Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1855-05-31
COMMONWEALTH OF MASSACHUSETTS,
ATTORNEY GENERALS OFFIcE,
New Bedford, May 10, 1855. (

To His ETeeiIeney Henry j. Gardiner:
Sir :-In consequence of my absence from
home, in attendance upon the Supreme Court,
your Excellency's note of the 10Th inst, ac-
companying copy of bill pending before
the Legislature, entitled "An act TO protect the
Rights and Liberties of the People of this Com
monwealth,'' has only just reached me.
I'm reply tn the request contained in it, that
will advise you officially if any of the pro-
visions of this bill are. in my judgment, uncon-
stitutional," can only give the general result
of my examination of it, as an extended state
ment of the grounds of my opinion would ne
cessarily postpone a communication beyond this
days mail, and it would consequently not
reach you until after the probable termina.
ton of the session.
| must content myself, therefore, with ex-
pressing in this communication the opinion
which entertain, that this bill is obnoxious to
very grave objections in many particulars, and
is repugnant TO the provisions of the Constltu-
tion of the United States.
Its inevitable tendency and effect is to bring
the Courts Of the United States and their off
GERS into an rrcconcilable conflict with those OF
the Commonw ealth; and it is virtual denial
of the constitutional obligation which rests
upon the Commonwealth, its officers and citi-
zens, 10 recognize the Constitution of the United
States, and all laws made in pursuance thereof
as the supreme laws of the land
In my Judgment. the bill is also exceptions
bic in some of its provisions, as being beyond
the constitutional competency of the Legisla-
ture, under the provisions of the Constitution
of the Commonwealth.
1t attempts to cOnstrue and declare the true
intent and meaning of the provision of the con-
stitution, which subjects judicial officers To re-
moval by the Executive, upon address by both
branches of the Legislature, and to declare the
meaning of the Revised Statutes relating to the
writ of habeas corpus.
In these respectslit seems to me to be pal
pable violation of that provision of the Consti-
tuition of Massachusetts that "the Legislative
Department shall never exercise the executive
and judicial powers, or either of them, the in
depreciation of the Constitution and laws being
clearly judicial and not a Legislative power.
The general views of this proposed enact
ment, which / regret / have not time 10 de-
velope, as they are susceptible of being devel-
oped, into an argument upon the specific pro-
positions of the bill, are sufficient to constrain
me to say in reply to your Excellency's in
quiry. that in my judgment, the bill is in viola
ton of the Constitution.
| am, very respectfully,
Your obedient servant,
JOHN H. CLIFFORD,
Attorney General
Note-On the 10Th May / transmitted to the
Hon. Attorney General the printed bill as origi-
nally reported, and on the 18th, i sent the
amendment adopted, which left the bill in the
shape it now is This "opinion" must be pre-
Dictated the present form of the bill, as it will
be noticed he specifically refers to one of those
amendments as unconstitutional.
HENRY j. GARDNER