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carefully limited, both in the extent and duration of its power," and where the legislative power is exercised by an assembly responsive to the passions of the multitude, and capable of giving effect to those passions, “it is easy to see that the tendency to usurpation is, if not constant, at least probable ; and that it is against the enterprising ambition of this (the legislative) department, that the people may well indulge all their jealousy, and exhaust all their precautions.”* He adds, that under their forms of government, the legislative body

“ Has the pride as well as the strength of numbers. It is easily moved, and steadily moved, by the strong impulses of popular feeling and popular odium. It obeys, without reluctance, the wishes and the will of the majority for the time being. The path to public favour lies open by such obedience, and it finds not only support but impunity, in whatever measures the majority advises, even though they transcend the constitutional limits. It has no motive, therefore, to be jealous, or scrupulous in its own use of power; and it finds its ambition stimulated, and its arm strengthened, by the countenance and the courage of numbers.

These views are not alone those of men who look with apprehension upon the fate of republics; but they are also freely admitted by some of the

§ 533.

strongest advocates for popular rights and the permanency of republican institutions. Our domestic history furnishes abundant examples to verify these suggestions."*

He then asks, what is the remedy? Does it lie in frequent appeals to the people, in the hope of their speedily correcting their own errors? He answers, “But if these be frequent, it will have a tendency to lessen that respect for, and confidence in, the stability of our institutions, which is so essential to their salutary influence.”+ Neither is it probable that they would be successful; for “temporary feelings and excitements, popular prejudices, an ardent love of theory, an enthusiastic temperament, inexperience, ignorance, as well as preconceived opinions, operate wonderfully to blind the judgment and seduce the understanding."

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“A lucky hit, or a strong figure, has not unfrequently overturned the best-reasoned plan. Thus, Dr. Franklin's remark, that a legislature with two branches, was a waggon drawn by a horse before and a horse behind, in opposite directions, is understood to have been decisive in inducing § 535.

+ $ 537.


Pennsylvania, in her original constitution, to invest all the legislative power in a single body. In her present constitution that error has been fortunately corrected."*

But such appeals to the people, whether frequent or at distant intervals, would be ineffectual, inasmuch as, “ the tendency of republican governments being to the aggrandisement of the legislature at the expense of the other departments,” and the members of the legislature being numerous and influential, dwelling among the people, and connected with them by various ties of confidence and interest, the latter would plead their cause before the people at a great advantage, as compared with the judiciary or the executive, whose rights they may have invaded, and could scarcely fail to be sustained by the public voice. He concludes that the only effectual barrier against the inroads of the legislature upon the other departments of the Government, is to be looked for “in some contrivances in the interior structure of the Government itself," whereby “ the constitutional independence of

* § 537.

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each may be fully provided for.”
“ Each should have its independence secured
beyond the power of being taken away by either,
or by both the others,” by such a “partial par-
ticipation of each in the powers of the other,”
and such a system “of checks and balances,”
as we in England happily possess in our own
Constitution, and which that of the United
States has sought to follow as far as circum-
stances permitted.

The independence of the judicial department, “which must always be the weakest,” can only be preserved, Mr. Justice Story rightly insists, by the legislature abstaining from exercising any power over the salaries of the judges, when they have been once appointed by the executive. This forbearance has been departed from in many of the individual States. Not only, as before-mentioned, have the salaries of the judges been, in many instances, made subject to the annual vote of the legislature, but in others the judges themselves are appointed, not by the executive, but by the electors, and for short periods of years.

In anticipation of the possibility future attack upon the independence of the judges of the Supreme Court of the United States, who are appointed by the Constitution as its defenders in the last resort, Mr. Justice Story urges very forcibly the necessity of those “additional guards,” which can alone “protect this department from the absolute dominion of the others.” Yet, he adds, “rarely have these guards been applied; and every attempt to introduce them has been resisted with a pertinacity which demonstrates how slow popular leaders are to introduce checks upon their own power; and how slow the people are to believe that the judiciary is the real bulwark of their liberties."*

* § 540.

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