They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation.
Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England.
There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority.
This higher authority might be judicial or political, or one which shared both judicial and political functions.
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CHAPTER II
THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE AND EXECUTIVE IN AMERICAN CONSTITUTIONS
From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step.
So far as the United States were concerned, the weakness of the government under the Articles of Confederation had been universally acknowledged and was generally thought to come in part from throwing whatever powers the States had granted, in a mass, into the hands of the Continental Congress. Nevertheless, the Constitution of the United States is not framed upon the principles of a strict tripartite division. It places the executive power in the hands of the President, all the legislative powers which were granted by it in Congress, and the judicial power in certain courts; but it does not follow the earlier State Constitutions in declaring that whatever was vested in either of these three depositaries was and must always be different in kind from that vested in any other of them.
On this point Virginia set the fashion, but the sonorous phrase of the Massachusetts Constitution of 1780 is the most familiar, in its declaration (Part the First, Art. XXX) that "in the government of this commonwealth, the legislative department 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 judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men."[Footnote: The last declaration of purpose was taken from Harrington's Oceana, in which it is said that while a monarchy is an empire of men, "a commonwealth is an empire of laws and not of men." Works, London ed., 35, 42, 224.]