AN ORDINANCE TO NULLIFY AN ACT OF THE CONGRESS OF THE UNITED STATES, ENTITLED "AN ACT FURTHER TO PROVIDE FOR THE COLLECTION OF DUTIES ON IMPORTS," COMMONLY CALLED THE FORCE BILL.

We, the people of the State of South Carolina in convention assembled, do declare and ordain that the act of the Congress of the United States, entitled, "an act further to provide for the collection of duties on imports, approved the 2nd day of March, 1833, is unauthorized by the Constitution of the United States, subversive of that Constitution, and destructive of public liberty, and that the same is, and shall be deemed null and void within the limits of this State; and it shall be the duty of the Legislature, at such time as they may deem expedient, to adopt such measures and pass such acts as may be neces sary to prevent the enforcement thereof, and to inflict proper penalties on any person who shall do any act in execution or enforcement of the same within the limits of this State. We do further ordain and declare, that the allegiance of the citizens of this State, while they continue such, is due to the said State; and that obedience only, and not allegiance, is due by them to any other power or authority, to whom a control over them has been, or may be delegated by the State; and the General Assembly of the said State is hereby empowered, from time to time, when they may deem it proper, to provide for the administration of the citizens and officers of the State, or such of the said officers as they may think fit, of suitable oaths or affirmations, binding them to the observance of such allegiance, and abjuring all other allegiance, and also to define what shall amount to a violation of their allegiance, and to provide the proper punishment for such violation.

Done at Columbia, the eighteenth day of March, in the year of our Lord one thousand eight hundred and thirty-three, and in the fiftyseventh year of the Sovereignty and Independence of the United States of America.

ROBERT Y. HAYNE,

Delegate from the parishes of St. Phillips and St. Michaels President of the Convention.

ISAAC W. HAYNE, Clerk.

CHAPTER III.

THE THREE DEPARTMENTS.

§ 42. The Three Departments of the Government of the United

States.

THE government of the United States is divided into three great departments, the legislative, the executive and the judiciary.1 The first makes the laws; the second carries them into effect; and the third decides all disputes to which they give occasion. These departments are not, however, absolutely independent. The executive has the power to interfere in legislation by his veto, which can only be overcome by the vote of two-thirds of each legislative house. The upper chamber of the legislature discharges executive functions in connection with the President

upon the ratification of treaties and the confirmation of appointments to office; and also judicial functions in the trial of impeachments. The judiciary has been constitutionally vested with the power to appoint to certain offices 2 which many consider to be executive.3

In the main, however, these departments are distinct and independent. Each of them is vested with powers to protect itself against encroachment upon its jurisdiction by the other. The legislative may be checked by the executive, through his veto power and his power to refuse to execute a law which he considers to be unconstitutional. It may be checked by the judiciary, through their power to refuse to enforce unconstitutional laws and to give relief to those injured or threatened by action founded upon them.

The checks upon the executive by the legislature are the power of two-thirds of the Senate and a majority of the lower House to remove him by impeachment, the power of a majority of either house to withhold the payment of the funds needed to discharge his functions, and perhaps the power of two-thirds of both to prescribe, over his veto, the manner in which he shall discharge his duties. The checks upon him by the judiciary are their power to order the punishment of any of his subordinates, if not of himself, for illegal action in pursuance of his orders; to forbid such acts when threatened, and in certain cases to command them, or perhaps even him, to obey the law.

The checks upon the judiciary are the power of the legislature to remove their members in the same manner as the executive, by impeachment; the power of either house to refuse the appropriations necessary to carry on their business; the power of the legislature and executive, or two-thirds of both houses without the executive, to limit their jurisdiction and prescribe the manner in which it shall be exercised, except in so far as it is protected by the Constitution; and the power of the executive to refuse to enforce a judgment which he considers unconstitutional, and to pardon all whom he thinks were improperly convicted.5

There thus exists a system of checks and balances, each of

2 Constitution, Article II, Section 3; Ex parte Siebold, 100 U. S., 371.

3 The Federalist, No. xlvii. See the discussion of this question, infra.

4 See supra, § 38, over notes 94 and 95, and infra, ch. XIII.

5 Judge Frazier was removed upon impeachment by the Legislature of

which has been used or threatened, designed to preserve the original form of the Constitution unchanged.

This system is the peculiar characteristic of the United States, and has established there a presidential form of government as distinguished from the cabinet governments which usually prevail. In these, the legislative and executive functions are both exercised by the same body which has usually absolute control over the judiciary by the power to remove them and appoint their successors; and the nominal head, whether called king or president, has his power reduced to a shadow, while the judges are powerless against the assaults of the legislature.

The importance of the maintenance of this principle is recognized in the Constitution of the United States, both by the manner in which it distributes the powers granted by it, and by the language which it uses. In most of the State constitutions, from their earliest foundation, the principle is expressly declared. Thus the present Constitution of Virginia ordains:

"The legislative, executive and judicial departments shall be kept separate and distinct, so that neither exercise the powers properly belonging to either of the others; nor shall any person exercise the power of more than one of them, except as hereinafter provided.""

And the present, which is also the first, Constitution of Massa

"In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that this may be a government of laws and not of men."8

$43. History of the Classification of Governmental Powers. The classification of governmental powers into three is as old as Aristotle, but the importance of their separation was first exTennessee, for his interference by the writ of habeas corpus with the action of the lower house. (See infra, § 94, and Appendix to this volume.) Cases of the refusal by the executive to enforce decisions which he considered unconstitutional, were the conduct of Jackson in regard to the Cherokee

cases (infra, § 45), and the recent action of Comptroller Bowler in refusing to audit the warrant for the payment of the sugar bounty.

6 Compare Cooley, Constitutional Limitations, 6th ed., pp. 45-47. 7 Article II.

8 Part First, Article XXX.

plained by Montesquieu.1 His great work was accepted as infallible by the leaders of the American people throughout the Revolution and at the time of the Federal Convention.2 More than half the first State constitutions contained declarations of the

importance of the distinction. The rest recognized it in their structure. The first constitution proposed for Massachusetts was rejected partly for the reason that the powers were not kept sufficiently apart.3

4

The first resolution of the Federal Convention was, "that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary." This was adopted by a considerable majority.5 The only contest was over the question whether they should create a new and national government, or should merely amend the Articles of Confederation. There was no dispute as to the tripartite division of the government if that were to be national in its character.6

The Constitution was opposed upon the ground that these powers

§ 43. 1 Supra, § 6, note 10. 2 Supra, § 6, note 9.

8 The reasons assigned by the County of Essex are contained in a pamphlet called The Essex Result, published in 1778. It contains the following language: "The legislative power must not be trusted with one assembly. A single assembly is frequently influenced by the vices, follies, passions, and prejudices of an individual. It is liable to be avaricious, and to exempt itself from the burdens it lays on its constituents. It is subject to ambition; and after a series of years will be prompted to vote itself perpetual. The Long Parliament in England voted itself perpetual, and thereby for a time destroyed the political liberty of the subject. Holland was governed by one representative assembly, annually elected. They afterwards voted themselves from annual to septennial, then for life; and finally exerted the power of filling up all vacancies, without application to their constituents. The government of Holland is now a tyranny

though a republic. The result of a single assembly will be hasty and indigested, and their judgments frequently absurd and inconsistent. There must be a second body to revise with coolness and wisdom and to control with firmness, independent upon the first, either for their creation or existence. Yet the first must retain a right to a similar revision and control over the second." See the New England Magazine for March, 1832, p. 9. See also the statement of the reasons for the rejection of this Constitution in the pamphlet cited supra, § 8, note 7.

4 Supra, § 17.

5 Six to one on the first vote in the committee of the whole. New York being divided and the other States absent. Seven to three on the reconsideration, Maryland being divided. Supra, § 17, over notes 5 and 18.

6"An independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community, seemed to be generally admitted as