named in the constitution itself. Again the dividing line
between the powers cannot always be precisely defined and, further,
each department in the performance of its own proper functions may
sometimes be obliged to exercise a power strictly pertaining to
another department. All that the maxim requires is that the three
powers should be kept as distinct and separate as possible and have
the government still go on.

It is true we should not fear to question the wisdom of our fathers,
but conclusions they have arrived at in matters of government after
long study, observation, and actual experience should not be
disregarded unless their error can be clearly demonstrated.

CHAPTER VI

THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE
GOVERNMENT. BILLS OF RIGHTS

It should be evident that the division and distribution of
governmental powers among different depositaries will not alone
prevent encroachments by the governing power upon the liberty of the
subject. The executive department in performing only executive
functions can, in the absence of other checks, act oppressively. The
legislative department, especially, without exceeding the legislative
function, can in many ways and in excessive degrees oppress the
individual by unnecessary restrictions of personal liberty, by
unnecessary exactions, by arbitrary discriminations. The theory of
representative government is that the legislature will be a body of
men who will regard themselves as entrusted with important powers to
be exercised deliberately and wisely for the welfare of the whole
commonwealth and not for any one or more classes or interests,--who
will regard themselves not as mere delegates or proxies, but as
representatives, like the directors of a corporation, to form and act
upon their own judgment after investigation and reflection. Experience
has shown, however, that members of the legislature do not always nor
generally act upon that theory. They seem to be inoculated with the
bacillus of irrepressible activity, the desire continually to be
proposing new laws, new restrictions, new exactions. If the laws
enacted prove difficult of enforcement by reason of their interference
with what individuals feel to be their rights, then new and oppressive
methods of enforcement are devised, still further restricting liberty
and equality. I have seen it stated that in the first ten days of the
session of the Massachusetts legislature this pre