that an extraordinary shock had aroused his faculties, and wisely seized upon a series of happy dispensations, to gather the moral blessings, which Providence seemed to have revealed.
The divisions, balances or limitations of power, in Greece, Italy, and England, had all been the result of civil wars, personal ambition, or domestick commotions; and therefore none had provided any visible restrictions for preventing, assuaging or deciding the hostilities which must forever ensue, between political departments invested with the right of controuling each other. Such hostilities between the people and senate of Rome, and among the king, lords and commons of England, had produced consequences which inculcated two truths; one, that a division of power so imperfectly delineated as to cause perpetual and violent collisions, was nevertheless greatly preferable to any form of government, founded in the most perfect series of subordination; the other, that these violent collisions were serious calamities, and seeds of frequent revolutions or settled despotisms. The object of our wise and good patriots, was to reap the benefits and avoid the evils arising from a division of power. By the declaration of independence, they solemnly stationed our social institutions upon solid ground, for the purpose of effecting both ends. It proclaims it to be “the right of the people to alter, abolish and institute governments, as to them shall seem most likely to effect their safety and happiness.” This right had been previously exercised by balanced orders. Their usurpation was thus subverted. A powerful supervisor and arbitrator, for moderating and deciding the controversies of political departments, was formed and recognized in the people; and a great defect of the old theory of the balances, in supposing there was none, removed. The same source of civil society furnished a specification of the rights and duties of each co-ordinate political or civil department, to which the theory of the balances was inadequate, as neither member of this theory could submit to another to ascertain its rights and powers, without being reduced to insignificance; and therefore the rights and powers under the balancing theory, were left to be distributed by perpetual contentions, secret frauds or open violence. But when this genuine authority for defining and limiting the rights and powers of political departments was found, the contentions between regal, aristocratical and democratical orders ceased; and a new species of political subordination, more perfect than any subsisting under the theory of balanced orders, succeeded. I ask the reader’s attentive consideration of the doctrine I am about to advance, as the truth or error of many subsequent observations will depend upon it. Between balanced orders there is no supremacy and no subordination. The supremacy they possess is over the nation, and the subordination they inflict, is not upon each other, but upon the nation, and upon the inferior officers of government. Are our political departments, balanced orders; if so, one department cannot be subordinate to another, according to the English system. Indeed a supremacy of one check or balance, over that check or balance intended as a controul or abridgment of this one’s power, would obviously defeat the check or balance designed to be substantial. By the authority of the right of self-government, we have with great deliberation established divisions of power, created political departments subordinate to the people, defined the functions of each, and prescribed to individuals and the inferior officers of each, the obedience respectively due to these departments. The only supremacy bestowed on these departments, is over the persons and things specifically subjected to the limited power of each; and the only subordination due to them, is from such persons and things. No supremacy is given to one department over another; and the sovereignty and its relative, subordination, contended for and admitted, as an indissoluble attribute to civil government, is established between the people and these departments; whilst good order is secured by the subordination of individuals and inferior officers, to the political departments to which they are severally subjected. Of this improved system for dividing and limiting power, we took the hint from the balances between monarchy, aristocracy and democracy, as established, not by a deliberative choice, but by violence; but whilst we adhered to the principle practised by this triumvirate for self-preservation, we applied it to the preservation of the general liberty, by creating co-ordinate and collateral political departments, with distinct powers, for the special design of making them mutual checks upon each other. For this end we have divided power between the people of each state and their governments; between the legislature, executive and judicature of the state governments; between the people of the United States and the government of the union; between the legislature, executive and judicature of the government of the union; and between the state governments and the government of the union. These divisions are surely as natural and practicable, as that between monarchy, democracy, and aristocracy. If a subordination of the king to the house of lords, or of the lords to the king, would destroy the intention of that division of power; a subordination of the government of the union to the governments of the states, or of the governments of the states to the government of the union, would also destroy the intention of this. The same idea applies with equal force to our other divisions of power, and proves, that an exchange of their mutual independency of each other, for a dependency and subordination upon one, would be contrary to the only principle, for which the balances and checks of kings, lords, and commons have been so much applauded. If two of these co-ordinate divisions of power were subordinate to the third, that system would be destroyed, because its essence, the checks and balances, would be no more. Should either of our co-ordinate divisions of power acquire a supremacy over another, the effect would be the same. Less than two centuries ago, the identical question we are now considering was debated with great pertinacity by the ablest writers in England, and was finally settled by a civil war. Filmer and Sydney espoused opposite sides. The former, with his co-adjutors, asserted the supremacy of the regal balance, and taught the Stuarts this principle, which lost the throne, and rendered their names detestable to posterity. Sydney became a martyr to the contrary faith. All the eulogies to the English system have been paid to their checks and balances; and all the liberty of the English nation, has been ascribed to the principle of dividing power. If, having more studiously laboured to avail ourselves of this principle, considered even in England as indispensable for the preservation of liberty, than any nation ever did; we have yet stupidly annihilated it, by investing one check or one balance with a supremacy over the rest, we had better go back to the English system, where it imperfectly exists, but in a degree to do some good, than to surrender it entirely. But if we construe our system of government as the English do theirs; that is, with an eye to the preservation of our checks and balances, as the only securities for a free government; its superior theory will secure to us more beneficial consequences, than they have ever experienced. A great defect of the English system is, that although in theory it professes to have created three co-ordinate departments of power, it has neglected to specify the rights of each with any precision; wherefore the triumvirate have had many violent contests to settle them; and these contests have only subsided in one mighty chaldron of corruption. But by ours, the powers of the several co-ordinate or balancing departments, far from having been left undefined to be scrambled for, are specified with such deliberative exactness, that each may very easily descry its own, unless it be blinded by avarice and ambition. Collisions are therefore likely to be more rare. But should they occur, our system has provided a safe referee and impartial judge, sufficient to prevent them from producing the aggravated consequences, which have been so often experienced in England for want of this powerful moderator. After having thus given practical effect, to the great principle of checking power by division, recommended by all sound politicians; constituting the boast of England and the envy of all other European nations; with an ingenuity and success, hitherto unexampled; shall we imitate some whimsical artists, who after having invented a beautiful machine, throw it away?
Let us go back to the quotation from the declaration of independence, for the sake of remarking, that its assertion of the “right of the people to alter, abolish and institute governments” could only have a reference to the conventional or collective beings, under that denomination, then existing. These were a people of each state. Accordingly the people of each state executed the vindicated right, and no body thought of any other people. By virtue of this right, the people of each state established certain co-ordinate divisions of power, without investing one with a supremacy over the others; and by virtue of the same right, solemnly asserted in that sacred instrument, the same people uniting with each other, established other co-ordinate divisions of power, still excluding an investiture of one, with a supremacy over the others. If this last act, so similar to the first, left an unexpressed supremacy to be found by construction; the first is exposed to the same species of ingenuity for abolishing from our entire political system, every thing analogous to checks and balances: For, legislative, executive and judicial mutual independence, cannot in my view, be placed upon stronger ground, than the independence of the governments of the states and of the union upon each other.
Lest however some future Filmer may undertake to prove, that one of these departments may constitutionally assume a supremacy over the other, by the instrumentality of means to effect good ends; as Charles the first did over the lords and commons, by resorting to ship money, as a convenient or necessary means, to effect an end highly beneficial to the English nation; I shall, on account of my own deficiency in authority, conclude this section with a few quotations, leaving their application to the reader. Ramsay’s history of the United States vol. ii. p. 167. “The rejection of British sovereignty therefore drew after it the necessity of fixing on some other principle of government.”
P. 172. “The far-famed social compact between the people and their rulers, did not apply to the United States. The sovereignty was in the people. In their sovereign capacity, by their representatives, they agreed to forms of government for their own security, and deputed certain individuals as their agents, to serve them in publick stations, agreeably to constitutions which they prescribed for their conduct.“
P. 173. “It is hoped for the honour of human nature, that the result will prove the fallacy of those theories, which suppose that mankind are incapable of self-government.”
P. 174. “Political evil will at least be prevented or restrained with as much certainty, by a proper separation or combination of power, as natural evil is lessened or prevented, by the application of the knowledge or ingenuity of man to domestick purposes.
“From history the citizens of the United States had been taught that the maxims, adopted by the rulers of the earth, that society was instituted for the sake of the governors, and that the interest of the many was to be postponed to the convenience of the privileged few, had filled the world with bloodshed and wickedness; while experience had proved, that it is the invariable natural character of power, whether entrusted or assumed, to exceed the proper limits, and, if unrestrained, to divide the world into masters and slaves. They therefore began upon the opposite maxims; that society was instituted, not for the governors but governed; that the interest of the few should in all cases give way to the interest of the many; and that exclusive and hereditary privileges were useless and dangerous institutions in society. With them the sovereignty of the people was more than a mere theory. The characteristick of that sovereignty was displayed by their authority in written constitutions.”
P. 175. “It therefore became necessary to run the line of distinction between the local legislatures, and the assembly of the States in congress.”
Federalist. p. 81. H. “The general government can have no temptation to absorb the local authorities left with the states. Commerce, finance, negociation and war, comprise all the objects of a love of power. All those things which are proper to be provided for by local legislation, can never be desirable cares of general jurisdiction. It is therefore improbable, that there should exist a disposition in the federal councils, to usurp the powers with which they are connected. But let it be admitted, for argument sake, that mere wantonness, and lust of domination, would be sufficient to beget that disposition; still it may be safely affirmed, that the sense of the people of the several states would controul the indulgence of so extravagant an appetite.“
P. 254. M. “The federal and state governments are in fact but different agents and trustees of the people, instituted with different powers, and designed for different purposes.“
P. 282. H. “In the compound republick of America, the power surrendered by the people, is first divided between two distinct governments, and the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other, at the same time that each will be controuled by itself.”
P. 288. H. “The federal legislature will not only be restrained by its dependance on the people, but it will be moreover watched and controuled by the several collateral legislatures.”
P. 302. H. “I am unable to conceive, that the state legislatures, which must feel so many motives to watch, and which possess so many means of counteracting the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their constituents.”