The Elements of Moral Science (1835, 1856 ed.)

Francis Wayland

BOOK 2, PART 2, DIVISION 1, CLASS 3, CHAPTER 3

Duties of the Officers of a Government

FROM what has been said, the duties of the officers of a government may be stated in a few words.

It will be remembered that a government derives its authority from society, of which it is the agent; that society derives its authority from the compact formed by individuals; that society, and the relations between society and individuals, are the ordinance of God: of course the officer of a government, as the organ of society, is bound is such by the law of God, and is under obligation to perform the duties of his office in obedience to this law. And, hence, it makes no difference how the other party to the contract may execute their engagements; he, as the servant of God, set apart for this very thing, is bound, nevertheless, to act precisely according to the principles by which God has declared that this relation should be governed.

The officers of a government are Legislative, Judicial, and Executive.

I. Of Legislative Officers.

1. It is the duty of a legislator to understand the social principles of man, the nature of the relation which subsists between the individual and society, and the mutual obligations of each. By these are his power and his obligations limited; and, unless he thus inform himself, he can never know respecting any act, whether it be just, or whether it be oppressive. Without such knowledge, he can never act with a clear conscience.

2. It is the duty of a legislator to understand the precise nature of the compact which binds together the particular society for which he legislates. This involves the general conditions of the social compact, and something more. It generally specifies conditions which the former does not contain and, besides, establishes the limit of the powers of the several branches of the government. He who enters upon the duties of a legislator, without such knowledge, is not only wicked, but contemptible. He is the worst of all empirics; he offers to prescribe for a malady, and knows not whether the medicine he uses be a remedy or a poison. The injury which he inflicts is not on an individual, but on an entire community. There is probably no method min which mischief is done so recklessly, and on so large a scale, as by ignorant, and thoughtless, and wicked legislation. Were these plain considerations duly weighed, there would be somewhat fewer candidates for legislative office, and a somewhat greater deliberation on the part of the people in selecting them.

3. Having made himself acquainted with his powers and his obligations, he is bound to exert his power precisely within the limits by which it is restricted, and for the purposes for which it was conferred, to the best of his knowledge and ability, and for the best good of the whole society. He is bound impartially to carry into effect the principles of the general and the particular compact, just in those respects in which the carrying them into effect is committed to him. For the action of others he is not responsible, unless he has been made so responsible. He is not the organ of a section, or of a district, much less of a party, but of the society at large. And he who use. his power for the benefit of a section, or of a party, is false to his duty, to his country, and to his God. He is engraving his name on the adamantine pillar of his country’s history to be gazed upon for ever as an object of universal detestation.

4. It is his duty to leave every thing else undone. From no plea of present necessity, or of peculiar circumstances, may he overstep the limits of his constitutional power, either in the act itself, or the purpose for which the act is done. The moment he does this, he is a tyrant. Precisely the power committed to him exists, and no other. If he may exercise one power not delegated, he may exercise another, and he may exercise all; thus, on principle, he assumes himself to be the fountain of power; restraint upon encroachment ceases, and all liberty is henceforth at an end. If the powers of a legislator are insufficient to accomplish the purposes of society, inconveniences will arise. It is better that these should be endured until the necessity of some modification be made apparent, than to remedy them on principles which destroy all liberty, and thus remove one inconvenience by taking away the possibility of ever removing another.

II. Of Judicial Officers.

1. The judicial officer forms an independent branch of the government, or a separate and distinct agent, for executing a particular part of the contract which society has made with the individual. As I have said before, it matters not how he is appointed: as soon as he is appointed, he is the agent of society, and of society alone.

The judge, precisely in the same manner as the legislator, is bound by the principles of the social contract; and by those of the particular civil compact of the society in whose behalf he acts. This is the limit of his authority; and it is on his own responsibility, if he transcend it.

2. The provisions of this compact, as they are embodied in laws, he is bound to enforce.

And hence we see the relation in which the judge stands to the legislator. Both are equally limited by the principles of the original compact. The acts of both are valid, in so far as they are authorized by that compact. Hence, if the legislator violate his trust, and enact laws at variance with the constitution, the judge is bound not to enforce them. The fact, that the one has violated the constitution, imposes upon the other no obligation to do the same. Thus the judge, inasmuch as he is obliged to decide upon the constitutionality of a law before he enforces it, becomes accidentally, but in fact, a coordinate power, without whose concurrence the law cannot go into effect.

Hence we see that the duty of a judge is to understand the principles of that contract from which he derives his power.

2. The laws of the community, whose agent he is;

3. To explain these laws without fear, favor, or affection; and to show their bearing upon each individual case, without bias, either towards the individual, or towards society; and,

4. To pronounce the decision of the law, according to its true intent.

5. As the jury are a part of the judicial agents of the government, they are bound in the same manner to decide upon the facts, according to their best knowledge and ability, with scrupulous and impartial integrity.

III. Of Executive Officers.

The executive office is either simple or complex.

1. Simple; as where his only duty is, to perform what either the legislative or judicial branches of the government have ordered to be done.

Such is the case with sheriffs, military officers, etc.

Here the officer has no right to question the goodness or wisdom of the law; since for these he is not responsible. His only duty is to execute it, so long as he retains his office. If he believe the action required of him to be morally wrong, or at variance with the constitution, he should resign. He has no right to hold the office, and refuse to perform the duties which others have been empowered to require of him.

2. Complex; where legislative and executive duties are imposed upon the same person; as where the chief magistrate is allowed a vote, on all acts of the other branches of the legislature.

As far as his duties are legislative, he is bound by the same principles as any other legislator.

Sometimes his power is limited to a vote on mere constitutional questions; and at others, it extends to all questions whatsoever. Sometimes his assent is absolutely necessary to the passage of all bills; at others, it is only conditionally necessary, that is, the other branches may, under certain circumstances, enact laws without it.

When this legislative power of the executive has been exerted within its constitutional limits, he becomes merely an executive officer. He has no other deliberative power than that conferred upon him by the constitution. He is under the same obligations as any other executive officer, to execute the law, unless it seem to him a violation of moral or constitutional obligation. In that case it is his duty to resign. He has no more right than any other man, to hold the office, while he is, from any reason whatever, unable to discharge the duties which the office imposes upon him. That executive officer is guilty of gross perversion of official and moral obligation, who, after the decision of the legislative or judicial branch of a government has been obtained, suffers his own personal views to influence him in the discharge of his duty. The exhibition of such a disposition is a manifest indication of an entire disqualification for office. It shows that a man is either destitute of the ability to comprehend the nature of his station, or fatally wanting in that self-government, so indispensably necessary to him who is called to preside over important business.

And not only is an executive officer bound to exert no other power than that committed to him; he is also bound to exert that power for no other purposes than those for which it was committed. A power may be conferred for the public good; but this by no means authorizes a man to use it for the gratification of individual love or hatred; much less for the sake of building up one political party, or of crushing another. Political corruption is in no respect the less wicked, because it is so common. Dishonesty is no better policy in the affairs of state than in any other affairs; though men may persuade themselves and others to the contrary.