which shall be made, according to these rules;
founded, as they profess to be, upon great princi-
ples of truth and justice. The peculiar objects
of the protection and care of government, are
those, therefore, who, without it, would be ex-
posed to wrong and violence. The strong man
armed needs no aid. He can determine for him-
self his own rights, he can defend and enforce
them. It is to the feeble, to the oppressed, that
government is necessary. It is the conviction
of this necessity, which causes men to associate,
to form societies for mutual protection, and to
establish settled governments. Majorities are
strong: they are able to redress their supposed
wrongs, and enforce what they consider their
rights. The restraints of government are felt by
them, and required to control them. The rules
of government—rules which protect the rights of
all—are required for the protection especially of
the humble, the obscure and the impotent—of
those, in other words, who constitute the mino-
rity of a community.
Another view, which has been presented by
the gentleman, of the doctrine of our declaration
of rights, has no foundation in truth. The idea
is, that the people—meaning thereby, a numeri-
cal majority—have the right to control the gov-
ernment, by becoming the actual agents in its
administration, without the intervention of offi-
cers, agents, or trustees, by and through whom
their delegated powers are to be exercised.
If a community of men choose to form such a
government, one, by the terms of which, the
whole mass is to be assembled, on every occa-
sion, for the exercise of the functions of govern-
ment, and in such mass meetings, and such alone,
to decide upon every question which may arise;
doubtless they have the power to do it. But what
I maintain is this:—I maintain that such is not
the spirit nor the letter of our system; neither
countenanced by the declaration of rights, nor
by the Constitution; nor was it thought of by
those who constructed these noble monuments
of political wisdom, nor indeed by any one since
their day..
If the imputed and admitted sovereignty of
the people is to be vindicated in such a case as
the one before us, (the selection of a judicial
department) only by taking into their own hands
(the hands of a majority) the immediate and di-
rect appointment of that department; if (as is
alleged) it be a deprivation in any degree, of
the rights of that sovereignty, to delegate the
power of selection to agents appointed for that
purpose; why is not this sovereignty assailed
and impaired, by delegating to agents the power
to perform any other duty, which the people
themselves can do when assembled in mass?—
The direct and legitimate result of such a theory
is, to require a dissolution of all society into an
absolute, unqualified, unmixed democracy, such
as can exist only in a community composed of
some few families of men. If such a doctrine
be at all tenable, then in short, the people ate
not to elect a judge. No, sir, they—that is, a
majority of the people—must act as judge. If
the people's sovereignty is made to consist, not |
in organizing and forming their own government,
distributing their powers between the different
departments required for its administration; if
to delegate power to agents and officers, whether
that power be to make appointments of other
agents, or to perform any other duty; if this be
to abridge the rightful power of the people—then
the delegation of the power to judge and decide
upon questions, which constantly occupy the
courts, and form the subjects of their ordinary
jurisdiction, is equally—equally—an infringe-
ment of the people's rights. Yes, sir. And then
also are we here, usurping the just rights of the
people. For we, too, are delegated by the peo-
ple to perform at least, in part, a duty very much
more appropriately within the sphere of action
suited to the mass of a community, than the ap-
pointment of a judicial officer, or the exercise of
judicial functions. Such a doctrine would im-
peach every act and measure of the government
not only of Maryland, but of every other State
in this Union; yes, sir, of every civilized gov-
ernment that has ever existed! In all it has
been, and ever will be, found necessary to or-
ganize departments, and to vest them with ap-
propriate administrative powers, executive, leg-
islative and judicial. The American doctrine
is not only that the sovereign power of the peo-
ple is adequate to direct, "regulate," control
this distribution of power; not only that the sov-
ereignty of the people is the fountain of all pow-
er; but that the people have "the sole and exclu-
sive right of regulating it," according to the let-
ter of our well-expressed bill of rights. It is the
government they are to regulate; it is not for
them to execute, (in mass) the duties and offices
created by the government. Government is the
compact, or system agreed upon, or (if you pre-
fer the term) devised by men associated in civil
societies, which, in a country blessed like ours,
with a written Constitution, prescribes certain
organic laws or rules, as fundamental articles of
association; and provides the machinery neces-
sary to execute, and enforce these organic laws,
and such others as may be found essential. The
machinery, without which an administration of
these laws would not be possible, consists of the
various departments, and their incidental details.
The organization must be complete; the machin-
ery must be of a character to operate effectually,
When it is found defective, the sovereign power
—the people—may remodel, may again organize,
again "regulate" the "government;" and having
done so, again leave it to be worked out, in all
its completeness, by the administrative branches
constructed for that purpose, by their agents
and officers. To require the sovereign power—
the people in mass— to perform these duties of
administration, would dispense with the neces-
sity of government altogether. If such a thing
were indeed practicable, all constitutions, all
laws, all formal governments could no longer
exist. If we suppose their existence possible,
they would at least be useless.
The sovereign power of the people would be
embodied whenever action was to be had, and |
