Page:Inquiry into the Principles and Policy of the Government of the United States.djvu/235

Rh true, where is the consistency of concluding that one species of legislation ought to be independent of the sovereignty and another responsible to it? If congress had by law declared the common law of England to be in force, the people could by election have enforced a repeal of this law, but a similar law is passed by judges whom the people cannot compel to repeal it.

The treaty miking power is purely executive, or at least the entire natural sovereignty of the country, is excluded from sharing in it. By "natural," I mean the people. State governments are artificial beings, and nearly the whole treaty making power is the creature of these artificial beings. It is not meant to discuss the propriety of making law by treaties, without the assent of the natural sovereignty or its representative, and by a moiety of a legislature, but this mode of legislation is exhibited to illustrate the defectiveness of judicial responsibility to the sovereignty. In this mode, the sections of the government which appoint and try judicial power can make laws. These laws may have great political influence and gradually change our policy: and yet the sections of the government which make them, are only responsible to their own creatures and dependents. Had judges and juries been responsible to the sovereignty, it might more safely have established a species of legislation, in which it does not participate. Treaties may more easily and plausibly extend executive and senatorial power, than the time of service of the English House of Commons was extended; and judicial power might be the instrument for enforcing such laws and subverting our policy. It is as easy to pack laws by means of treaties, as to pack juries by a different executive engine. The question is, whether a judicial power, responsible to the executive branches, which branches have an exclusive right to legislate through treaties, is a sound cheek upon the constitutionality of this species of legislation? Executive power is the universal destroyer of every sovereignty like ours, and our sovereignty invents its natural enemy with an exclusive