Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/6

134 tioning that the contrary opinion "is very popular and prevalent." "It will be agreed," he says, "it is as probable that the judiciary will declare laws unconstitutional which are not so, as it is that the legislature will exceed their constitutional authority." But he makes the very noticeable admission that there may be cases so monstrous, — e. g., an Act authorizing conviction for crime without evidence, or securing to the legislature their own seats for life, — "so manifestly unconstitutional that it would seem wrong to require the judges to regard it in their decisions." As late as I807 and 1808, judges were impeached by the legislature of Ohio for holding Acts of that body to be void.

II. When at last this power of the judiciary was everywhere established, and added to the other bulwarks of our written con- stitutions, how was the power to be conceived of ? Strictly as a judicial one. The State constitutions had been scrupulous to part off the powers of government into three; and in giving one of them to each department, had sometimnes, with curious explicitness, forbidden it to exerci5e either of the others. The legislative department, said the Massachusetts constitution in 1780, —

"Shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the juidicial shall never exercise the legislativ and executive powers or either of them; to the end, it may be a government of laws, and not of men."

With like emphasis, in 1792, the constitution of Kentucky said:—

"Each of them to be confided to a separate body of magistracy; to wit, those which are legislative to one, those which are executive to an- other, and those which are judiciary to another. No person or collec- tion of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly permitted."

Therefore, since the power now in question was a purely judi- cial one, in the first place, there were many cases where it had no operation. In the case of purely political acts and of the exercise