Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1880-01-16
From the Boston Advertiser
The Maine JSurpatiOn-The hem'
edy in the Courts.


button of powers under the constitution give
stability TO the republican system Inc mo
ment it Is granted that any department. can
go beyond its powers. and that there Il no
ultimate lawful authority 10 restrain them,
tina, moment there is an end Of the repabile-
But our forefathers ere wise in their genef
alton. They did not delegate all powers 10 a
king alone. nor TO one house alone. nor TO the
judiciary alone: bur they made each depart
ment supreme in lis place under the constitu-
ton. By keeping these powers distinct all Is
clear The legislature can do and enact All
constitutional acts and no more. The gov
eruor can perform all the duties. clerical.
ministerial and otherwise. which the eoa't'
tuition allows. and no more. When the gov
ernor or the legislature oyer-step their
boundaries and undertake 10 say. I'VE VIII
..act contrary TO the constitution, we will
enact unconstitutional laws, we will have Il
Legislature ineligible under the cons'iiu-
.tion." the way is provided for the>ccurt to
saw, You have gone beyond your powers
YOU nave acted Nou!
must return to it
This i. the process The records OF the
towns and the State records also, show thai
certain persons are duly elected. The Gov
ernor, in the performance Of his duty, elther
by mistake or design. sends out certificates
contrary to the record The Supreme Court
decides that the certificates are contrary TO
the record before the certificates take effect
l. this decision 10 90 for nothing. and the
mistake or fraud of the governor for every
thing: l. the legal decision of the Supreme
Court rendered in strict accordance with the
constitution. to be pushed aside, and the lille
gal act of the Governor, performed IN def
ance of the constitution, to be given full
force. The Governor, doubling whether he
had complied with the law, or compelled by
the public will, called upon the Court, as he
was bound to do, TO decide what the law
was. he had power to call. and the Court
was required to answer: and when the an
,wer was given i, was the law and must
have the force of law. The certificates of
the Governor, issued contrary to the record,
were thereby rendered null and void or.
rather, the decision SHOWED that they were no:
certificates of election under the constitution,
but contrary to the constitution. Are not the
parties then, who attempt to act under such
certificates usurpers, acting in defiance OF
even the form of law. known before they were
sworn in by this same Governor, who knew
the illcgaliiy of the act? They also knew it
was the settled decided law of the State. con-
stiiutionallv established bv the tribunal of
las, resort, in answer to call constitutional
ly made upon it.
Now. if this be the fact is not the course
plain: There is an assembly of men pretend
ing TO hold possession of the State house,
and to act il the name ofthe people of the State
contrary to the decision of the courts. and con-
trary to the constitution. The court has pow
cr to enforce the law against all wrong doors.
1t has full power to act, when called upon
by the State authorities in the legal method.
to carry ont the law and enforce the consti-
tuition. That is the duty assigned to the
court i'll the distribution of powers. The leg
stature can pass law, but it must be
constitutional one. Each branch of the leg
stature can decide as to the elections and
qualifications of its members. but it cannot
decide that a person ineligible under the
constitution is elected. Ii he is not consti-
tutionally eligible. the House in which he
claims place has neither the power nor
the right to seat him. The court has decid-
ed that certain persons now acting were not
eligible; and the act Of this pretend
ed legislature in seating them after this de-
cision was made, was unconstitutional and
revolutionary. If the legislature NAV seat
one man under such circumstances it NAV
seat one hundred. and NAV at anv time make
legislature by sheer brute force. aided bv
magistrate who may have no regard for his
oath. The remedy must be in the court.
which has power to decide upon any act ofthe
legislature whether it is constitutional or not.
Now constitutional question of the verv
first Importance has arisen And il de-
clsion must be made. is there no power to
enforce it: Is an unconstitutional act. de-
cided by the proper tribunal to be such. to be
treated As an act under the constitution? If
not. what effect have Governor Garcelon's
certificates ami his swearing in of persons
not elected. to have: Clearly, the whole
proceeding is null and void The whole
thing before it took place had been decided
constltutionally. in a constitutional way. to be
void. How can void act be revived and
made good?