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lation” 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


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; 1 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 executive 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.

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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,


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;" i 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

tion of the states, or the people, can exercise any powers reserved to them; though they are the very powers vested in the king by prerogative, as the delegate or representative of the people of his kingdom or empire.

In other respects, the great features of both governments are the same; both established by the people of the estates of one, the states of the other; each state or estate represented by their representatives in distinct bodies, forming independent branches of the legislature, chosen or appointed in a different manner; but each representing their several and respective estates or states; though, when elected and returned, “serving for the whole realm ;" the whole United States. “The estates of the realm,” in parliament; “ the United States, which may be included within this Union” in congress, acting by “ the representation from each state,” in the house of commons, or representatives, and in the house of lords or senate, by persons entitled by birth, office, tenure, or appointment by the king, or “chosen from each state, by the legislature thereof;" and both lords and senate constituting the middle power, between the executive and the people.

There is another feature common to both governments. In England the king has his constitutional counsellors and councils. The peers of the realm are, by their birth, hereditary counsellors of the crown; and may be called together by the king to impart their advice, 227. The judges are a council for law matters, 229. But the principal council is the privy council, and by way of eminence is called the council, 229. So the president has his councils. “He may require the opinion in writing of the principal officer at the head of each of the executive departments," &c. 2 Sec. 2 Art, Clause 2, Const. This is called a cabinet council; it is a privý council, in which the president is present, as the king is in person in his. 4 Bl. Com. 231. The senute is the council in making treaties, in advising and consenting to appointments to office. Senttors are not, ex officio, counsellors individually; but the president “may convene both houses, or either of them.”



Another striking feature of affinity in the great political institutions of both countries, is in the convention of the estates of the one, and the states of the other, as its organic power: they pass ordinances rather than acts of parliament. 1 Bl. 156. In England it is called a convention parliament," 151; because the two houses meet, as the representatives of their several estates; each sitting and acting separately, as in their legislative capacity, but acting as a constituent convention. There can be no constitutional parliament

without a king: the houses meet in convention, and declare the rightful heir to the throne to be the king, as at the restoration, 151; or as at the revolution of 1688, when the houses as conventions, declared the throne vacant, by the king having abdicated the crown; name the person to fill it, and fix the succession in future: but in both cases acts of parliament were passed, when all the constituent parts were assembled, to confirm and validate the acts of the conventions. 3 Ruff. 145, 415; 1 Bl. Com. 211, &c.

In one of the acts of confirmation, the conventions of 1688 are thus noticed; “whereas the lords, spiritual and temporal, and commons, assembled," &c., lawfully, fully, and freely, representing all the estates of "the people of this realm, did,” &c. 3 Ruff. 440. How they assembled, appears from the journals of the two houses. The lords met separately in convention, and received a letter from the prince of Orange, addressed to the lords, spiritual and temporal, assembled in convention, 14 Journ. Lords, 101, 2; and proceeded as a convention, till they agreed upon certain resolutions of the convention of the commons, declaring, “that the king had abdicated the government, and the throne being thereby vacant." Ib. 125.

Those persons who had been members of the house of commons in the last parliament, met, pursuant to a letter addressed to them from the prince of Orange, and passed some resolutions, 10 Journ. Comm. 5, 6; proposing a convention, to consist of as many members from each county, &c., as are of right to be sent to parliament, to be elected to represent them, and entered into an association, engaging to Almighty God, the prince of Orange, and to one another, in defence of it, never to depart from it, until our religion, our laws, and our liberties, are secured,” &c. p. 6, a. b. Writs of election were issued for the election of members of the convention, "of such a number of persons to represent them, as from every such place is or are of right to be sent to parliament.7, b, 8, a. Members having been elected, met and chose a chairman, and called themselves the “commons," 9, a. 11, a. 12, a. the house;" and the present convention," 13, a. In their proceedings they “resolved, nemine contradicente," 16, a.; drew up the heads of what they desired, 17, a.; and agreed upon' a joint declaration by the two conventions, 23, a.; which, after being amended, was headed,

“Die Martis, 12 Februaris, 1688." “The declaration of the lords spiritual and temporal, and commons, assembled at Westminster."; Vide 1 vol. Laws, U. S. 7.; 1 Journ. Cong. 27, 8, 312.

“Whereas the late king, James the second,” &c., (enumerating specially the wrongs and grievances,) “having abdicated the government, and the throne being thereby vacant,(after stating the election of the members, pursuant to the letters of the prince of Orange, proceeds.) “And thereupon the said lords, spiritual and temporal, and commons, pursuant to their respective letters, and elections, being now assembled in a full and free representation of

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