Graham's Magazine, Vol. XL, No. 3, March 1852

by Various

At the opening of every great political campaign, we hear a great deal about the privileged classes; the ruffled-shirt and silk-stocking gentry: and sometimes men prattle about the aristocracy of talent, or the aristocracy of wealth—but who ever heard any complaints of our legal aristocracy—an oligarchy rather—for they make all the laws, they expound all the laws, and they hold all the offices worth having—in perpetuity.

And whose fault is it? If the People are such asses, why should they not be saddled and bridled, and ridden in perpetuity? It is their nature. They are prone to class-worship, and to family-worship—to self-depreciation, and to a most incapacitating jealousy of one another. Even in the day of the elder Adams, it was found that the office of a justice of the peace, like that of a legislator, was well-nigh hereditary in New England. Having anointed the father, how could they help anointing the son?—or the daughter’s husband, if the father had no son?

And now, let us look at the consequences. From Aristotle down to the last elementary writer on Government, it has been every where, and at all times, acknowledged, that every possible kind of sway upon earth, between Despotism and Anarchy, may be resolved into three elements of power, differently combined, or combined in different proportions. These elements are: 1. The Legislative, or law-making power; 2. The Judicial, or law-expounding power; and 3. The Executive, or law-enforcing power.

Taken together we have what is called the Sovereign Power. The power of making laws, of saying what they mean, and of carrying them into execution being all that is ever needed for government.

And this, the Sovereign Power, may be concentrated in one person, whence we have the Czar, the Sultan, or the Autocrat; or it may be confined to a few—as in Sparta, or Genoa, or Venice, or Poland—constituting either an Aristocracy or an Oligarchy; or it may be distributed among the people equally, as at Rome or Athens at particular periods of their history, when they were a tumultuous unmanageable Democracy: or unequally, as in England, or in these United States, thereby constituting a Limited Monarchy, or a Representative Republic, pretending to a balance, by the help of a King or President, a House of Lords, or a Senate, and a House of Commons or a House of Representatives, and a Judiciary, more or less dependent upon the Executive.

Of all these different systems the worst by far is an Oligarchy—or the government of a privileged few—no matter whether elective and shifting, or permanent, provided that, as a body or estate, they are allowed by common consent to make the laws—to expound the laws—and to carry the laws into execution, by holding all the offices worth having, from that of the monarch or president, down to that of a clerk or sergeant-at-arms.

True it is, that by no human contrivance can the three elements of power above mentioned, be kept entirely separate—for they will run into each other—as where the Supreme Executive is allowed a veto, or required to sanction a law: and where the Senate, as a branch of the Supreme Legislative power, intermeddles with the appointing power of the Executive under the name of confirmation; and where the Supreme Judiciary, after being appointed by the Executive and confirmed by the Senate, are made dependent upon that other branch of the Supreme Legislative power for the payment of their salaries—the House originating all money bills and voting supplies—turn about, in their capacity of Supreme Judges, and are allowed to unsettle, if they please, by their interpretation, whatever the Supreme Legislative power may choose to enact for law.

But although these three elements can never be wholly separated—it does not follow that men, who desire to be well-governed, should not try to separate them and to keep them separated as far as they can. Still less, that because they cannot be wholly separated, they shall therefore be encouraged to run together and to crystalize into a mischief that may never be resolved again but by the process of decomposition.

And now, I contend that, in effect, We, the People of these United States, are governed by an Oligarchy; and that, by being allowed to choose our own masters—provided we choose them, or at least, a large majority of them, out of a particular class—we are blinded to the inevitable consequences: till we mistake words for things, and shadows for substances: and that our mistake is all the more dangerous and alarming that we cannot be persuaded to treat the matter seriously.

I contend, moreover, that, inasmuch as the Lawyers of our land make all the laws; and as Judges expound all the laws, and as office-holders carry all the laws into execution, therefore they constitute of themselves the Sovereign Power.