75 Pa. 59 | Pa. | 1874
The opinion of the court was delivered, November 2d 1874, by
The change made by the people in their political
It was contended in the case of Francis Wells et al. v. James Bain et al., involving the legality of an ordinance of the convention, argued at Philadelphia in December last (antea p. 39), that the convention had the power to ordain ordinances having the present force of law; and the instant power to proclaim a constitution, binding without ratification, irrespective of the matter adopted by the people, to exercise their right to alter or amend their frame of government. This imputed sovereignty in a convention called and organized under a law, as the very means 'adopted by the people to exercise their reserved right of amendment, owing to the briefness of the time, was not discussed in that case with the fulness the importance of the question to the people demanded.
There is no subject more momentous or deeply interesting to the people of this state than an assumption of absolute power by their servants. The claim of a body of mere deputies to exercise all their sovereignty, absolutely, instantly, and without ratification, is so full of peril to a free people, living under their own instituted government, and a well matured bill of rights, Abe bulwark and security of their liberties, that they will pause before they allow the claim and inquire how they delegated this fearful power and how they are thus absolutely bound and can be controlled by persons appointed to a special service. Struck by the danger, and prompted by self-interest, they will at once distinguish between their own rights and the powers they commit to others. These rights it is, the judiciary is called in to maintain. The very rights of the people and freedom itself demand, therefore, that no such absolute power shall be imputed to the mere delegates of the people to perform the special service of amendment, unless it is clearly expressed, or as clearly implied, in the manner chosen by the people to communicate their authority.
A convention has no inherent rights; it exercises powers only., Delegated power defines itself. To be delegated it must come in!
To impute absolute power to a convention of mere delegates, from a vote on the simple question of calling it, as for example under the Act of 1871, is to assume a grant by the people without terms, without the means of limitation, and without any clearly evinced intent. It is an assumption without a just basis against the security, the interest and the welfare of the people, which no body of men have a right to make, and no judicial reason or rule can justify. It contravenes the rightful and necessary prerogative of the people to determine their own institutions by ratification or rejection, and in this respect contravenes the very language and spirit of the bill of rights by which they reserved to themselves the right to change their form of government. It also conflicts with
The people have the same right to limit the powers of their delegates that they have to bound the power of their representatives. Each are representatives, but only in a different sphere. It is simply evasive to affirm that the legislature cannot limit the right .of the people to alter or reform their government. Certainly it cannot. The question is not upon the power of the legislature to restrain the people, but upon the right of the people, by the instrumentality of the law, to limit their delegates. Law is the
To argue a want of authority in the law from the alleged character of those who passed -it is bad logic, and an undeserved reproach, in view of the liberality of the subsequent Act of 1872, which opened a wide door to men of all parties, and filled the convention with the best men in the state. When it is conceded that a convention can be called and organized by law, the number and qualifications of the delegates prescribed, their districts defined, their mode of selection or appointment determined, their time and place of meeting fixed, and their compensation declared by law, the binding force of law must be conceded. The convention was a creation of law, and its members the offspring of law — fifty by the mere force of law, without a popular election. How, then, can the power of law be denied ? Without it no delegates had existed, and no power had been transmitted to them. It is a solecism and a fallacy to assert that a law has the power to transmit the authority of the people, and yet is a nullity in the terms of its transmission. If the authority of the people passes to the convention outside of the law, the people are left without the means of self-protection, except by revolution. Then the singular spectacle is presented of the absolute sovereignty of the people being vested in a body of agents without any known means of transmission or of limitation. But clearly this cannot be when the fundamental rights of the people are at stake. To estop them from their right to accept or reject the work of the convention, there must be an evident channel pointed out through which their power passed to the convention to ordain at pleasure a constitution or binding ordinances. The force of the argument cannot be avoided by reference to the well-known purity of character of the delegates. The personnel of the convention has nothing to do with the question of delegated power. It may help to suppress an inquiry into the power, but, however presently popular the doctrine of self-imputed sovereignty may be to those whose integrity forbids intentional wrong, as a question of power the doctrine is unfounded in prin-. ciple, repugnant to right reason, incompatible with safety, dangerous to liberty, and unsuited to times of agitation and excitement which sometimes overcome the people.
No argument for the implied power of absolute sovereignty in a convention can be drawn from revolutionary times, when necessity begets a new government. Governments thus accepted and ratified by silent submission afford no precedents for the power of a convention in a time of profound tranquillity, and for a people living under self-established, safe institutions. While conventions are well-known historical modes of procedure in the formation of constitutions, they prove nothing; for history does not define their powers or estop the people from asserting their own. There can
Nor is the improbability of a wrong use, or an abuse of power, a sound argument in the light of our own knowledge. We have seen a public sentiment formed and elections carried in a few months, and yet the subject of excitement was as short-lived as it was sudden. Men have been proscribed for religion’s sake and for a foreign birth. Moving like a whirlwind, such excitements have filled a legislature with its partisans. In our day, conventions, imputing sovereignty to themselves, have ordained secession, dragged states into rebellion against the well-known wishes of their quiet people, and erected in the midst of the nation alien state governments and a Southern Confederacy. The negro is now a citizen and an elector, and yet the time is not long gone by since the word “ white ” was voted by a former convention into the article on elections. Who can foretell the next subject of agitation ? The times abound in contests. Labor and capital are in strife. Agriculture wars on transportation. Communism, internationalism, and other forms of agitation excite the world. Let conventions in such seasons possess, by mere imputation, all the powers of the people, and what security is there for their fundamental rights ? Not the bill of rights, nor even the particular sentiment that brings the convention into existence. Once assembled, a convention, according to this dogma, is all powerful, and may annul any declaration in the bill of rights, and proclaim a constitution without let or hindrance. Who will predict what effects may be produced by combinations foreign to the purpose which actuated the call ? The fundamental rights of the people, the true principles of civil liberty, the nature of delegated power, and the liability of the people to temporary commotion, all rise up in earnest protest against such a doctrine of imputed sovereignty in the mere servants of the people.
Then look at the constitution of the body to which this power may be imputed. The number may be any designated in the law, 133, thirty-three or three times three. The delegates may not be chosen by the whole people, but by portions of the people of one party, as under' the Act of 1872. On what principle of sound reason or logical deduction does such a body possess, by mere imputation, all the powers of the people, not conferred on them by law ? They possess them by no act of the people independently of law. And certainly there is no popular afflatus outside of the law to breathe into them the spirit of prophecy in the name of the people.
In conclusion, we find nothing in the Bill of Rights, in the vote
Decree affirmed.