Constitutional history -- United States -- Sources; Constitutional law -- United States
should be so divided and balanced among several bodies of magistracy,
as that no one could transcend their legal limits, without being
effectually checked and restrained by the others.
For this reason, that convention which passed the ordinance of
government, laid its foundation on this basis, that the legislative,
executive, and judiciary departments should be separate and distinct,
so that no person should exercise the powers of more than one of them
at the same time. BUT NO BARRIER WAS PROVIDED BETWEEN THESE SEVERAL
POWERS. The judiciary and the executive members were left dependent on
the legislative for their subsistence in office, and some of them for
their continuance in it. If, therefore, the legislature assumes
executive and judiciary powers, no opposition is likely to be made;
nor, if made, can be effectual; because in that case they may put their
proceedings into the form of acts of Assembly, which will render them
obligatory on the other branches. They have accordingly, IN MANY
instances, DECIDED RIGHTS which should have been left to JUDICIARY
CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE WHOLE TIME
OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR. “The other State
which I shall take for an example is Pennsylvania; and the other
authority, the Council of Censors, which assembled in the years 1783
and 1784. A part of the duty of this body, as marked out by the
constitution, was “to inquire whether the constitution had been
preserved inviolate in every part; and whether the legislative and
executive branches of government had performed their duty as guardians
of the people, or assumed to themselves, or exercised, other or greater
powers than they are entitled to by the constitution. “ In the
execution of this trust, the council were necessarily led to a
comparison of both the legislative and executive proceedings, with the
constitutional powers of these departments; and from the facts
enumerated, and to the truth of most of which both sides in the council
subscribed, it appears that the constitution had been flagrantly
violated by the legislature in a variety of important instances. A
great number of laws had been passed, violating, without any apparent
necessity, the rule requiring that all bills of a public nature shall
be previously printed for the consideration of the people; although
this is one of the precautions chiefly relied on by the constitution
against improper acts of legislature. The constitutional trial by jury
had been violated, and powers assumed which had not been delegated by
the constitution.
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