pular will. The "tiers etat," a name which one startled the ear, has become a body of acknowledged importance in the state.

The European governments had all grown by piecemeal. The fragments of which they consisted were put together as force or accident determined. Not representing the public will, the people were at a loss to discover the title which their rulers arrogated to themselves. There was no way of solving the difficulty but by having recourse to an authority from above. Hence the doctrine of the "jure divino" right of kings to rule. The minds of men were then filled with all sorts of superstition, and the prince, whose privileges flow from so exalted a source, seems alone entitled to place a construction upon them. Elizabeth told the English commons that they must not dare to meddle with state affairs; and Charles XII, of Sweden, told the senate that he would send his boot to govern them. Constitutional government has effected the same revolution in politics, which the progress of physical science has produced in religion. Both have banished superstition; the one from the domain of government, the other from that of religion. The human mind can no more get back to the notion of the divine right of kings, than it can get back to fetichism and idolatry.

A popular constitution is necessarily a restraint upon the majority so that that form of government which it has been supposed would be most exposed to the inroads of licentiousness, is the one which is most strongly secured against them. For as a written constitution is obliged to contain an exact distribution of the powers of the various departments, the persons who fill those places cannot separate themselves from the rule which created them, and say, because they are temporarily and for certain purposes the majority, that therefore they are the majority for all purposes and for all time to come. Do as we will, the moment we establish a popular constitution, we are compelled to afford a substantial security to the minority against the majority. It could not be a popular constitution, unless it contained provisions for securing the rights of all classes, without reference to the fact whether either shall afterward fall into the party of the majority, or into that of the minority. And although it is plain that it is physically possible to overleap the bounds set up by the constitution, yet so firm is the hold which this solemn covenant has upon the minds of every one, that the most ambitious and unprincipled men recoil from the attempt. When this has become the settled habit of thinking among the people, their feelings and imagination come in aid of their convictions of right. The constitution becomes a memorable record ; and the fancy clothes it with additional solemnity. If the altar and the throne become objects of veneration in monarchical government, the altar and the constitution become objects of equal veneration in a republic. In those rare instances, when attempts have been made by the state legislatures in America to violate their constitutions, there has been a redeeming virtue among the people, which has either compelled the majority to retrace their steps, or, by converting the minority into the majority, has brought the constitution back to its pristine spirit.

If there were no such instrument, parties would do very much what the exigencies of the moment dictated. For how would it be possible to argue upon the constitutionality of any measure, when there was no constitution in existence. The alarm may be given of a contemplated violation of some fundamental right; but how can the people be made to understand this. A written constitution affords the only plain test. Some of its provisions may be the subject of dispute, but in the great majority of instances, it will be a clear and most important guide in judging the actions of all the public functionaries.

The express, and the implied powers in a written constitution, are sometimes identical. This is a distinction which deserves great consideration, for from it very important consequences follow. The express powers are identical with the implied, whenever the former would be unmeaning and inoperative, unless laws were subsequently passed to carry them into effect. Without the aid of these laws, which are referred to the head of implied powers, the express powers would be a nullity. This is evident from the 8th section of the 1st article of the constitution of the United States. All the powers therein delegated to the legislature, are express powers, and yet not one can be exercised without passing laws. It is different with regard to the powers which are conferred upon the executive. These, for the most part, may be executed without the intervention of any laws. This is evident from the 2d and 3d sections of the 2d article. Some, perhaps all, the powers there enumerated, may be modified by the legislature. For instance, the power of removal from office may be forbidden under certain conditions; but they are all substantially exercisable, without any acts of legislation. This is the these powers also may be modified by the legislature, while the most important part of them execute themselves, and render it unnecessary to resort to any implied powers. This important difference between the legislative, and the other two departments, contributes greatly to enlarge the powers of the former, as the field within which the implied powers may be exercised is never precisely determined. On the other hand, there is this compensation for reducing to the case, also, with the powers conferred upon the judiciary. Some of character of implied powers, all those which are wielded by the legislature, that those which are possessed by the executive and judiciary, being complete without the intervention of any laws, these two departments are protected against the assaults of the legislature. If, then, it were possible to reduce to the character of express powers, all those which are conferred upon the legislative, in analogy with those conferred upon the executive and judiciary, a very important step would be made towards improving the whole structure of government. That this may be effected to a great extent, cannot be doubted. A very important movement has been lately made in this direction by some of the American states. It is no objection that it will render constitutions a little more voluminous. A constitution is faulty, when, by going into detail, its provisions are ambiguous. But when the opposite effect, that of greater clearness and precision, is attained, the objection loses its force. If in the federal government, the powers which appertain to the legislature are all of the character of implied powers, this is true, in a still higher sense, in the constitutions of the states. The former does contain an enumeration of the powers which are proper to be exercised by the legislature, although none can be exercised without the aid of the implied powers. But the state constitutions generally, do not even contain this enumeration. They simply create the legislative power, and then leave it free to act as the public exigencies and its own discretion may dictate. The reason of the distinction is obvious. The federal constitution is one of strictly limited powers; limited not merely in respect to the constitution making power, but as regards the state governments. It was necessary, therefore, to make a specification in gross of its powers, in order to separate them from those of the states. But there are powerful reasons, as I shall presently show, why a state constitution should be as well guarded in this particular, as the constitution of the Union.

One use of the veto of the executive is to protect him against the usurpations of the legislature, but another and still higher use is to protect the community against those usurpations. One reason why the executive, although a single individual, may succeed in the exercise of this power, is that he is armed with an extensive patronage. This clothes him with great authority, and enables him, when he acts with fidelity, to rally the sound part of the community. One reason why the veto is generally dropped in the state constitutions, is that it is impossible, even if it were consistent with the genius of free institutions, to create an executive with very extensive patronage: another is, that the states are not so extensive as to foster powerful local interests. Thus, the necessity of the veto is accompanied with a corresponding necessity of strengthening the magistrate who exercises it; and on the other hand, in proportion to its inutility, is the difficulty of rendering it authoritative.

It may be supposed that in an extensive country like the United States, executive patronage would be so great as to enable the chief magistrate to exercise the veto improperly. Doubtless, this will sometimes be the case. In every human institution we always make allowance for occasional aberrations, as we do in the most perfect machinery. But there is an antidote to the evil. Where universal suffrage is established, the amount of patronage, though great as regards the executive, is very small when compared with the number of the electors.

In a limited monarchy, the absolute veto is conferred upon the king, in order to protect him against the usurpations of the legislature, which represents the sovereignty: in other words, he is himself made a branch of the legislative power; for to give him the absolute veto, is to confer upon him legislative power. In a republic, the written constitution guards him against those encroachments, for his powers are clearly defined. But if the powers of the legislature are all of the nature of implied powers, which cannot be defined, it may be necessary to invest him with the qualified veto, the danger of usurpation not being as where there is no enumeration of either the express or implied powers. This would seem to afford an argument for giving the veto to the governor of a state; for as I have observed, the list of implied powers in a state government is vastly more extensive than in the federal, and the danger of encroachments on the community is as great, although there may be little danger of invading the prerogatives of the governor. There are, however, two ways of protecting society against the usurpations of the legislature. One in the manner I have just indicated, the other by circumscribing the authority of the legislature, that is, by inserting limitations in the state constitutions, on the exercise of every power which is intended to be withheld from the legislature, and express grants of every one which is intended to be exercised. There is a marked tendency in this direction in the state constitutions which have lately been framed. The prohibition of contracting a public debt, unless authorized by vote of the people, first inserted in the constitutions of Rhode Island and Iowa, and since in those, of New York and Ohio; the provision that special charters shall not be granted; that the legislature shall not authorize the suspension of specie payments; that the stockholders in a corporation shall be individually responsible, contained in the 8th article of the constitution of New York, and the whole of the 14th section of the 7th article of the same constitution, are remarkable examples. Of the same character are the 4th, 5th, 15th and 16th sections of the 3d article, and the 4th and 11th sections of the 6th article, and most of the provisions in the bill of rights, or 51st article. Indeed, it is remarkable that until recently the restrictions upon the legislative power, for the most part, have been carefully placed in the bill of rights. The great importance of controlling the department by express limitations, did not command public attention. Notwithstanding, however, that the constitution of New York has so far exceeded any other in the precision and comprehensiveness of its restrictions upon the legislature, the veto of the governor is retained. It will probably be retained until experiment has ascertained all the cases in which exact limitations may be imposed. When these are exhausted-when all the implied powers are converted into express powers, it may be dropped.

It would seem then, that the veto is only conferred upon the executive, in consequence of the imperfect character of the limitations imposed upon the legislature. If society can be protected against the predominance of local interests, against the improper exercise of implied powers by express limitations, these will be much more efficacious than the veto. Even in the federal government, what an