Page:Debates in the Several State Conventions, v5.djvu/374

348 law however unjust, oppressive, or pernicious, that did not come plainly under this description, they would be under the necessity, as judges, to give it a free course. He wished the further use to be made of the judges of giving aid in preventing every improper law. Their aid will be the more valuable, as they are in the habit and practice of considering laws in their true principles and in all their consequences.

Mr. WILSON. The separation of the departments does not require that they should have separate objects, but that they should act separately, though on the same objects. It is necessary that the two branches of the legislature should be separate and distinct, yet they are both to act precisely on the same object.

Mr. GERRY had rather give the executive an absolute negative for its own defence, than thus to blend together the judiciary and executive departments. It will bind them together in an offensive and defensive alliance against the legislature, and render the latter unwilling to enter into a contest with them.

Mr. GOUVERNEUR MORRIS was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws; would it not be very natural for the two latter, after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that, as a security against legislative acts of the former, which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence; or at least to have an opportunity of stating their objections against acts of encroachment? And would any one pretend, that such a right tended to blend and confound powers that ought to be separately exercised? As well might it be said that if three neighbors had three distinct farms, a right in each to defend his farm against his neighbors, tended to blend the farms together.

Mr. GORHAM. All agree that a check on the legislature is necessary. But there are two objections against admitting the judges to share in it, which no observations on the other side seem to obviate. The first is, that the judges ought to carry into the exposition of the laws no prepossessions with regard to them; the second, that, as the judges will outnumber the executive, the revisionary check would be thrown entirely out of the executive hands, and, instead of enabling him to defend himself, would enable the judges to sacrifice him.

Mr. WILSON. The proposition is certainly not liable to all the objections which have been urged against it. According to (Mr. Gerry) it will unite the executive and judiciary in an offensive and defensive alliance against the legislature. According to (Mr. Gorham) it will lead to a subversion of the executive by the judiciary influence. To the first gentleman the answer was obvious—that the