Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-04-02

Special Committee appointed to consider " what
are the just aud proper limits of legislative pow
er under the Constitution, and whether it is ex-
pedient for the two branches to express any opin-
ion concerning the same, submitted the follow
ing report:-
COMMON WEALTH OF MASSACHUSETTS,.
rs SENATE, March, 1857.
The special committee who were directed by an
order of the Senate of March 18Th 1857. to con-
sIder ana report i" what the Just and proper
| limits OF legislative power under the Constitu-
/ ton, and whether it is expedient for the two
! branches to express any opinion concerning he
same, have considered the matter submitted to
them, and respectfully report =
On the seventh day of March current, His Ex.
ceneney the Governor addressed to the Honora-
bic House of Representatives communication.
containing a statement of reasons for withhold
ins his official approval from resolve, entitled
. Resolve to furnish public information to daily
| papers," and, in accordance with the provisions
| of the Constitution, said communication has been
transmitted by the Honorable House to the Sen
/ ate The communication alleges certain obiec-
| tons to the resolve on grounds ofexpedency, an
| inquiry into the validity of which is not within
| scope nj the order under which the committee act
| Whether those reasons alone would have created
sufficient justification for the exercise Of the We
to power, or whether, in accordance with the prin
| ciples stated in previous communication from
the same SOURCE that power Sn0uiu Only De inter-
posed IN cases where the executive entertalns o.
/ Jeciions on constitutional grounds &c the meas
ure presented for his appreciation, it does not fall
within the province Of the committee to inquire,
The views stated in the message of the extent
1 and limits of legislative power, deserve serious
attention. His Excelency informs the Legisla-
ture that the resolve is, in his judgment, d.
rect interference with the legitimate functions of
the executive branch of the government, and
| therein conflicts directly with that provision of
/ ~ ~ 80 Nagl "
clares that thelegislative department shall new
er exercise the executive and Judicial powers, or
! either of them, to the end it may be gov
| eminent of laws and not of men," that 1t GER
tainly must be deemed novel as well as lndefens-
j ible encToachment on the province OF the eXecu-
! tive, to attempt to dictate in what manner pure
| ly executive acts shall be promulgated" that 1t
| is :" direct attempt to usurp power, " an arbl-
| trary, unjust and unconstitutional encroachment
| upon the freedom and privileges of the executive
| department"
Such an expression of opinion from the Gov
ernor Of the Commonwealth deserves the most Sc
rious attention of those to whom it is addressed.
The extent and limits of the power conferred on
the General Court, the persons and subject-mat-
ter over which the authority of law extends,
ought to be clearly understood by every legislator
before undertaking to exercise in any degree the
high trust con6ded to him by his constituents
To obtain such an understanding, the Constitu-
ton, which is the source of that power, should be
ers, the Bill of Rights declares that !" frequent
recurrence to the fundamental principles Of the |
Constitution is absolutely necessary to preserve
the advantages of liberty, and to maintain free
government" and ahat 1.-THE people have right
to require of the law givers and magistrates an
exact AMI constant observance ofthem, in the for
nation and execution of the laws necessary for
the good administration of the Commonwealth"
The language which His Exceltney has been
pleased to address to the Legislature is, as far
Committee ara prpepdpnt
the official intercourse between the two depart
ments of the government Of the Commonwealth.
This, however. is matter which must necessari-
ly be left to the taste and sense Of propriety of
the author Of the communication, and il certainly
would not comport with the dignity Of the Legis-
lature to give to it serious discussion.
But His Excellency denies the right of the
Legislature to prescribe to the g Secretary Of
State and other State officers" the mode in which
they shall promulgale notices designed for the
general information of the people. He likewise
denies the constitutional power of the law-mak
ing branch Of the government to prescribe to him
the mode Of performing duties lie does not
contine this claim OF exemption from the author
ity OF law to those Executive functions, which
specially set forth In the Constitution, but
states, as illustration of his meaning, the is
suing of the proclamation for the Annual Fast,
a duty depending merely upon usage, and which
can hardly be considered an Executive act at all,
unless within the most extended and liberal con-
authority for his proposition in that section of
the Constitution which provides that the legis-
lative department shall never exercise the execu-
tive and judicial powers either of them" 1t
is obvious that the prohibition contained in this
clause extends to all executive and judicial pow
ers, and if this Interpretation Of its meaning is
correct, all executive and Judicial officers of what
ever grade, are entitled to the same freedom from
legislative authority which he claims for himself
If the Legislature cannot direct His Exeelleney
. IN prp ela unatip or pt ip hat JnO
or through what channel the same shall he made
public, they cannot by the same reasoning, give
such directions to deputy sheriff or constable,
or to a Judge clerk of court. We cannot
concur IN this view of the meaning of the Consti-
tuition, which, it seems to US, if carried to its
logical results, would substantially deny the pow
of making laws altogether Every law except
so far as it is voluntarily acquieseed in by the
people, will depend the judicial department
Tor Its lnterpre tatlon, and on the executive de
partment for its enforcement, and must therefore
Of necessity impose new duties and obligations on
those departments. II is essential TO the proper
enforcement of laws, and to making them har-
monious and convenient in their operation that
the same power which enaets them should have
authority 10 prescribe the time and manner in
which they shall be enforced, and the manner in
which the steps necessary for their enforcement
shall be communicated to those on whom they
are to operate. Can it be doubted, that it would
be competent for the Legislature to abolish the
annual Fast altogether, and TO substitute some
new and different time and form of publicly re-
cognizing the dependence of the people of the
State on their Creator ? Can it be rssubted, that
the Legislature may provide through what chan
nels information of such an Institution shall be
communicated to the people, and require the
ecutiye officers of the State to carry such provis-
ions into effect Instances OF the unquestioned
exercise of the power of directing the mode i'll
which executive and Judicial officers shall perform
their duties. are too frequent and familiar to need
citation. Take the most solemn and important
known example of judicial and executive power
the trial, sentence, and execution OF offenders
punishable with DEATH The Legislature, by
standing laws, direct when, where, and by what
court, such offenders shall be tried what number
of jurtices shall be present at the trial
that single justice may receive a plea of
guilty, and, in such case, shall impose sentence
and the form of such sentences that the court
shall furnish the prisoner with list of Jurors and
witnesses; that, in certain cases, the governor
shall forbear to issue his warrant for the execu-
ton of female convicts or, if such warrant shall
have issued, that the Governor shall cause the
execution thereof to be respited; to what person
such warrant shall issue, how the same shall be
authenticated, and, lastly, where and in what
manner execution shall be done. It is needless
to multiply instances. That stated by his Ex
cellency, in his official communication, affords as
good an ILLUSTRATION could be desired of fhe
danger OF the claim therein made. By the law
Of the Commonwealth, the Annual Fast is made
legal holiday. No session of the Legislature for
the transaction Of ordinary business, no session
Of any Court shall then be held; all public offices