rule will apply to other States, such as Maine, more recently admitted into the Union.

§ 1406. We have thus passed through the positive prohibitions introduced upon the powers of the States. It will be observed, that they divide themselves into two classes; those which are political in their character, as an éxercise of sovereignty; and those which more especially regard the private rights of individuals.1 In the latter, the prohibition is absolute and universal. In the former, it is sometimes absolute and sometimes subjected to the consent of Congress. It will at once be perceived how full of difficulty and delicacy the task was to reconcile the jealous tenacity of the States over their own sovereignty, with the permanent security of the national government and the inviolability of private rights. The task has been accomplished with eminent success. If every thing has not been accomplished which a wise forecast might have deemed proper for the preservation of our national rights and liberties, in all political events, much has been done to guard us against the most obvious evils, and to secure a wholesome administration of private justice. To have attempted more would probably have endangered the whole fabric, and thus have perpetuated the dominion of misrule and imbecility.

§ 1407. It has been already seen, and it will hereafter more fully appear, that there are implied as well as express prohibitions in the Constitution upon the power of the States. Among the former, one clearly is that no State can control, or abridge, or interfere with the exercise of any authority under the national government. And it may be added, that State laws-as, for instance, State statutes of limitations and State insolvent laws have no operation upon the rights or contracts of the United States.3

§ 1408. And here end our commentaries upon the first article of the Constitution, embracing the organization and powers of the legislative department of the government, and the prohibitions upon the State and national governments. If we here pause but for a moment, we cannot but be struck with the reflection, how admirably this division and distribution of legislative powers

1 See Ogden v. Saunders, 12 Wheat. R. 334, 335.

2 1 Kent's Comm. Lect. 19, p. 382.

3 United States v. Wilson, 8 Wheat. R. 253; United States v. Hoar, 2 Mason, R.

between the State and national governments are adapted to preserve the liberty and promote the happiness of the people of the United States. To the general government are assigned all those powers which relate to the common interests of all the States, as comprising one confederated nation. While to each State is reserved all those powers which may affect or promote its own domestic interests, its peace, its prosperity, its policy, and its local institutions; at the same time, such limitations and restraints are imposed upon each government, as experience has demonstrated to be wise, to control any public functionaries, or as are indispensable to secure the harmonious operations of the Union.1

§ 1409. A clause was originally proposed, and carried in the convention, to give the national legislature a negative upon all laws passed by the States, contravening, in the opinion of the national legislature, the articles of the Union, and treaties subsisting under its authority. This proposition was, however, afterwards negatived, and finally abandoned.2 A more acceptable substitute was found in the article (hereafter to be examined) which declares that the Constitution, laws, and treaties of the United States shall be the supreme law of the land.

1 1 Tuck. Black. Comm. App. 314.

2 Journal of Convention, 68, 86, 87, 104, 107, 136, 183, 288. North American Review, October, 1827, p. 264, 266; 2 Pitkin's History, 261. This seems to have been a favorite opinion of Mr. Madison, as well as of some other distinguished statesmen. North American Review, October, 1827, p. 264, 265, 266; 2 Pitkin's History, 251, 259.

CHAPTER XXXVI.

we

§ 1410. IN the progress of our examination of the Constitution, now arrived at the second article, which contains an enumeration of the organization and powers of the executive department. What is the best constitution for the executive department, and what are the powers with which it should be entrusted, are problems among the most important, and probably the most difficult to be satisfactorily solved, of all which are involved in the theory of free governments. No man, who has ever studied the subject with profound attention, has risen from the labor without an increased and almost overwhelming sense of its intricate relations and perplexing doubts. No man, who has ever deeply read the human history, and especially the history of republics, but has been struck with the consciousness how little has been hitherto done to establish a safe depositary of power in any hands; and how often, in the hands of one, or a few, or many, of an hereditary monarch or an elective chief, the executive power has brought ruin upon the state, or sunk under the oppressive burden of its own imbecility. Perhaps our own history, hitherto, does not establish that we have wholly escaped all the dangers; and that here is not to be found, as has been the case in other nations, the vulnerable part of the republic.

§ 1411. It appears that the subject underwent a very elaborate discussion in the convention, with much diversity of opinion; and various propositions were submitted of the most opposite character. The Federalist has remarked, that there is hardly any part of the system, the arrangement of which could have been attended with greater difficulty, and none which has been inveighed against with less candor or criticised with less judgment.2

§ 1412. The first clause of the first section of the second article is as follows: "The executive power shall be vested in a President

1 See 2 Elliot's Deb. 358; 1 Kent's Comm. Lect. 13, p. 255, 256.

2 The Federalist, No. 67.

of the United States of America. He shall hold his office during the term of four years; and, together with the Vice-president, chosen for the same term, be chosen as follows."

§ 1413. Under the confederation there was no national executive. The whole powers of the national government were vested in a Congress, consisting of a single body; and that body was authorized to appoint a committee of the States, composed of one delegate from every State, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine States, as nine States should consent to. This want of a national executive was deemed a fatal defect in the confederation.

§ 1414. In the convention, there does not seem to have been any objection to the establishment of a national executive. But upon the question, whether it should consist of a single person, the affirmative was carried by a vote of seven States against three.2 The term of service was at first fixed at seven years, by a vote of five States against four, one being divided. The term was afterwards altered to four years, upon the report of a committee, and adopted by the vote of ten States against one.3

§ 1415. In considering this clause, three practical questions are naturally suggested: First, whether there should be a distinct executive department; secondly, whether it should be composed of more than one person; and, thirdly, what should be the duration of office.

§ 1416. Upon the first question, little need be said. All America have at length concurred in the propriety of establishing a distinct executive department. The principle is embraced in every State constitution; and it seems now to be assumed among us, as a fundamental maxim of government, that the legislative, executive, and judicial departments ought to be separate, and the powers of one ought not to be exercised by either of the others. The same maxim is found recognized in express terms in many of our State constitutions. It is hardly necessary to repeat, that where all these powers are united in the same hands, there is a real des

1 Confederation, Art. 9, 10.

2 Journ. of Convention, 68, 89, 96, 136. [Mr. Calhoun advocated a dual executive, as essential to the protection of his section of the country, if not to the perpetuity of our institutions. Discourse on the Constitution, &c., Works, I. 393.]

3 Journal of Convention, 90, 136, 211, 225, 324, 332, 333; 2 Pitkin's Hist. 252.

potism, to the extent of their coercive exercise. Where, on the other hand, they exist together, and yet depend for their exercise upon the mere authority of recommendation (as they did under the confederation1), they become at once imbecile and arbitrary, subservient to popular clamor, and incapable of steady action. The harshness of the measures in relation to paper-money, and the timidity and vacillation in relation to military affairs, are examples not easily to be forgotten.

§ 1417. Taking it, then, for granted, that there ought to be an executive department, the next consideration is, how it ought to be organized. It may be stated in general terms, that that organization is best which will at once secure energy in the executive and safety to the people. The notion, however, is not uncommon, and occasionally finds ingenious advocates, that a vigorous executive is inconsistent with the genius of a republican government.2 It is difficult to find any sufficient grounds on which to rest this notion; and those which are usually stated belong principally to that class of minds which readily indulge in the belief of the general perfection, as well as perfectibility, of human nature, and deem the least possible quantity of power, with which government can subsist, to be the best. To those who look abroad into the world, and attentively read the history of other nations, ancient and modern, far different lessons are taught with a severe truth and force. Those lessons instruct them, that energy in the executive is a leading character in the definition of a good government. It is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, and to the security of liberty against the enter

1 See 1 Jefferson's Corresp. 63.

2 See 2 American Museum, 427. Milton was of this opinion; and triumphantly states, that "all ingenious and knowing men will easily agree with me, that a free commonwealth, without a single person or house of lords, is by far the best government, if it can be had." (Milton on the Ready and Easy Way to establish a Free Commonwealth.) His notion was, that the whole power of the government should centre in a house of commons. Locke was in favor of a concentration of the whole executive and legislative powers in a small assembly; and Hume thought the executive powers safely lodged with a hundred senators. (Hume's Essays, Vol. I., Essay 16, p. 526.) Mr. Chancellor Kent has made some just reflections upon these extraordinary opinions in 1 Kent's Comm. Lect. 13, p. 264.

1 Kent's Comm. Lect. 13, p. 253, 254; Rawle on Const. ch. 12, p. 147, 148.