•.
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~....,..,.. :. ', omit° x i OP TOE AvpugTh-------",. COURT
. ' .. O N THE T EXP ERANCICQUESTION. ••
• we wait almost every thing to day - beyond the ire.
.. , pisearu sess 4 M 'mike Mem for, the elaborate Opinions
',of um Judges of the Colin upon the :weenie (bum.
•.• • The seldeet it Pr sielideep imereet iii the Slate end par
. . tic...laity' tothi commuter:otn nothing or more lia.
pinta:47ml be laid tiefore Om readers. We, there'
i
Lem beseetth Usk OMenn. the lumen°. or all read.
• ..• err They arq Ably di t a b ;insion4 lain command respect. I,
, fil attention al in the ' 'reevaluate.: Me undue and ,
the learning d is played by Um respective Part , n fa the
decision. i •
•
RIO deter? enthooollielmem e d by Jodie Bell.
Parma es Conivionmealfh—Error to the
Court of Qu vi er !lenient,. of Allegheny County. •
The dere nt beim"; plaintiff in error, having
4e
been newt upon ati indiefinent, framed under
the act of 7th April, 2840, entitled "An net: go.
thorizicg the citizens of certain inuotin to decide ;
by ballot Whether the sale of vinous and epiritotts I
liquotm shall he continued in 'said cottons" • the I
poirit is raised in this Court whether the Act ii,
in tatth, a law of binding force] •
; -Itleto be regretted that this very grave comb.
' .. tutional enquiry, a. it is'presented to us, ir inter
. woven with a question l'of public Morals which has
- mined the - hearts and occupied the minds of the
Amerthen people with ouch intensity of feeling, in
• to male it difficult to consider any proposition,
' . even accidentally conneetal with it, in reference
to its abstract merits.llollo.. do approaching the ;
. - dine/slob 'of such a propnition, the mind is al-
• • ` Most ineoluntatil;' drawn to contemplate the ante.
• : ...AfeeltiOn which .alto philanthropy, has, within
• ' . •• a few - years, effected in the metal habits of our
widely ;spread nmmunity,' and the enquirer. Is I
. . tempted to shrink from the discharge of a task
• 'lmposed by the deepest mese of duty, testate re.
auk of Ma investigations might, even incidentally,
. • cheek the•growth of private and public improve
, inent: But though lho point presented for deet•
sion is highly important, cenaiderad
alluded
in its
- ' l ,' • • connection with the subjec t I hive alluded to, it
•• .. . ' bennies of infinitely groat' tnagedlude when it is
regarded se - •;spontion. in political •pbticuophi.
springing fond the peculiar nee of our modes of
. gamma:neat. ;In this tepee ,it is; intimately arse.
-' -- ' elated with; th is-Factiest operation open society of
the. written One:Motion, Mot only •of this Com.
:monweeldsbut of any other. Stateof the Cooled
- - enter. Re a ching far beyond any Single subject
• ... of Jegislatiou, it embraces the whole range of to.
..- . pin that May fall under legislative cugnixence. •
• ' ,'; ' and, an it may be decided, restrains or imerieenr.
: ..,,'• • ably enlarges the manner in which the legislative
, ' •
~ :power my. beige:cited.. Stich is the nature and
• -: , , scope of Mai subject to which our attention his
: • been invoked. • Regarding it is when the most
, .
. impotent peer presented for 'adjedicanon here, in. •
;; • . , solving- principles that address themselves with
great wimpy to the intermix of every member ef •
; . • ,
~ ' middy, we have considered it under a lively sense
:.; • ---oe,the responsibility which, even in ordinary 'ln. •
stances attaches upon an enquiry into the Con.!
•;' ' - atittitional salon of the legislative body, but which ;
; ',_:.• I. largely increseeil by the character and possible
-. , results of the present inthetigation. • I
I', . : Mitre that of the United. Slates, the govern- 1
;; • men of Pennylvenia is not one of enumerated
;: .
,:,powers. Hull it it 'a government of limited an.
'', • amity, and it is, therefore, not to be denied Rim
~ ;
the Wien of its legistattire may be invalid, though •
;1 ' . • lt eentrevene ou t come. proviiion of the Cn
oti-
tnnorsil it be in l violation of the spirit of that in-
• 1 , ointment, and the genius of the public institutions
.-.
1 • , • .designed to be ley it. Indeed, it is tenni, ;
_ _•;• gees of insidious infractionthat is more to be feared
' :.:: • and goaded against than direct attacks upon any
.-". ••. . particular pi - lee/ph, proclaimed es • pan of the
. . . primordial law fir attempts of tho latter deerrip
- tion will, generilly,ho met by instant reprobation,
,'• while the stealthy Mid frequently seductive char
- • actor of the former le ept to escape detection, or.-
tel the innovation ii made manifest by the Mei.
• • • • , . Pon of some startling wrong. 'Putting out ot
•. • • • view, as far an possible, the particular olject of
• -, the act • whicli•givea rise to the controverey, lest
: . • .we be misled by the meritorious nature of its
aim, and addrevainil ourselves to the reaming
,which must he epee cable to ell SOWN/ in•
~... • .• stan c e. of legislative action. we will enquire wheth.
• 'er there has been i des au encroachment upon the
. .Conditution of the tate and tbo admirable petit.
• , 'sal system created it/ass collo for the interpro
•, • - 's - ertion of Mie Cour In doing AO we are noes.
eerily. led - into an amination of the strumutosef
• - oar systems of civil polity and goverernent, and
-• ~• the otos-and obje.gt f the eminent men who were 1
. . charged with tbeli portant tack of giving them a •
• . visible and distinction shape.
,
, - The either: peg of our Colonial history show •
; • net from tbo begin' ing, the principle. of civil and
„,
-•.-. political liberty war understood and practiced by
•-` ' . thou who planted e germ of civilized society in
' •' ' '' 'this country: It lei ev - theratituoistedging elle.. '
. • glance-to shlonirch and eubeervience to a fir.'._
•.., • ,- eign parliament, to vi ich they conceded the jars
... _ . suntrii imperil, the supreme, immutable one al e i
, solute authority which, as it in arid, must ,mice
somewhere in every State, they did not formally
' - claim as true the axiom that nil priwer emanates 1
from the people. But, practically, for all the per
• •
poems a internal role • this principle wee to a greet
extent acted upon. The firm of, govern:nett in
- 's thefedveralcoionies,ecry won resolved itseffietothr
, - :lineal of 'legishitiou by agents eche. dby the
people, to show a liberal right of Suffrage was ac
corded, • and thus our early political institutions,
almost everywhere, assumed the resemblanc e of e
• ..,.. .-
representative democracy. The American limo.
, -
lotion introduced a new feature into the science of
government, before speculated upon by theorists.
but then, for the fart time, formally and soletretty
announced as constituting an important element
in the political constitution of n Nation. It is,
. • ' bathe language of our own bill of righte,' in thi s
respect hot an echo of prior declarations. that ' all
/! power is inherent in'the.people, and all free goy
ernments are . founded on their aullteritymod inn'-
,
_ toted for their peace, sotto:and happiness.' nut
!,',..• '',: though it has thus proclaimed that the sovereign
•', I. . power resided in the bed, of the people, and that
•,' the only legitimate end of Government ie the pro.
' - motion of their welfare, the utter impnicticability .
• • of a pereonal and immediateezercise of thie pours'
er, by - them in the administratiOri of the affairs of
' 4 • . government„ forbid the idea of al l pure democracy.,
If such a form of civil rule can ern in a civilized
. • community, it am be, as is welli'observed by an
. seine writer en thin subject, when the limith of a
',,,fitito are so confined ,hut the pedple can assemble
; as ofteri as may be requisite for the milministration
i of he public eancernd from every port of the dente,
•
-
.•''' blli mach a State mine hays no small population to
prone t iteelf sigehost the beetiladeeigne and attack,
ofipowerful or ambitious neighboel,fietoo email n
1 ternary to support the number of poi inhabitant.,
either of which eircuitotaticrs iiiirst nntidually
..• endanger its safety and independence, Our widely
• . • extended country and numerous Imputation con.
~ tend even in the'euly flays of the republic, to
i pail this simple form of administration out of the
. - qdkion. Bat had them reasons been wanting
ether impotent 'objections would have interposed
- toprohibit the immediate exercise of edminione.
Reit authority by the Meet or the.community acting
dirsctly en the'etabjecL Among these may be men.
, tined the neceitimily nneerisin & flu etuatiag char.
act& of Peputse'dividons.' Indeed by the excitement
1 ,- of eidliaion & & often by unreasoning pusion pre.
•dI the • I ''' • •
' i j el ee. me ent tommationsto which polittlar air.
- , leemblies are unstantly eipmed, especially when
I. acting under it itifluence of party zeal, inflamed
by the oedema iof factions eloquence and aunt!
- ' sophistry. the difficulty. If n?t inipenbility, of de.
liberation and consultation. and above all, the im.
minim danger hat, in the absence of a - sense of
resiMuMbility, the surest guarantee of ;Mehl jog.
.., ~ .. flee, the rights t f the minority would be disregar.
end by a majority seeking only the gratification of
• , its oWn detainee Or the advancement of its peculiar
..I opinions. In dlieeming proposed "chrome of goy.
• . ernment, those l okjections lied not escapedilthe
paddle attention, 'of which' the public debate. of
that day Vea ample evidence. In „proof of this
• ",, it may be ;sufficient to quote fthm -Mr. Madiaon.
wean enlightened pred&mion for popular inn.
*Mina will not be, questioned.- In the name or
Ibex debates on th at Pederil Constitution, in the
Virginia Ge' crention, he remarked; "that turbot.
. • lenix,lvielenadind abuse of power by the major.
•• ty trampling an' the rights of-the minority, have
prtsduited &alone and emninotions, end these in
.republues, more fiequeatti than any other cause,
. have 'produced despotism.". And again he ob.
- Nerved, "if we go into the whale history of ancient
—tend modern republic', we shell find their deetruc. ,
• tin lai have generally resulted from these causes.
,1, :If we Consider the peculiar situation of the United
/Mates and go ca the sources of that diversity of i
'sentiment which pervades its inhabitants, we shall 1
• find mat danger to fear that the some amen here,;
would rasultlu the gime fatal effects, what they l '
r produced in Ibone republics." This we, but an '
expression Alf the :prevailing sentiment. In accor
dance with it, thoogh all the written Coonitettion"
. framed, by the several Slates of the Confederacy
aeknotitedged the sovereignty to reside in the
1 einsowthe people. its exorcist by them was, eith er
'; Germ* or by necessary implication, confined to
the establishment of, the Constitution, the amend.
mint of its defeels the correction of the abuees 1
of rive:rumen; and the choice of public "'react s
In the country from whence: we; derive our lan.
singe and the trivet body of our: law, the 'supreme
power is conceded to ho scaled in the Parliament'.
Thins sovereignly end legiolatiotrare said to be
Ornvertibla terms, and it' is asserted one cannot
ionise without the °thou'. But with Es, thir in.
triodueion of original writincompeeth, framed by
• thit People Iluiriselves has estaWished, a Marked
• distinct* between the Indefinite; and Unlimited
r of. the coMmunitbeensidered as a whale,
anttebie definite qu i d !Mated power i ef the' legisla.
'Mr. •BY the compacts. an , much of the sovereign
ekettiMitY no is theneury Lai the making of laws,
; •
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131" ERA BTos unoolts co.
J PITTSBURGH:
TUESDAY. MORNING, NOY. 9,1947
. •
Mindful of the institutions of the Country and
following the 'example set by the Federal constr.
tution,"the people of Pennsylvania when ordain.
; In, j; end eitablishing a fundamental law for th e
government of the Commonwealth, decreed that
the legislative power shall be vested in A geneiel
I iseetnbly, to consist of a Senate end -House; of
Representativei, to be elected at stated period, by
the ;citizen, of the respective Counties. They,
thus solemnly and emphatically dive ted them
' selves of all right, directly, to make or edam the
Lew or to Interfere with the ordinary le !elation of
the State, otherwise their in the manner pointed I
lent in Art. tx, Sec. xx, which declares "the chi. ;
ken. twee a right in a peaceable manner to einem-
; We together foe their common good, and to apply r
to those invested with the power of Government
for retirees of grievances or other purposes, by pa. j
' tition, address or remonstrance." 'Pais provision
which found a place iti=iFir Constitution of 1790,
is reiterated and re.establiehed by the amended
Constitution of 1833, adopted by • note of the
whole people. Thus conclusively 'showing that.
the experience of nearly half a century hod mar
ked no change in the eentimeat which lodged the
legislative authority of the co monerealth, is .o.
!retest and reponsible bodies of men, liable to the
solneedvernion of their cone d uents. as the only
safe depository of the pectin of the sovereign
power. Desiring: to interfere o further with the I
regulated action of these bot h then in the mole-,
thus expressly ;reserved, by lb . right of selecting':
the delegates compodog them d through the in-..
throne/ which 'inevitably flow from enlightened
public opinion, deliberately & arnerately express.l
ed, the people anted to guard gainst en abuse of
the high power they had del sued, by providiog j
it specific mode of election f members of the
Senate and House of Represeolatires; by prescri- I
bing these qualifications; by ielpulatiert the eePef• ;
ate and independent action of two chambers; ;
by en appeal to the conscien ce in the oath or of.;
firmation•exacted from each member to support the
constitution of the Commonwealth and to perform
the duties of his office with fidelity, and by con.
forcing on the chief Berardi's, Magietrato the
preregatite of the veto, designs.? for the correction'
of hasty and incoosidetate legelatibid. The eye- j
tern .o established is a system cif checks and bd.
once., sacking eafety in the declared responaibil.
Sy of the r indieidual egeat and the guardian
watchfulness of the cromdinate branches. The;
sedulous caw evicted hy`thoie who devised it, to'
hedge it round with defences against the attack.
of popular delusion and error from, without, and 1
Co guard it against faltblmsness and corruption
from within, is visible in almost every line of the
instrument that delineates it.,
The authority conferred in in its execution, of the
grea r test difficulty and delicacy requiring, frequent
ly, in ite use, the nicest discrimination of 'cultiva
ted and disciplined intellect, and as its active in
fluence upon the interests of the community, for
well or for woe, 'cannot be resisted, it has been
wisely lodged where experience taught it could
be most safely and conveniently exerted.
To exercise the power of making laws delega
ted to the General Assembly, is not no much the
privilege of that body as it is its duty whenever
the good of the commodity calls fir legislative.ace
bon. No man is bound, under the Constitution,
to accept 'the office of a legislature but ho who
doe. so accept caneet, -rightfully, avoid the obli
gation. it imposes' or evade - the Constitution a l
responnibilii i tes incident to it. As has born well
remarked, t o constituent is entitled not only to
the industry and fidelity of his repreeentative, but
to his judgment also, in all that relates to the btr•
sinew of priblielegislation. Anomie-Abe-prime!'
axioms of jerisprudenee, political and - municipal,,
is to be found the principle that an agent, unless
expressly empowered, cannot transfer his delega-
ted authority to another. Mete especially wher it I
rests in a confidence, part- '- es the nature of a
trust end repliers for it de ".elerne,undetalsed•
ing knowledge, and rectitude. The maxim is'
defeerdupotesfar non *est defrgerri. And what I
shalt be said to be a Weber trust, hued upon o ;
broader confidence chenille poesendon of thi kg.,
ielstive function 1 %h het task can be Imposed on
man, la a member of Society, requiring& deeper
knowledge and • purer honesty ? ft is a - duty
which cannot, therefore, be transferred by the
reptesentative, no, not even to the people them
selves, for they have forbidden it by tho aoleinn
expression of their will that the legielative power
skull be vented in the General Assembly, much
lets can it be relinquished to e portion cf the
people who cannot even claim to be the exclusive'
depositories of that part of the Sovereignty to;'
tained by the whole conimonity. An attempt to:
Jo so would be not only to disregard the eremite.
tienal inhibition, but tend directly to impress upon
the body of the State those metal diseases that have
alway s resulted- in the death of republics, and to
avoid which the echeme of 'a representative de..
moctracy was devised and is to be fostered. A-
then. once pommel a government, in a meosure
representative, bat the decrees of it. Senate were
subject to the sapervition of the popular mem.
bites of the chill!), who, by progressive Moons
tions,entirely Changed the nature of the constito•
Lion and introduced corruption, anarchy and final
destruction.' The people of thieleommonweelth,
I repeat, hare renewed to themselves the right to
alter or abolish and reconstruct the political fa.
brick and may thus, assume, if they please, the
direct control of ordinary legislation. Der in the
present advanced condidion of political Seienre
and recurring to the experience of the past, it is
not to be presumed they will ever do st. Yet
were this otherwise, it is not fur their Servants to
anticipate tbo r expression of such a will. The
. great question in this, cause is, did the legislature
of 1046 fall into the error! The peeper sedutiou
: of thin question will be beet determined by en
'enquiry into the return of Municipal laws and
ascertaining how far the act of Assembly •under
review, squares with the definition of inch law.
Municipal law, is declared to be a rule of civil
conduct presented by the legislative power, which
in England I. called supreme, cntotnancling what
is right, and prohibiting what I. wrong: “It I.
called a rule," mp the great English comment*.
tor, "to diseinguish it from advice or counsel,
which we are at liberty to follow, or riot,as we see
proper and to judge open the rei r sonsbles. er un-
reasonabless of, the thing advised, whereas, our - ,
opinions to the law depends not upon oar appro ,
betion, but upon the make. will; counsel in only
matter of persuasion, law is matter of injonction;
Counsel acts only on the willing, but law upen the ,
unwilling , also." This definition of a law I. as
strictly Soiree, applied under our institutions, a. it
le in Great Britnin; with the erngle modification
that Mir, the makers will is sabordinote to con.
stitutional injunc tion.
Frames very early period in the history of Penn.
eylvania, laws have been enacted directing public
homey of entertainment, •to be licensed with,
tho privilege of retailing spintouc liquors and nth.
er intoxicating drink. Theca were altered and' ,
modified from time to time, until bylihe act of Ilth
March 1834, which supplied and repeded previous I
enactments on!the same subject. The eeveralcourts
of Quarter Session. and. Mayor', Courts within
the Commonwealth, were empowered to grant his
eiques for Weenie or inns, to persons epplying for
the same, under certain regulations and reettiCtions
and the Supplemental act of 2let March, 1841,
made provision for the punishment of anyteen
Conflicted of retailing vinous or 'pin;
toes li ems,
by less measeres th an one quart at a time. The
act of 7th April, 1838, directed th at every pdrean
j
who shall deal in the selling of any geode, were.;
and merchandise, wines or distilled liquerl, of
or
foreign growth manufacture , except each are
sold by harem! auttioneers and by licensed t o ores
keeper., shall take outs license for Such
foreign merchandise or liquor., from the t r ey erer
, of the proper city or county. Then comes thelect
of 1846, which gifts rise to the present coritroCer.
ey. It provide., in setutance, that it Ain be law
ful for the citizens of the mineral boroughs, war].
and townships in certain rnentiee, named, inch"-
ding the calory of Allegheny, at the annual elec-
tion of e r euutables and other borough and town.
ship offeript, to decide by their vote., whether or
not the sale of .vinous and spirituous liquors
should he r permitted among them. for the ensuing
year, that whenever in any!of the rid borough.,
Prude or townships there shall be a majority of
vista ongainst the vide ofliquere," the Court of
Quarter Sessionishall not, for the ensuing year,
grant license, Loony inn or tavern, nor the (mull.
rer 'of-the county issue • license to any retailer of
merchandise for the lido's)f vinous, or spirituou s
liquors within said boroughs , wards and townships i
for slid year, that if say person in said boroughs,
turd., and to*sothipe,ehould within one year, sell
and deliver or cause to be mid and delivered, any
vinous or epiritoons liquors to any pewee, except
a. provid ed in the ects,euch person soieffingsball
be liable to be indicted and on
.amvictirdn, forfeit
and Fiji not leis than twenty not mere than one
11=12=M1
ha .4g;
• , •
it delete' ted thi Waled agents of. the =Sir
but ir moat be twin:feed In the mode and mintier
phialed out by the compaiiltself. This °hem,
ante le essential Lathe eery existence of the Com
!Mallon or • State, firt that is the instrument by
which the' administrative authority is created; its
!powers defined, and extent limited. the dance
I of the public functionaries prescribed, and the
principles according to which the govenarneut is
to be administered, delineated. (Panne. Rights of
Man, part I, p 42) or In the language of Judge
Mamma, uothfat as eloquent (2 Dail, 208)
is the form of government delineated by the migh.
ty hind of the people; in which certain first prin
ciples of fundamental lowa are established. The
Constitution is certain and fixed; it' contains the
permanent will of the people, and is the supreme
law of the land; it hi parliament to the power of
the iegislatitre, and can be revoked or altered only
by the authority that made it. The Ids giving
principle and the death doing stroke Mast pro
ceed from the same bends." Until altered or der
trayed by this authority, it is obligatory on the
people themselves and legislatures, which - .ar s e
merely its creatures; most conform to it, or they
acts will be void,—Biery thing done in cootie ,
vention of its principles in an act of usorPition.
which, uncorrected, tends directly to. its i
throw.
Out it is urged that this species of Irgislation,
if it eau with propriety be so called, boo beer, k
eine:wed by the habitude of years, obtaining
without complaint or objection; and in proof et
this our attention has 1.11 called to several in.
elancet,in which the eetion of this general avian.
bly,is thought, to bear a near ienerublance to
that which forme tier subject ; of our eropiry.:—
Were this ma, it might moire us further pause and
hornet° to arrive at a conclusion, adverse 10 the
validity of the aelion iniptinlied in this case, but
it would not jetitify as in declining to give ex
pression to thaconcluaion it it clearly appear, that
the legislature has transcended its legitimate au
thority.' A bad
he
authored to plea aul,
cannot he eel up t r justify the continuance
of an abuse in which it originated, and this is .s.
pecially title whine the queetion is of the c men.
:Winne! exertioii of a delegated power. A IMF,
cot .rulo would expel° the fundamental laws of
the Efate to continual danger of subversion Iron a
eucceseion of Microacheacros, which in the begin
ning, did not attract the public intention or invite
its inerstigatinti:w consequence too momentous to
be hazarded by limressonable deference to tolera
ted mistakes. • fuquestions of mere property, on_
inveterate error, which by repetition has attained
to the dignity of a role, may be tolerated because
an attempt to correct it would generally be pro.
&dive of morarnischief than will be marked by
its continuance. Hut such an argument can base
no place where the error committed touches with
the linger of corroding wrong the political organ
ization of a nista and threatens its existence. In
such a caw the duly of preserving the conotilution
in tact if paramount to every other, and irrespec
live of veteran strums, ei innurratively calls fir
the eradication of the canker, that the judiciary
which should shrink from applying the apprupn.
ate correctise would he justly chargeable ,nth a
growl &refection of duty.
But I apprehend that, with perhaps the excep
tion of a single doss instances of very modern
edgier - no Rich stumbling block lies in the path of
the present investigation. Even s cursory glance
at thestatiates citoJ will suffice Io ..how that ice
Principle. es in feature, they ore totally unlike tho
act of 1846. And first, the counsel for the Cop
inonwealth base pa sued to a suppoeed analogy
existing in the case of municipal cdrporatione
clothed with the power of manic bj.c.lawa fir
the conduct of its creicerr.s arid the government
of ib inembers, It is argued that this in level.,
nun by virtue of an autherity delegated by the
legislative power; a right which hiss not only pass.
ed unquestioned, but received the exprese appro
eel of this court in the mice of the Commonweolth
es Dequet, (2 Y. 493.) where it was decided that
an act of aseemblyeemowering the corporation of
Philadelphia to pass ordinances to prevent persons
from erecting wooden buililing• within certain
districts of the city, wag constitutional. But 'the
position . wanted by the COmmonwealth is hued
upon an entire inisapprebension of the nature of
the tight to maki ordinances; a right which hi
. ..
hundred dollar's: hut if any of the
,boroughs,
wards and townehipi, in the said county, shall by
a in.jinty of voter, 'decide 0 for a - .lent' liquors,"
than the lass in force regulating the business of
d
f inns and taverns and retailers of foreign good.,
Merchandize,includirig liquarlohall remain in
I'. r oe as if th 4 act had not been parsed. From the
s emery of lite features, it will be perceived this
t of the General Amenably. whether considered
an enactment of now and substantive previsiens,
o • an a statute of tepee', abrogating existing lawn,
d Pends tor .its utility and binding efficacy, within
. several counties named in it, upon the popular
• to of deaignated diatricti. Without this affirm•
ively•expressed, it is inert. Possessing no in.
0 terforce, it remains a dead letter, until breathed
et •.n by the people and called into activity by an
e ertion of their voice in- these printery assebo
bl es. Until then, it prohibit. no act, creates no
el i dace, piiints out no mode of trial, finds no Pen
a ly, and when no hidden into Ilk, its existence as
a rule of action, in banished ' to the brief penal of
a single year, unless new energy be again infused
t. rough the medium et the ballot box. If a ma
,
in ity w ' in the particular district, should vote tic
' ti vely uOn the question, yearly. to be submitted
.t. the people, the act, as a statute has no ex
is nee. It in not to be deemed, a law within the
di
_n . :m, When ouch a vote is mutt. If a mid pity bit cant in the 'affirmative then the act is
10. take cffeet an a statute, establishing a new rule
and , repealing the old.. It operates with propria
rigore but if at all, only by virtue of a mandato
expressed subsequently to it, enactment, in purse.
once of en invitation given by the legislative ho.
dim. A. It left the halls of legislation, it wan im.
perfect and unfinished for it lacked the qualities of
common d end prohibition absolutely essential to
every law. We have seen: there can be no such
thing as a law unless it ho mandatory and oblige.
tory upon those who are to be the subjects of it,
by a declaration of the legislative will. From
whence does the act of 18-16, derive this mandato
ry and obligatory character. Not from the Legisla.
tore, for in the day of its enactment it proposed it
not. If it has the character, at all hiller have
been coffered by the fiat of eportiOn" of the peo
ple expressed through their vomit., But the pupil
lay decree can only have worked this effect be
cause the citizens voting were in neaps way,
clothed with the power of ordinary legislation.—
Now It cannot ho pretended they posseszed this
power unless they draw it from the invitation to
declarelbeir will.hy on exercise of the el ec tive
franchise. But sf no, what is the other than a del.
egation of the legislative franchise, by ail art of
the gcneralAisembly? But, as has been shown,
the body was altogether incompetent to make such
a transfer. lo i delivering the jodgcrient of the
Court of Errors and aiiwals of the rate of Del
aware, in a case in off respecte like the present,—
Chief Justice Booth remarked, "The at surd spar.
taelo of a Governor referring it to a popular vote
whether a criminal convicted of a capital alTerie , ,
should be pardoned or executed, would be the initi
ject of universal ridicule, and were Weer' ol jug
tice.initead of decbling a case themselves, las 41.
real the Phrothenatory to enter judgment far
the plaintiff or defendant, according to the pop.
afar vote 01 a County, the community wow.] bo
disgusted with the folly, Mit/Stift and iniquity o
the proceedinge." l And yet Me branches of
the Government desire their authority from Iho .
•11118 instrument which confers 00 power of legs* j
Winn upon the generat Assembly, aml-azopiot
more strongly restrained by its terms, than is the
falter body. nein devolving their ilgtjos and rii
ponsibilittes upon others. ButineitiWif Mess dc
portrayal con obsolve itself of the task apprapth.
ate ti it. by substituting others ens called to no
discharge by the Constitution. None of them c.o
legally inviter the people 'to exercise. a tendon
which the Constitution makes the peculiar buil.
near of selected bodies of persona and therefore
in effect denies t. 4 every other pens* or can
they call to their aid the mass of the eomaindryc
excepi in the modes prescribed out.by the funda
mental law.
To permit either of them enUr3l,l would bin to
loosen the hold of aociety upon its greatest safety,
by removing all accountability, and thus subject.
ing the minority to the unrestrained decisions of
irresponablix and fluctuating Maj nitre. In the
want instance the good proposed by the act of
ifisembly may blind the unreflecting to the ult.
mato consequences of the false principle upon
which it proceeds, but the most intlitTerent sod
unobservant cannot but be startled by the n
non that it is a principle capable of untversal Pie I
era' ion in the business of legislation, and may be
in the end employed to procure the establishment
of laws which a iesponsible legialature would not
dare to enact. Por'an asianbly of two branchrs
designed to hold etch other ice check, the tonal.,
toajy being compomed of inewbers of an age crest.
cr than that required to give the right of suffrage,
and the procenung• of both subject to the refs al
na executive officer of still mom matured yearn
than the Senator, will be substituted a Sousa of co
t, es of every variety of menial capacity and train
ing. j Many of them may have barely attained •
the legal age of 21 years, from whom tension no
appeal lie, but to threaders, and 1711140 ante. I '
is asst joct to no eau.
Before the adoption of the constitution of 1790
great' danger of incon•entence end irj iiy
found to proceed from lbc coercion of the
tiva Inaction by a single bans, of representatives.
This was remedied by the erection of two ea onto
nate houses, in imitation of the lintioh Parliament
and of. Congress, Under tae federal constitution.
The example like, I Liu. r.', !fen I:ditm<3l
every 'state of the e 1-.le.dersty, lu;11,„,
tt
nowersol asrent to a system avhien lane raper,
since has tested as here3A3:y ti prevent mob, in
considerate and unjust Irv-I:men. Mut if the
two houses can then;selets of their tifice ot
law-makers and &soda° it upon the holy of the
people, what security have we against the passage
of lama, pettily, well meant. but liable to be glar
ingly wrong because inconsiderately adopted" and
what check to lett os upon hasty and 111 shred ,
zeal, open to be influenced and inivgnidiel by in
is-rested, cunning or blind fanaticism? It M,
practice be senctionta there may follow a train o
experiments; which Ur:M.3lPd at Barr, pnua
their progress, must end in the final overthrow o
the COneWution. Every C 350 of doubtful prorate
ty will be referred to the result of a ballot, and
acts of Assembly, jest to the popular vote, rain
be yielded 10, unthinking clamor or partizan im
portunity. by faithlas legislators Mali:mat o eacape
the responsibility of their paition.
It is . insisted, howsver, that the legislator when
contemplating impatient changes in toe exiettng
law, has nut only - rightcdn3ult the opinion.
and wishes Of-the constituent, but ought to do SO,
inasmuch as in a country of free inaiiutionA t
only security fir the stability of the law 11 list
rests in the approbation of those who are them
jests of it, Thin is not denied; and in truth,
the practical' working of our system such is a
ways the case. But the public opinion When 3
cerlained howl be adopted by the logi,d s tu re
th e f i r m of s ovate bet re it can base the fort
of a law; la, I repeat, to give to legislative ado
this drat, it taut lie by an expresaion of the
li
giolative will alone.
.1
r
•
. I
said to bet necessanly i incident to every corporation
aggregate. By laws,Srhether enacted in sum-
Mee 01 express authority given by charter or with.'
oat it, ran no more thon'a specie. of contract ,bc'
mecca the individual members; and in the case of
municipal corporation., may La extended to a
cranger who comes voluntarily within the juris.
diction, open, the principle that his coming is
equivalent to an assent to be bound by' the local
law'of the place. "Hulce," .aye Mr Icyd in his
treatise on corporations, “which are to direct the
general' conduct, must be established by a ma
jority of the willo of the whole community or by
the rmolutions of a select bodj to whom the
whole community have delegated the' legislative
authority. Them general rules when applied to
all the inhabitants of a country, united, rude,
orindependent governmenL ars called lawn; when
applied to subordinate communities IbeY ore
called private ordinances, or bylaws. All by
laws hare their obligation from the consent, either
express or implied, of the parties who are to be
bound by them, and therefore every member of
a corporation is bound by the bye laws of the
corporation without express notice of them, nor ,
w e lt an oljection to hi, being bound by every
particular bye law that be was not a member at
the time it was made." In the case of the city
of London vs Wood,i2d4lo.t. 6861 cited by the
Commonwealth, Lord Ch J. Holt remarked that
a Oily is to be considered ..as a great community
that have a legislative form entrusted to them for
their better government, and can make laws to
hind the property of those that live within that
precinct, and also of all otmegeis whatsoever that
coma within the limits of their jurisdiction; and it
urea necessary and convenient that they should
have each rower bribe support of their governs
meet, Fur the summer jurisdiction cannot
bane leisure to inspect into the small matters that
concern the whole order and regulation oPfoatters
within that society or community, as they that
are members'of it Mal" list it is evident t hie
eminent judge had in contemplation that which is
the foundation of the right to make binding bye
.laws or ordinances, namely: the consent of the
parties to be effected by them. It is On the
ground- (If consent, too, that the miterity i.
bound by the expressed will of the majority.
But hew, when or where ham the minority of
the.poriple of Allegheny cruty, agreed to be owe
caned by the will of a majority of their fellow.,
except/in the mode pointed out by the conatitu
liana& the State of which they are members !'
They have agreed they will be sulject to the revo
lutions of "selected bodim . .of min to whom the
community has delegated Me legislative authori
ty." when their decrees assume the character of
laws, because endowed with the principles of Sc'
lions which only theme selected bodies can confer.
Hut there ie no assent beyond this and, therefore,
that supp.med analogy between the race of Car
tp venom: exercising the right of enacting byelaos
and a delegation of authority to make rules for
the government of the people of the State or any
pair an of them, alhegether
'fhe act of 1930 and ,its supplements, winch
esteleliahed the system oerommon Schools, is
also pointed to as an instance of legielation by
m-ane of the popular vote. In reepect to public
education ; an Injunction wen laid on the Gene
ral Aesembly by Art. 7, Sec. I, of the Connitu•
lion of 1790, aud repeated by the aneende,lCon
stitutiou. to "provide by inn for the establish
incot of schools throughout the State, in such
manner that the poor shall be taught gratix."—
Thee“doty Was veryinmerfectly discharged, an
til the'peenage of the net of 1636. It erected
every leerough. wartrand , township iu the Cum.
ilionweolth, out of the boom/sof the city and in
-
contended districts of the county of Philadelphia,
into a. school district; null , w connection with
*awe-quern statutee, points out very minutely
nod xpec•lic.tlly the mode in which the system
- it provident should be corned lute effect. School
directors are to be elected iu each district, and
to be orguoized for the transaction of bonne.
by choosing u president, secretary and treasurer,
and they are charged with the business of con
ducting the details of the system.' Of the public
trembee, a school fund was set apart, which, from
limo to time, him been increased, to be distribu
ted among- 11m accepting acleml distnees. The
13th archon directs that auelection shall be held,
cat stated periods, within each echoed district, at,
which the queetiou of establishing common •
schools obeli be ihecide6 by the qualified Vetere
of the district. If n majority of the ballots de.
' , meted shall conteun the word "schools," the ,
school director, cite to proceed to establish
schools agreeably to the provisions of the act ;
but if a majority shall contain the words ••no
eehooll," the alystonl 10 not to go into operation
wallet, the particular district for a limited period.
The act turther provided for the bolding. Of elec
isons withie such districts as maw 'theretofore
have accepted the evelem, and 'directs that,
should u majority cast their ballots against its
further continuance, it ellen be mspeuded until
a majority of the iiihatetints, by them votes, one,
mwese decide. It is instated that the power thus
conceded to the people o( the doitricts, to accept
or reject the system of .comnton echuole, is of the
same nature nod character itathat conferred by
the act of 1646; sod that this power has not
only been beneficially exercieed, without com•
plaint or qumtion,. hot that its legitimacy has
been recognized end sanctioned by the people
themselves. acute; in their KlVercig“ capacity.
to proof of this we arc referred to the schedule
Impended to the amended Constitution, adopted
by a vote of the to.ople. in 1638, which declares .
Clint 'oil lose or t h e Commonwealth in force at
the tone whom the said alteratiou• and amend
silents in the mid Connitution shall take effect,
ned not enconststent therewith,' "shall conlonio
no if r ate said a:Mentions had not been made."
1 e'inßeed, that portion of the school low I hade
pat tieularty noticed were in contnvention of the
Canstitanou, the argetnent, so far as it is based
ovate ahy supposed
thenaetio ortbe convention
. which trammel it, or of people in adopting it,
' would he elewn of its ntreength by the caving
cluuse, "not inconsistent therewith." But it is
truneeeesery to combat the argument on tide
ground, for no such inconsistency exists. The
several sets of A...nobly, constituting the Cont
. mon School system, Caine from the Geuerel
Amenehly complete nod perfect laws, drawing
the pre:lmola of hie from the creative power oi
thelegeelai ore, and looking to no other authority
to ilneSt them with the cuirepteleive power of
rule. A short vaalnination of than. scope, :Wont
and nitele ml operation will make thiamauirred,
and pruni e that, unlike the net of 1846, they doi
not make the repeal of former • laws, and the
cp . /din/1 of nunatututantial Onvo,,th depend upon
the tiat ol the popular vote. Under their previs
aims, n e/ 1110 1 . 11i4triGt, Wpm. the election of
reboot directora, :becomes Vole: a corporation
entitled for vehooi.yurpover, to receive a share of
the public donation froin the treasury of the
Conononweelth, upon the condition that the ha
babliants.shall agar to levy a tax for the sup
pot of Ilia schools within the bounds of the dis•
trait. It is true, that the citizens are called to
deride by their votes whether Common School,
shalt he: established within their preeinets But
for what purpose I Not to determine whether
the acts of Assembly shall become laws. The
object of the vole IN declared by the 4tle section
of dm net of 1630, that it in provided that "the
school &rectum of every school district which lam
adopted the Common School system, or which
;nay hereafter adopt the mine, shall annually,
on or before the first Monday of May, authorize
In be levied such au mounter tax in said .dis.
tnet as they may think necessary for mime' pur
poses, not less than equal to, nor more theatre ;
bite the eritomit whiele the district is entitled to
receive out of the annual State appropriatiten.:"
TLe succeeding sections, in conneettion with the
not of Kith April, 18:18, point out the manuer
wi iu
lieil tha tan to lie oeseesed, collected.and
tepid/ed. inspertim of the statute wilfeheiv
I that a vole' acreeptiug the teyenent devised,
I Montan to nothing more them a derlaration of
a welling: men to mititribute an amount of money.
by wiry of too, I,nuld to the public dortatiou, and
that a negative vote is but a refusal of the pub
; lie money upon the tandition proposed.
proposition which the statutes make to the peo
, rile of marsh of the school districts is, .1110! . e ,
be paid to you u certain portion of the public
treasure for the establishment and eupport of
schools, mid, the system devised by the legisla
ture, provided you will agree to authorize your
school directors to levy Upon your property u
Mx bearing a certain proportion to the amount
of the donation ; and in the event of your so
tegrecieg, the school director, are hereby author
ized unit required to levy and collect the lim—
it may, hoverer, be objected thetutt agreement
to levy a tax, by vote or otherwise, is in itself an
exercise of the legislative power. But here an
olivious distinction is to be observed. A law
dmignatiug the perm., or bodies of persona, by
who., a tan may be imposed, and this 'mode in
which it al'all be, collected and distributed, re
quires the authority of the comtitotional law
maker, for it is a rule of action premribed: But
the net of the designated persons or bodies de
pends, for its authority, altogether upon the law
commanding or permitting it. •Cif the illastru
hone furnished by our statute book of this dis-
Ouch.,may be mentioned the laws rimPOwer- •
ing Countv Commissioners and Sup&visent of
Townships to imply and levy taxes for county
uud township purposes, respectively. In 'these
cases, deliberation, judgment and discretion are
to be employed, and there are many points to.
be determined, but the right to determine Is de
rived from the statute. Hut this is a very differ
ent right from that sought to be drown front a
f , o.oemlloll of pow, to enact a penal statute un
der which the citizen may be indicted and pun
ished. In respect to the vote to be taken, which,
as I Imoo said, is in effect but to agree or dis•
agree to the proposed lax, the school districts,
rnny be assimilated to an aggregate corporation,
which may levy a tax upon us members to meet
liaapOrate eligennita ; but this must be by virtue
of the charter or act of incorporation. • The dis
similarity between mch an repression of assent
nod that which has brought the plaintiff M error
into the position of a criminal, is on obvious, that
it is unnecessary further to elaborate the +yip.
Lunn upon this point.
. I E4 it is, forther,urged that the act of Assem
blys loNnestionis to be regarded, not as Mn act
delegating the power of legislation,but son coe
dit/final statute, to take effect or be void .upon
Ole happening of a contingdncy pointed out in the
act itself. That the legislature may enact laws
to take effect or expire allsome future time, or
'Op. a future event, is nut to he denied. Our'
attention has been called to an instance of this
kind, which, as it is apposed, proves the simply
conditional character of the act of 1846. It is
found in the legislation of Congress, prohibiting
the introduction of British and French good. into
the United States, unless these nations would,
respectively, modify their micte interfering with
central commerce. The flint of these nets was
passed in lilarcti,4 809, and was limited to expire
on : the last day of the then next session of
Congress. On the first of May, 1810, Con
gress passed another act declaring that if ei
ther Great BritiM or France should repeal
or modify her edicts so, that they should
cease to violate the neutral commerce of the
United States, the President should proclaim the
fact; and in the event of the other nation not
'following the example, in three menthe thereaf
ter, the interdictory section. of the act of 1809
should be revived in full force: or against the re
fusing nation. And that ps to the revoking na
tion, the restrictions imposed by the act of 1810
should tense (corn the date of the proclamation.
In the case of 'rho Aurora vs. The U. 5.(7
Crutch 39(7) the right of Congress to enact. this
law man called in question; but the Supreme
Court of the IL S. held that Congress might ex
tend and revive . the act, of 1809 conditionally,
upon the (Incurrence of 'subsequent events, to . be
ascertained by thi President'. proclamation. It
is plain the reviv I or continued suspension of
the act of 1809 %ins not .made to depend upon
the proclamation, but upon independent facts
of 'which the proclamation was evidence; af
ter which the statute operated proprio rigor.
In,, commenting. upon these enactments, C. J.
Booth, in the opinion already adverted to, °b
eer... "Had the President been empowered to
repeal existing lawn, and create a - new law, by
the exercise of his will, and to announce his de
cision by a proclamation, as the people of New
Castle county were empowered to do by the le
gislature of this State, and to have their decision
unuminced by the returns of an election, there
would be an analogy between the two cum
Were it poraible to suppose such an absurdityan
the part of Congress, their net would have been
' declared void, which thus undertook to transfer
the legislative power exclusively to the Presi.
dent e and no to abrogate the eunstitution."—
Th.e remarks are uppliciible to our own act of
Assembly, and to them may lie added a notice
of another .d vital distinction between it ana
the legislation of emigres. In the latter in.
genre, the power which created the law was
exerted by the federal legislature, looking to no
external aid, bat the production of our Senate
and House of Represeutative• came forth maim
ed, impotent and functinnleu, until vivified b.
the popular breath. In the roe case tine deer ,
is, this statute shall take client inn action, or
operation be suspended upon the occur.,
particular event; in the other, tide act
inoperative. unless otherwise willed by .
pie. In the fuel case, the law reinisins
cent until the happening of the appro,
event stirs it into motion; in tine lost, tit,
called law, not altogether without the powet
motion, of itself, when it left the bands of tl,
law 'oaken: And this in the distinction be•
tween a conditional low, properly so denomina•
red, and an act of tine law-making power spelt.
ing to transfer its fixations to another. The
one leaves nothing lobe done to perfect the rule
of .0., the other but moulds the clay into
shops., leaving to thir ;Imo. the tusk of
breathing into its mimi d c
frame the energy of
life:, 'What is this more or better than simply
preparing tine project of a law to be submitteo
(or the sauctiou of a distinct and independent
iiihnual, whose will is to determine its future'
existence or continued nonentity 7
Art , 4lier supporied parallel to the act of 16'46
le thouilst, by the counsel of the Commonwealth,
to be f„.kin the act of 14th April, 1935, which
submitted to,the citizens of the State the ques
tion whether a'ariuvention should be holden to
propose and subt(ilt--for their ratification or re
jection, a new State Constitution 1. But very
a little reflection will satin( -the inquirer that no
suchparallel exists. T hn question propounde d .
for solution by the pePul vote aid not pertain.
to the_ ordinary business ( legislation, but re
. (erred . itself, directly, to he eminent dominion
which, as has been see , resides only in the
people, who ore al-me co petent to decide upon
any proposed modification Of the fuudamentol
law. The Constitution of 1790 pointed out no
particninr mode by which an alteration of its
proviaions might be elTdeled, and it was,.tliere
lore, car., Meat thut the legWeitiie body should
indicate the manner iu which the popular will
might 'be manifested in respect to' a subject
which 'only the popular will was coetent to
deal with. Au act of Assembly wee note ssen
tial to this purpose, hot simply convenient
Thougli enacted with all the hams of a hew,-it
wm noon truth a law, for it contained nothing
binding or obligatory ow the people, who were at
liberty-la obey or dinobev it, as they klati. proper.
They might have moved without such an net,
and its enaLitinent, to regulate and direct the
movement, certainly oddest nothing to its eirt.
weedy; other than as furnishing ti menu for as
certaining, with certainty, the public decision.
The existence of the legislative resolutions tiei•
liner added to nor detracted from the force of the
• dee,siod 0 hen mode, our did the resolution, an a
leg.i,:atie act, derive any superior sanction from
tl%decision. One depended in no degree upon
the other, but cock was, in itself, perfect within
is proper sphere. The Iwzisloture 1003 power
less to alter the constitution, but it possessed the
right to invite (Inc people to express their wishes
on the subject. The people Were unequal to an
ordinary, act of ;legislation, but they might, it
they would, change the frame of their govein
inept. They did change it, Meanie of its fea
tures, bat this wax done of their own absolute
mid inalienable power, and not by virtue of au
thority delegated to them by the legislature, for
the act of tine 2ilth March, I n3O, providing for
the colt of a convention, wail but the vehicle to
curry the public wish into effect. There is, in
fact, not the slightest reseinbl.ce between the'
initiatory legislative step which resulted in a
change of the Constitution, and that by which
they called the people iii!o legislative council.
Indeed, so entirely dissimilar are the two cases,
it is strange a likeness should have been ima
gined.
With a single exception, to be presently no
ticed, whet has been said disposes of all that
was urged upon the part of the Commonwealth,
so
tending to suppose the validity of the act of
letf, But since the argument of the case, it
has bran suggeated Mut Meta.es of a valid del
egation of legislative authority is to be foam] in
the statutes made by Geogr..., from time to
tune, erecting portions'of the public domain into
territories, and organizing theni for the purposes
of government, by authorizing the appointment
and election of executive, judicial and legisla
tive oflicere, and conferring . the latter the
pewee to make laws, subject to the approval of
Congress. It in true that, by the. Congreesion
al acts, the legislative,function is bestowed, mid
they therefore furnish Sexamplen of a delegation
of legislative authority by a body which is itself
subordinate. But the right to exercise this high
power is expressly granted by the Federal Con
stitution, which, by Art 4, Sec 3, provides tillt
"Congress shall have power to dispose of, a l `d
make ell ueedful rules and regulations respect
ing thy territory or other property belonging to
the Celled Staten." Under this grunt, which
was, indeed, indispensibly necessary for the pro
per disPoeition and regulation of the widely
spread Idistricte of country belonging to the
Union, P.m . .nn has rightfully enacted the awe
referred to, add yet, mindful of the elementary
principfis upon which the Republic is based,
they have always invested the people of the ter
ritories with the choice of the legislative agents.
As already intimated, there is a de. of Ma
tinee, of modern origin, which it is difficult to
recognize 03 biting constitutionally made. I al
lude to a series of acts of Aseembly, which seem
to have originated ae late . the year 1839, and
been repeated, in succeisive pram, down to the ,
present. These provide all the details necessary'
for the erection and government of hots. fur .
the tampon and employment of thoopr, in the,
county named M each of these act's, but cl6ne I
with a direction that the question of erecting a
poor-house shall be submitted to the decision, toy
ballot, of the people of the particular county,
and according.4u the result of the vote, the act
shall take effect rii , be null and void. .Whether
this provision can, in principle, be distinguished
front that walleye been reviewing, it is not now
necessary to decide; and perhaps may never be. J
If it be unconstitutional, the act. may he cited I
as showing how silently and insidiously a don I
geroos practice may creep, unnoticed, into the I
legislature of the State, but surely they cennot . ;
be called in to justify a continuance of the pra y-
tine. Being limited in their objects and effects, '
they are perhaps -no further injurious than as
furnishing precedents of linproper legislation, at
first touching. matters of small moment, hut
sure, in the end, to be extended to subjects of
more general concern. It may be mentioned,
an worthy of ~ i'emark, that this sped. of legiala-
Bon, if it can with propriety be so called, him
grown into use within a very recent period, and,
it is believed, aril the message of the act of
184 G, was confined to objects of n local charac•
ter, ipt calculated to awaken the general otte.
lion, and it is perhaps micribuble to this fact that
they here been suffered to pass without com•
Plaint. . - .
,For_the reasons which have been given, the
Court, after 'much reflection, and not without
- reluctance, is forced to the conclusion that the
act of Assembly, upon which the plaintiff in er
ror stands convicted, is inopeiative and void,
end , n e neefleentl.Y, does not warrant: the judg
ment pronounced by the Court , helow. It is,
therefore, reversed, and. the plaintiff in error is
In be discharged:without. delay.
J4 ll cetsEturh'slates and Coulter dissented from
•
dip/forgoing opinion.'
1 . JUSTICE COULTER'S OPINION.
Coulter Justice. The Plaintiff in Error coo
-1 tends that the Act of Assembly of the 7th April,
1846, authorizing the citizens of the several 80,
oughts, Townships, and Wards, in the eeveral
counties enumerated in the act, to decideby ballot
whether the sale of spirituous. liquors was desired
among them or not,.ie.cunstitutional, and Mat;
therefore, no the conviction in this case is found
ed on that act, it is wrong, and ought be be revers.
ed. The argument of the counsel for ihepleintiff
' in error, proceeds en the ground that the law re
fers back to the people the power of legislation
vested on it, which it cannot do. 2.1. Because
such laws have a tendency to convert the govern
ment keno open democracy, by submitting too
muel authority, to the people, because the law is
not universal and equal over thb Conmebnwealth.
. These objections will be considered in their order.
.1 must ay first, however, that the distribution of
power among the co-ordinate brenc es of the gov.
eminent, is !admirable, ;and Tha t the just equi..
librium of all ought to be Mese yeti and that
it is the especial duty of ". Court to
observe. with sedulous
,care, e just lice. it. of its own authority, es well i r toguard the
land marks which define the boo dories of the
other departments. The duty of pro iding for the
general welfare, and of regulating tie public poi
icy of the State so is to promote the public good,,
is confided to the . tegislature. Thlir powers in
this respect, except as limited by the hill of rights,
are full, ample and sovereign, being totally dissim-.
ilar to. those of the Congress of the United Ste.,
whose powers are enumerated. Budl to our Leg.
isleture is confided all Legislative authority, except
so for as it is limited by the bill of nglit., which
iw the only exception. The first inquiry, there
fore, is, dues this law violate . any section of the
1 bill of our rights, which the Conatituon declares
abaft bo excepted out of the general giant of legis.
tense power..: That has not been p'Ftended in
• the argument, could it be within a y show of
reason. In every civilized country o the worl4
granting licences to sell spirituous liquor., hew
been considered under the dominion of the law
snaking powers, and only to be allow.i nod per
mitted when it promoted the public- geed. It has
been peculiarly so in the United Stat.,froartheir
beginning. This law therefore violates no pri
vate vested right, no man belting a vested right to
waive a license to sell spirituous Nimes, if deem.
.1 by the law making power contrary th the gem.
eral good. Ho might as well pretend that ho bad
a right to sell obscene pictures, to corrupt the
morals, or vend lottery tickets, when the law de.
. dared it agaioat the public good.' Thil . ilaw then.
does not violate private night. - It solely regards
public policy, the course of which i. committed to
the general miserably, and in such case the viola.
, lion of the constitution ought to be clear, and be
yond doubt, to justify this Court, to dechrie itvoid.
Out, it is alledged that, the legislature transferred
their power to the people, and that the law derives
its power tram tho vote of the different wards,
which may produce a different result inolifferent
and contiguoua districts. l'hn point of the eljec
tine, so tar as it regards the conetitutioe, tilates
to the mode and manner of ensuing or establish
ing the low, but that is entirely within the discre
tion ofthe legislature. If en lorli•iduld grants es
power of attorney to another, in transmit all his
wordly business, that surely dam not Marmot the
agent from asking advice from his princliple; and
nothing would prevent the agent from making a
contract to take effect, and if it should bet i approved
by the principal, let any man lay his finger upon
any section or clause in the Comnitutidn, which
prevents the Legislature from consulting the will
of their constituents, or from making . a low to
take effect, If Me will oP their principal44o-ap.
prove it. The objection is, that. thif-1.,e-kislatore
have all the law making power granted, but does
not that very circumstaeice allosi and permit them
to introduce a contingency into the law upon the
. happening of which it shall effect. The cretin.
gamey is the creation of the law and part of it, and
when it happens, the law becomes absolute. If a
grant securing a lot in the city of Allegheny to
that city, if the citizens, by a majority of vetes at
their noir election, agree to accept it, it would not
be the. vote which made the deed, orcreated the
Mate, but it would be the deed of the grantor.—
The acceptance of the citizens by vote, was only
the evidence of the couthigency, upon the happen
ing of which the deed vsan to be absolute. And
. so with regard to a law pawied by the Legislature,
submitting its acceptance to the vote of the peo
ple in each ward or township. It ii not the vote
witch makes the law,—that is only evidence of
the happening of the contingency, upon whin the
law is to go into operation or not. This condi
timid legislation So fully within. the competency
of the Legislature,—surrenders no power passed
by thew, nod is a fair exercise of then discretion,
Its °potation cardrs along with it the willing
minds of the people, which is elan: • • matter
of great moment in a free government, with re
gard to laws whkb proposes considerable change,
In the customs of the people, and which prepares
them more effectually to accomplish a great
reform. But the, omonents of the law would
make it ancenatitutional, because the Legis
lature did not comedown o Um people with.
t
co
out warning, in a .perernpt ry, uonditiobal
absolute, 'bon fisted law. That is the kind,'
of laws which they alledgo are constitutional.—l . coins down upon dm sovereign people;l
as a mandato from a master to a servant, who
ha. no voice. , no right to be beard or consulted.
If the Legislature can pass a law to take eff...et 1
nism a csntingency. (which I will show from
the highest authority ,) why may Iltal condor'
pricy not rest to the ballot box! Is there any
ti
ng in its operation which is , a lien, or for
el nto a representative republic! In tho cane I
in hand, ft is but the evidetme, whether the sale
of quinines liquor., by license from the govern- ,
ioent, is desired or net, or will or not promote'
the public good in the ward. A wt.o arid pa
rental government ought not to force this oral
fie hia defiance of the . public will, and that pub..
lie will is more surely ascertained at the ballot
box than in any other mode- The propriety or
expediency of the law does not fall within the
competency of this court to docile. That i.
not the question. But may not her Legislature
• constitutionally enact it! Whenever it is disop.
proved by. the people, her Legislature may alter,
modify, or repeal it. I will show by and by hew
far the people base bean. authorised in town
meeting to make laws for their government in
sister States. But from the earliest dawn of our
consditutionit or ...our Colonial Legiylature,
the will sod desires of the people have been coo
suited, as to the operation of law, either bet..
it was enamed or afterwards, by means of in.
termediate agents. When. the establisinitimt of
roads and highways is not a judiMal not, if dey
not fall within the range of Judicial duti.,:but
is eftentially . a high legislative. act of the most
impottant character, and some times the Leger-
Ilure exercise it directly as to County or State
road., but they, In a sound exercise of thrill.
I discretion, have vested, or if the phrase is pre.
(erred, delegated to tho Comm, through the nen
cy of viewers and reviewers, power to ascertain
the wants and wishes of the people on the subject,
and by law, it is theism] that upon condition that
the Timers and the Court agree upon a particular
road, it shall from thenceforth be deemed and to
ken es a public mad or highway. In this case, it
is nut the Court or the viewers who make the
law or the road; they only afford the evidence
upon which the law operates, and ordain. the
road. So in relation to taverns or inns licensed
to retail spirituous liquors. The old low requires
the certificate of twelve respectable persons of the
ward or township, to certify that d tavern or ion
is neceasary in the neighborhood. and this certi
ficate of the cinema must be apPrn . yed by the
Court, and the concurrence of both to the condi.
lion on which the latZ , shall operate. ;What dee
is this law ender considertinn, than a certificate
of a majorilf of the citizen. of the townships or
ward that one ion or tavern, or other
ment for vending spirituous liquors, is not neees.
eery in he ward or township, end that is the con.
dition u pon which-rho law is to be enforced or
not.
But it is a certificate given at the ballot box, and
that gives it weight and reapecUbility in my
judgment far alrovoa certificate annexed to peti.
lions. Ono is procured upon solicitation and giv
en to oblige • neighbour. In the other caw of
the ballot box, the matter is disease.% thought and
redacted on, and the opinion exprewed calmly as
the voter chem.,. And upon a certificate of the
majority of the 'voters of the ward or township
thus given, that house. for Selling spirituous li
gums are not wanted or necessary in the ward er
township, the law declare. that no license elan be
granted. It. ha. been said in the argument, that
we would have a number of domestic parliament.,
alluding to the vote of ward, and boroughs and
townships. But, thank the Almighty, ant have
no parliaments in this country, either domestic or
(Meier% but we have the vote at the ballot box in
dietricts suitable to the people where they elect
the president of, this country, the Governor , of the
Slate, ?Hembree of Congrenr, and of Awembly, and
all oflicera down fo fence prusare. And this
they do calmly in the Manner prescribed by lave,
under the control and regulation of the law,
and in the presence of the law, by its officers and
miniders. And yet, this people cannot be cue
trusted to expreal by the ballot box, in the ertitna.
now of the learned counsel, when they wish to hare
housealieensed among them to sell spirituous
quern. The ballot box is not a parliamentdomrstic
or other swirls, but bye and bye, it will be the muter
of parliaments. It is as yet peculiar to our free
institutieus,—was devisedond pat in practice
here; flu answered admirably all the purposes of
its adotition, and, alighted or not, it is the real low.
°reign power,—• power which ildestinF.4„to make
a. mighty movement in lbt world, and it is not
worth while to cavil at this small item entrusted
to it by the Legislatcre, whiCh i• no more of leg.
elation, is my opinion, thati electing an Overseer
of the Poor is legislation. The law has author.
iced the people to vote on a particular subject, and
in casting their vote, they merely discharge a PO'
`allege granted to tjaem by law. The real power
of the ballot box tides la the faculty ofelecting
all efEcarel
by tb t m r.
To e y tba ,
stilatimal
made ele4ive . by the Constitution, and
SUS it can at least accomplish its purpose.
the law it, questa:el delegates the con-
Nrcr to j , a,..lassa to aoj body, or to
is begging tho question, and assuming
n.
the people
a conch.:o
10041 n o ellutilcfat, Some inslcltcaa approach
ing more n a rty to a transfer of legislative tumors
which have been approved 'by
,the hignest jidipial
sandier, bus the constlautton of the U. States !
Testa in 4. - i ogress the punter to make all meant i
rule. and re illations respeCting tho territories of
the Chitral totes, and in pursuance of *impairer
they have u tformly authorized the Governor and
Executive tiourictl of, the territories since thb ordi
iz
nonce establishing the first in'l7s , , to collect ouch
1
laws of (ho uidj tieing States as were auitable,to
their condition, and embody theln as. the, NW. of
the .territory,lwhich collection, was to be in farce,
and taken as lows, until, one oral! of Mena should
be disapproved by Congress. Thus the very Mee
non of !quietism, was conferred. But it was the
act of Congress which gore force and vitality to
that function.. By the I 1 th section of the act of
Congress of May let,. 1810, the President of the
United States Was authorized in case either France
or Great Britatu should so revoke or modify their
edicts as that they ceased to violate the neutral
commerce of the United States, in hie judgment
and discretion to declare the same by prociams.
tion, after which proclaination, the wade suspend
od by that act, and the act laying "an embargo
might be revived. In tho easel of the cargo el
Brig Aurora, 7th Crunch, 382, the constitutional
ity of this law was questioned. Mr. Ingersol con
tended that "Congress could not Leonides the legia.
Wive power to the President that to make the re
vival of a law depend upon the President's
proclamation;_ was to give to that proclamation
the force of law. But Mr. Law, a most distill.
guished jurist, replied that Cion;ress, only pre
scribed the evidence which ahould be•admitted of
a fact on which the law should go into operation
or not, and the Court .sustained the constitu•
throatily of tbo law. The learned and experien•
, ced jodge Johnston who delivered the opinion of
1 the Court,,said o e SCE no Sufficient rennin why
1 the legislature sho Id not coercive at discretion.
either expressly or couffitioually as their judgment
should direct. T em the Contingency was the
will of the Presid irt, here if is the willof the
people. This ca is strongly in point. The le
! gis/ature, in then tin question exercise their duo.
cretion conditions ly, and prescribe the evidence
1 of the fact on which the law shall go into opera.
j lion or not.
would
. her that evidence W the con
cilia'ssent of twelve reel debt° cilia' of the ward or
township arid tho approbation of the Court, or
the approbation Of majority of the people of the
ward or township would VIM to be purdy and
I absolutely within the legislature diecritien.
I have nientiOnoll, these cases oceuring in the
1 legislation of Congress, which have not only r e .
mind the sanction of the highest judicial author
, ity, but have becentynnwed also by the Bignaturce
1 of our wisest Preldoerila arid rho c.insent of pub•
lic opinion. In the history of our own legislation
I pregnant instanceS of the same kind have occur
red.
Section 7th of the 6th article of the new con
stitution provides that the justices of the peace and
aldermen of the several wards boroughs and town
ships shell be eleted, 111 inch number as shall hr
directed by law," and tholict of 3lst June, 1839,
directs that two shall be the number in each word,
borough, or township, not thequalified voters
' of any ward, boiough or Mammy may upon
notice given •by fury of their number decide
at any election', for conitables, determine, to
increase the nunikr by • majority of voice
expressing inir vote. increase ono or tyro,
or no increase. And if a majority of votes
is for increase, in such case, at the next
election for consloble in said township, an elec
tion shell be held for the Masons, number. And
commission. shall he bowed to the ono or more
who shall be elected. The constitution provides
that this number shah to fixed by law,_but the
law aubmits the choice of number, to the people,
and provides that according to their decision 9,-1n
missions shall be issued This law tells also - cm.
der the intenlict of the principle valject to buss.
tablished, and must he evetturned.
In a number of tho counties of the common.
wraith, Poor houses lu,ive been established, upon
a vote of the people of the respective counties.
The legislature first enacted the law, establishing
a system, rind then provided, that if a majority of
the people decided it the neat election, to accept
the law it should upon that event become oillge
tory. On the faith of. these law., property has
been purchased, large and expensive buildings
erected, officers annually elixir.] by
the people,
taxes levied, and all with the assent of, palm 1
io
opinn. Yea all the. establishments will topple ~
down, under the witherini effect of the principle I
now to be 'ertabliahed, that it is not within the i
constitutional d iieretion of the legislature to make
a law take effect upon the coritiegmmy of its be. - 1
tag opposed by a mej•irity of tne people at the'
ballot box. But 111,0,0 Ebb., 110 of paramount im
portance is the Sithool law. That law so strongly
imbedded in the alfeethms of the people. is found.
i.ll on the priociple now asset ted m to, unconstitu
tional. And es it has born repeatedly recognized
n by .a a n l ci l o n u g rz t u oth rts ,, , , w ia e w . oug , c hlz ,tr hes hk im o te i , ,,is
u e
before i pro- n.
tabltahment. unconstitutional. Some possible
elude of difference may be imagined by ingenuity:
But the great principle is in both, a submission to
the people to ascertain their wishes. And if One
should le held Conchtirtional and the other
I not, it would be th l e . result of Outline will and not
of reason or judginent. Beside the general grant
of all legislative'p4wer, there iv a • special injure. '
non ism the constryltien, that the "legislature shalt,
as Soon as conveniently may lie prwided.by laze '
tor the establiehMent of'schools throughout the'
State. They prow'ridal by law for that purpose.
but submittal the law to the acceptance or njee.. I
tot of the different school districts—which law I
may be rejected by any district afire it has accept.]
red it, every triennial year. But if this art of as.
seedily has been made by the dislitebe accepting or
rejecting it, then the constitutional ir . janction has
never been complied with, nod the lilis, being the
work of the several chi:tete:els of no free or con
stitutional obligation. Beside as to the law under
consideration, the legislature dud not provide Inv
the establishment of schools throughout the
State, the city and inCaltpolsted doenets of the
county of Philadelphia 'being excepted :comps.
ing wrhaps ono tenth of the population of the
State. They had been previolly furnished with
. PyreM, according to their wi.lwii. And this
tole provides how thee shell be csllectral in thi
non accepting districts, by the rnannissian . ers of
the county toe the schooling Of the poor in those
districts; thus showing that aillitrent !miss and
rule. may °boson even in edjointng districts. As
I harm shown the license law cannot be distill- .
Cniatted from the school law, by one being for the
whole State, and the other not. They .are both
local, nor can it he distinguished beerase the
school law is a matter of general policy and the
other not. 'Po keep Inn. or sell liquors his al.
ways boon under the dominion of the Irwin Eng.
laud, in every civilized country cf Europe, end
in all the American States. Every where, it is
considered, as belonging tette public polity of the
government, and only to be allowed or disused
as the general good and convenience required.
('he result of these elections proved how safely
any measure , tending to thin public benefit, the pro
motion of public morals, nod the dial.i. o of
knowledge, among them may be embalmed to the
people. This law thus by Mimeo provisions to
take street, cfn'thie contingency of its being ac.
cepted by a itiajOrity of the votes, in the particular
&atria, has been universally approved by the pub.
lie sentiment and intelligence. Its cometution
allty was never doubted so far is I know. I
think I !lily say that almost every court of com
mon pleas in the State has adjudicated upon it.
It has bees before the relprento court in many ca.l
rev, a few of which I will mention: Mershon vs
Baldriclge, 7th Walls, 546; Garhatt vs Dickson,:
I 13arr, 22411 Xiirgaly vs the School 2 Barr. 28; :
Wiliam vs I,e'sristown, I Watt. &Sergeant, 429.
In which cares, the validity of elections, the col,'
,lection of taxes and the important matter under I
the law, were settled by this court. It may be i
laid, that its constitutionality was never directivt,
put as a pint to the court. • But why? ebcause
c o body, either lawyer or ju gs, doubted its coin',
itutionality. Thar of Oeohf to my opinion might
to . prevent this court from doctoring a similar law
unconstitutional, inasmuch as it must of areal.
arty raise a reasonable doubt at least in the minds
of any man. And when there fa doubt, this
court ought not to declare a law. unconititutionalt
I respect • for the legislature, i n each case, in
my opinion squads the court to forbear.—
-
i Thousands of adoool bourne have been erected,
bI million, of the public treasure c zpended and heavy
lunts collected under the 'school lass. Bat the
principle contended fur by the teamed counsel for
the phi in error will crumble the whole system
into duit and ashes, and prove its ruin. A plead.
fill crop of suits, will arise to fill our courts, with re.
Bard to school property, submit macs and school
house.. Intim law under conaideration, nJ obliga
tory force depends upon the contingency of the
I people by 'their votes at the ballot hoz-discovery to
accept it, Cid so precisely of the school law. Al.
lied by stEnity, in Omar tendency to cleiato, and
Lexalt the Character of the people, one fate Inds!
attend them both. I admire ingenious theories,
but I cannot permit them to overturn public open,
I tan, as wittled and sanctioned i, the long lapse of
years, by our habits, our laws nod ourjudicial his
, heosbr, wisdom is often found among ths man of
, the people and in the general current of thought &
opinion, where it cermet be found in the specula
tions and theories of the Scholiast It may be said,
however that the legislature can pass a supple.
aientaty law, confirming and making sound tht se
rt
impoant and epusiou. laws. , Hot wh o kn o a
that they snit do it: That which is null and veld
in the beginning cannot be made valid, this is a
principle well established- The Legialatore may
passe new law on the subject. A ineiiritt how
ever May believe that the old laws aro constitu•
?and, and that it would ha yielding and abandon.
;~;.
ing their owe powers under the constitution, which
they aro bound to support and 'preserve, if they
rinde the admissions of th t u utean ,,,i ngiowity
by enacting new ones.
Those however, which I have enumerated are
not the worst effrrto which are to follow the mind.
! tcool of the principle contended for4' :Vile
w un d and lobilosdpLical authors ogihe spirt of
laws, asSetlS the propriety-of adopting iutertoo
diste ageoclue, bemuse the legislature, could not
probably know all the
h wishes and rho , people atheistely, and instsnees the eiuse of
the grant of power to elites, and boreoghs. to reg.
uloie their internal earns. But en the plineipal
contended for these laws or ordinances nod cities
and bfroughs, would be of no effect becalm they
were not established, by direct enactment: The
mistake, however is in not perceiving that th e y
- derive their force from the direct enactment of the
I.w making pots and without that would be
nothing. They are the mere agencies to aecsitain
the necessary wants and wishes of the people of
the City or municipality.
But if the principle contended for by
I sustained, the power. of municipalities and ho.
roughs unlit fail. Tho power, howeser, has
been frequently sustained by this court, not only: •
criminally but civilly. layer.,.& Co. es Hill. 3
Yates. 475; Mayer & Co. villason, 4 Balls.,
266; Carlisle es Baker, I Yistes„'47l.
But the principle . about to be established -
Near; open eon(' higher source of eusioyance
end disturbance to the settled law and authorities
of the State. The constitution under which we
sit hero and decide causes derived its origin from
a hits, goal as the our under consideration. In
the old Constitution .of 1799 there weir no priori..
• ion for its amendment, but there c in the pros.
eat constitution. The General Assembly. under
plenary and sovereign power of legiolstionisested
in them by the old constitution which was pre:
eisely the same. as that vested in the legislature,
by the present constitution, enacted a late submit. •
ting the quretion.of calling a convention to a vole
of ttif people. It may ho said however, tbst the
people bine a right to make tbei; constitution,
Undoubtedly they have, and so have they a right ,
to make their laws in the same acnse t A major.'
icy of the people may alter and abolish
.their eon.
caution and their Incas , bee they must do it fie
lding_ to the constitution, or it wilt be resole.
ion.
Now the 'old constitution,gave to lila legislature
no power whatever on the oulject except whatwas
contained in the clone. "The lecithins° . pow., r
of rho commonwealth shall he veated'in a Gal.
era! Aeseenbly."
Roder this power the law submitting the mole
to Oho people was enacted. A majority ofaho
whole people did not vote for a converitton, bid a
majority of the rolie east wero In its favor. Ac..
cordingly a law was enacted, the conveetion eti.d
scudded, and the result of their labots,llas preson
Constitution, way submitted to the poople. A ma.
jority of the people did not vote to adopt it, but a
majority of the voto cast did. The present Con.
emotion, therefore, does not derive its origin from
majority of the citizens, but from a law etch as
the one under.consideration, which provided that
a convention aliould be called upon contlitioniho t
a majority of the citizen& should, at tliti2seneral
election, manifest by a majority of votes col, (for
all had the opportunity of voung,) that they de
sired tt The new Constitution, therefore, hangs
upon the law submitting the question to thopoo.
pie to be decided at the ballot box, and the condi.
thin that a majority of the votes cast, Wes in its
favor. It was vehemently coneendftl et the time
that the legislature had no authority to pass such
a law, and that it was utterly uncomitituttopal.--,
If. then, they bad authority to mete clew for call
ing a convention, dependent upon the contingen
cy that a majority voting desired it, why can they
not ,make a .law propelling as important change
among the people, dependent for its Inking elf.xt
upon the happening of the nine centingenef—
that is a majority of voter! being in its favor.. If
they canner do it in the latter eaten, a rale will be
ettablished which I do not am at present how the
Court could get round, if any person should bring
before them•the validity of any of the alterations
made in the now Constitution. I would not,
without a conviction as clear [tithe unalutdowed
light of the noon day sun, cast a doubt on the
subject by any judicial decision.
I will next consider the argument against the
law, on the round that such laws will convert
the government into a pure democracy, and is,
therefore. Unconstitutional. This is closely al.
lied to the argument I have considered, but tots,
in my mind; earn lees force than its twin - brother.
alontergue. in his Spirit of Lam says, (and I
quote him because he was no friend to democracy) .
that in a cowry of Lberty the legislative powers
should. reside in the whole body of the people, but
as in large States that is imposible, it jal fit
oat
the
people should transact by . their reprenenta
tiers. s The area principle is embodied in oar bill.
of rights, in which it is declared that wall power its
inherent in the people, and that they have a right
io a peaceable manner to apply to those invented
with the powei of government for a redrew of
government, or for other Proper purposes. ! This
; fur.daammtel rule cstabli. ma that the voice nf the
people', ought lobe beard, and when it comes‘froce
a [polarity that it ought to be obeyed. Dui the
legislature may have dinible about the with.. or
wants of the people, nod although in most cases'
they may be able to judge from theit own expert
once, or the petitions and dectingi of the people,
yet on important quotient, when a great change
is proposed, they may desire to know the public
sentiment accurately before imposing a law which
they think wise and prudent upoo,them. and, thee
fore, they provide that it shall go Into effect upon
the contingency of the minds of the people being
• favorable to it as expreseed at the ballot box. 'Phis
is in aid of the bill of right, and in penmance of
in letter and spirit It paste with no prerogative
or function of the legislature, confers no new or
extraneous power can the 'people. Why; then
Amid it no tie within the comp taripy of leg's.
Iroise dimretion?
I base an habitual regard for the distribution Of
poor iu the Coustitution, bat perceive nu infring.
moat of that distribution M this lam I would ,
preserve to every branch or department its just
influence, owl the last that. I would desire to we
/truck would be the just rights of the people.
.7 .
m
will ma deny but what the legislature might pow.
ably Motto the legislature discretion in this respect,
as they might in any other department of legisla
tion, but I will not lemma to them such abuse
for the purpose of founding upon that assumption
an argument against the /air, honest. and . benefi
cial exercise of their powere. The priee which
we pay for our great political blessing', is that the
power wo entrust to our agents may In abused.
But I . wait till such abuse occurs teMro I de.
flounce it. In a pure democracy the. people de.
liberate in mats in a tumultuous anternblage.—
Theypropore, discos and enact the laws., That
is impossible in our Commonwealth. •
'the legislature do notsurrender their power by
the law under consideratifinithey ma modrfr y repeal it,
it, or continue it as they are fit. ,The vote
(ol the people at the ballot box. signi
. fying their wiiis
in relation to the law, in the mode • derided and af
; forded to them by the law itself, has no color of a
pure democracy, era subvenon of Mar represento
I live republican goverment.' ,The law derire's all
its force from the legislature and - :tbe eignatere of
the Como, and parts with nothing that Wont
to these departments. All laws tents their force in
a republic trees the powers of the people, and their
stability from enligtened public opinion. It is there
Pore wise and proper that they should conform to,
I and be , approved by public ontiment.-
And when a considerable change is propowd. in
long establiabed cushio., it is wire and prudent /e..
gislationao consult Politic OpinsOn. Such ear the'
case in regard in the School law, and :such it the
case in the law under consideration. The one is de
signed to elevate, enlighten and corroborate' the
public mind. the other designed to. pdrilv; enlarge,
and adorn the public morals; so as to mate Mapco
ple of the Commonwealth worthy recipients and
ore guardians of the great prieciplea of religious,
moral, and political truth committed to our rare,.
But these monuments to truth; body, rom.-st,i n a
public tristromme, which the legislatiro, with the
assent to the people. have erected, this talon is in.
vo.ed to stoney. But perhaps it this court under
takeko judge ci the mode and manner in whirl[ the
legislature shall exereire its discretion in relation to
I rho public policy of the counter, sod not the result
of thst discreti., upon the rights of indmdtrils. a
stronger appearance of destroying the equibbrnnu
of 'the departments of government may ' be present.
eat than is aliorded'by the law is question. It may
be alleged that•the court atilt alternately become
oligarchy, wtdch invade...ad takes away legrslas
tire discretion, and thus destroy the detaucratic lea
tare of the republican form
Another argument is, that thelaw is unequal red
'OP..es in spot.. But Loch hat been rho manner of
oweLlmcglactiounopt:or.Methne.beginnfeg...!ne stray taw
t t some outlines first, ,as was
elan the law respecting twine tUnning_al larg:t.—
, Poor bodges are cstoblish.) in some counber and
not in others. Alochanicei Le o liw local,
being confined to certaM counties. The law. con.
cernitig Game, are local, embraiing Certain counties,
only, and so are the law. *pectins fithin,v. The'
laWs conferring equity powem on the Courts of
Ctinarnon Pleas ere local and operate in sputa. The
School law la local, the city arid county of
delpnia 'being' excluded, they haying . bore pre',
ously furn ished with a system adapted to their w ids
ea. TV s the iegislature provides Wi Ms and
wfishes of the people of every district as tar sat 411
well as they can. And why abould they ant do an.
Thu !Obits, mancert, wow .and wishes of the pen.
pie "fla. large community are different in ildlerent.
sections. And a wise lawgiver always adepts the
law, as tar as imp be, to the asides am/aroma or
the people. No rigor of laws can fame into emit.,
undbriiiity the habits or wants of the people of did •
(vent beetle., any more than they can. tome Mein
to speak the tame language •or variffilaii at the cone
altar. le our einem of pc.rromrel ell miner elf
ferences produce the generalTharamy, because
there is one superidtenteng Power which regulates
, the whole according to the wants of the pans.
'flue argument that there may be Inequably in 'the
hmount 01 revenue derived !torn the license to sell
spirpurels liquors,. the law may be adopted in one
comity and not to the adjoining one, is net by the
operation el the old law. Coot its 'operation the,
sine thing may and has occurred. in one tempo m
there may be - 000 or no taverns, and in the neat
contigirous one there may be a dozen.. Xhrre.chn.
net be andormtty, for it depends, sailer the old sy•.,
teal, upon the wants andwithei of the people of
the several townships or ward.: If one is, taxed
more than mother il'ia ht its own volostuy act,
'oat turkutabli! 10 . eal law to ItOs stucco( Slot