« SebelumnyaLanjutkan »
When we extend our researches back for a period of years, to learn the true history of a government which has for ages been administered on the same principles, we are liable only to make some unimportant mistakes from a change in the language ; we may mistake the meaning of an act or the motives for passing it ; but our government originated in a revolution, important, as it overthrew the authority of the British Government and established our independence, but still more important as a revolution in civil government.
For the first time since the existence of man, we find a people forming a written Constitution of civil government, founded on the great principle, that all power is inherent in the people, and all free governments are founded on their authority. And in the exercise of their primitive sovereignty, the people parcelled out the powers of government, by constituting a Legislative, Executive and Judicial department, limiting the powers of each.
Now can we suppose, that the framers of this Constitution had a very accurate idea of the system which they had formed,--did they all at once become profound Constitutional lawyers ? In all governments which had previously existed, the legislature, the law-making power, had been sovereign, absolute and uncontrollable. Judge Blackstone says, “ Legislation is the greatest act of superiority that can be exercised by one being over another, wherefore it is requisite to the very essence of law, that it be made by the supreme power. Sovereignty and Legislation are, indeed, convertible terms. One cannot subsist without the other.” This constitutional law, this omnipotence of the Legislature, the Colonists brought with them from the mother country, as they brought with them the common Law. And when they constituted the legislature, they considered that its power was necessarily supreme and uncontrollable, and that all constitutional restrictions upon their power were merely directory. No idea was entertained that an act of the legislature, however repugnant to the Constitution, could be adjudged void and set aside by the judiciary, which was considered by all a subordinate department of the government. And these sentiments generally prevailed until after the Constitution of the United States was promulgated. It was then seen that the people of the United States, in the exercise of their sovereignty, had formed a Constitution
binding upon the whole United States, had restricted the powers of the State Legislature, had declared that Constitution to be the supreme law of the land, and had constituted a judicial tribunal to decide all questions arising under that Constitution. After this, it was no longer possible to maintain the political heresy which had so long prevailed. It was now seen that a State Constitution, so far as it was not affected by the Constitution of the United States, was from its very nature, the supreme law of the State, without any declaration to that effect; that all acts of the Leg. islature repugnant to the Constitution were void, and must be set aside by the Judiciary.
That I have given a correct history of constitutional law at that early period, relative to the powers of the Legislature, the reader will be satis. fied by recurring to the Constitution and the proceedings of the Council of Censors. It has been seen, that the second section in the frame of government is in these words—“ the supreme legislative power
shall be vested in a House of Representatives.” Now whatever may be said of the men who framed our first Constitution, it must be supposed that the person who wrote, and those who adopted this section in the Constitution of Pennsylvania, were accustomed to use precise and
appropriate language, and if it be said that the word supreme was a careless expression made use of in this case, because the law-making power had been termed the supreme power, be it so.
It proves that the distinction between the power of the legislature they were constituting, and the power of all prior legislatures, had never occurred to them. If it had occurred to them that they could limit the power of the legislature which they constituted, surely, they would not have conferred on it. supreme power.
In the year 1777, the constitution of NewYork was adopted, by which supreme legislative power was vested in a Senate and House of Representatives. The first Constitution of Massachusetts was not adopted until the year 1780. The following is the first article— the department of legislation shall be formed by two branches, a Senate and House of Representatives.” When the Constitution of New York was revised, the first article was made to read the legislative power of this state shall be vested in a Senate and Assembly.” In the year 1790, the first Constitution of Pennsylvania, was amended, and the first article made to read as follows—“the legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a
Senate and House of Representatives."
may here refer to the last section of our Constitution, by which it is made the duty of the Council of Censors to recommend to the Legislature, the repealing of all such laws as shall appear to them to have been enacted contrary to the principles of the Constitution. It appears by this, that the framers of the Constitution did not perceive that all unconstitutional acts would be void, but they considered that they must remain in full force and effect until repealed. The Council of Censors were authorized to order the Assembly to impeach, as this was not a legislative act, but they were not authorized to order the Assembly to repeal their acts, because they were vested with supreme legislative power. I shall hereaster pay more particular attention to this section and to its practical operation. To close this subject and to satisfy the reader, what was the consiztutional law of that period, I refer to the following extract from the address of the first Council of Censors. After having censured the legislature for passing an act which was a gross violation of the Constitution, the Council thus conclude: “And this chain of adamant would be effectually riyeted, as redress without a dissolution of the