The Pittsburgh daily gazette. (Pittsburgh, Pa.) 1847-1851, November 10, 1847, Image 1

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MajentymptiarmdelaveireeibyJudge sew.
rarkeeri Lie t coniniairSairk-Ems to the
clout et Qamei &moos of Allegheny County.
"TIM dthrodist below, plaintiff ut emir, Limit'
; bees ~,; (ok od apnea holictensnt,'frimert under
' • the ambf 71h April - 1846, - ,mtitted qui ; se i ~,,,
! : -.001:44 !be . diatair of certaireetuitietsth decide
. ' :ialga-9 , 4 1 0t tito soli ar,oina. ad opithas
was itial be tinned an 'Aid cointies," - th e
. . . pieta nail in thie Court whether the Ad,is,
iti ori
In tub,: , 'et binding facet ' , ,
It lito be ttcd that this way. grave cleat'.
bu
• 1 Woad mq dis it it presented to us, le WM
,' .. ' - Wren whit question--ofpnblie Mona which his
: . Mad the Weird eceqpied the wade of the.
' 1 ' giger ec io . with such intermit, of fedieg, se
wokea it It :thilicinsider my poposithe,
sinty'constected with it, irrieference
' '• lif Its bbstitht more alone.' In approaching the
\
disoissieci 4 wi th a pliplition, the mind le al
' Mill involuntarily drawn to contemplate theatre
.' Ulnae; whieh attire philanthropy baa. libido
a few years; effecip in the, social- abbe of, om_.
02... widely spread community, 'sn4 theraptrei
a
t septedr MI duink from •dm 'discharge of a task
imposed by the deepest Woe of duty, loathe ire.-
ids M his lotrestiptirmithipheven incidentally,
- Check the Opiate( pirate and public bosom
most • But *ash the Point psecnted for did
then is hlglify ilDpffilli; Mouldered Wilily in Its
easineetkon' with the sitbjeet I ham alluded to, it
.becornsiot infinitely vaster committals wan it is
'Coupirdsd as a questice: .th political plaaphy,
- ifetiMig from, the polarities of our =WI or
trotoutuot; . la goo aspect, it is intimately tem
.2_ tined With the pr operstionypon society of
.the written Conataition, not only of. this Com
, asanwealth,bat of may other fame ores Coaled.
7•=7.1: Adishirit fax **id any die* =dm'.
Aif leg elation, it embraces the whole range of to
pics that may fall - under legislative coptiasem,
• end, an it may be: aubled„ - reetreins or immessur.
: , ably - milerges the manlier in. which the legislative
power may be eforcbsd.. Such is the mums and
- ' dohs of the subject to - Which oar saran has ,
been booked. • ; _liegenliog it se perhaps the mist
- important seer presented ter siljadleitlon beithin. l
ioleisei Pinellas that whiffs ttietsol.ee with
great negency.te the inteieW of rimy member of
society, we hareatisideled Wunder a lively seas
~( 4 et• nePoisMilitY which, even in ordinary int
stitici4micia. upon an migMiyinto the Goo:
-.stitubonal,mloci of the legislatimbody, but which
. is laijadj Miasma by the , character end ponark
' nimlnfot the pie's:a hyrestlpsion... .. ----,
17hWushis or the Ma k& dartat:the damn.
.
mat - o...Peararybranialend on. of fortuneSted
powers. , •'Still it is iv soverstess a of liMited, gas
' thofidt esdir to, therefore; not to brdanied that
the action Of -benzins:us toy be Media, thaugh:
' lt imirMelmhirupeen psortdm of. tife tthasti.:
=ion, lilt be in violation of tha scathe( that in:
scromobb end ihapenhis of the pablis institutions
drigoedo be*Citild Ail it. 11341114. it isthleeps.
• thee oftheldiods laud= that is mos lobe famed
• ; end sfardcdspais than direct Steam spit any
partisan prindple'pthelithad as a Part of the
pannadial law . for sample of the hum dererip,
,- lion will, gaumaliy,limet by latent rsprobethm,
while theetasithy soul fiegiatti7 maw= 8 4 ,8 *
~ war of the Sauter is apt So setsPOdetaadd." dr.'
til:lhe-hassition anima wistilfest" by' the bite.'
. UM 'of soowf.etatifing Mong. -Putting net el
, view,.as forAlit posit.is.the-pOtals _efint of
' - the set: which giver see to lisnenapfsfey,•• lest
' .we be sided by the lildfitOrkM - ' ' ' 4 l'i
sins and
. Ishireestng ourselves to ~rissor
,• 'oi •
which insets equally applicable tan , slailer in.
stances ofleallative ectionots' pin; . ••• ' wheth
. • sr them hu halt each en -'. • - • • f 4 0 1 the
..:',•"•Coassitatiim'of an State oath* ' - • pas
,WI oysters Stated by it, me halls • the loterpg..
• • 'Mai of this tsar. ,la dons so. are isms;
only. lid into an cuunlatitia of.the - , - a of
ens eyeless of 'civil , polity end•ja• •••- Sind
. the eta and dist of the *dean ' • • •
faro Sent
. ' chafed with the Important pit of - ' •• antis
•' -
The Salami pages of =Colonial •• ' • slow
‘,.- - dist fees the beginning, the pfinr. • - *feint and
• *.
political libmiy, were side:food and .. ," -• hy
thous who planted the pim of 'OM • • acidity In"
, /this ostnaty: , •• It is tin, that school • , • g all..
• , dhafarto ls %march eta .satess - - to a for
eign petiiMeleet. to Whietr,they - '-.
--. . :the
- far ileetieViheiterii, ,the •—• : and • sb...
-
salute sothodty 'Wass it is. • ''. ems Wilds
Isibbimb is Mote** . Glii•dtd • • farmal7;
'''''hislatiir spielinrSsroat Atiat sit' • • or amines
from t h e raids. But, practically; ' all the put
poses of internal rule, th is principle ato s great
1 extuth wad upos. The form ofgovernment in
4 the menial ecdoniesnly soon Slaved selfinto the
system efleaidetion ; by spats si by the
;
• peopisto whom a liberal right of was so
cordsd, and do* vox suir Po li tical ' dons
' slaws inemehere, sauced the of a
, ' .spomentsdoe demosecy. The Ame can_Reio.
blirsi introduced • new feature into 'deice of
. ;:gotattheat, before speculated upon by 'Owns%
bat tbeci,,the the fits time, fonslly, and solernaly
. annotmese so constituting an important element
~
-ha the political's:sinus/on of a Nation.- It is,
~- 6 theisnstieke art= 'MU bill Of fish* ii this
's. respect bat en echo Spas decMistiors: that • all
pews is litheirrit in the Issas. da an free gor.
':-`, - mnmate are bonded on their notinity,endinsil- ,
sited for their , peace, Mae sad happlosse But
: though it hie thiteprialainied that the tomato
power sided in the kayo( the people, and that '
the ally legitimate end of Government is the pro.
.:: wan of 'their wolf's; the star imPrecticsbility
: . o(. personal end immedis• 1121111:11* of thin pert
wr, by then in the adosinistfationaf the 'affsha• of
taretusenslorb4 the idea of a pars demossey.
a form of civil tole an exist in a civilised
udLamofty . dwindle. se is well observed ' by' an
sate wrher on Ws !Ojos; ulna the limits of a
Beatesee so coatined that the people eon afessade
- • - - ims Asses miYhri requisite teethe idmisisratimi
dabs *bin imams nosolawy part of the titste.
but Melt athatiimzettamthoo small popalatioa to
- •pletels *Self Whit the badge denim walnuts
- of pasofful at angiticeikAibbas or too man a
:1
terribly Meow:is the Somber , of iti shags,
••-'• - rither et which' Cifiallitentaf .inen sally .
•• ' "endanger its Safeqind hslependfons widely,
unaided mastery Sid' nozooroos ens,
:'', atrial ass in the only dap of the. W 4. tO,
' • -::: pat Ode Ample font Of , ennhasstioa ' Of the,
i
~ ' • - sysilres".. Dot had theta man Maps.
r ' ohm inpont*objeet!otAiould ham a .
,d
to seine the lassodistreseiciesti 1
. ,
,• Aim washy bi the nosafolf, the rionsinaty " I
', tilrocel ett dyriubjeci4Soas thaloale de
timed thissatesuily usioedala • ls floonseast •
•• • . setrwripepasigfifkuM lediedbythiiiiitemtna
of spids 'efin hi innesannstimsdointl*
'`• koliosthssiolostansmstions to whinpaprause.
_1 • essadee are inakiiitly;SPawd;osisdal when
moth* noloi lb, blfilMON of itaty.sootrinilatitod
' hy,the sedsclionis of factifeselognom and artful
affdastlcei• "difflf. sot impowarility,,d as
•• ~. ass* sod issultatiocs and Sham elk the Ins.
:,,,, NinestAssigif that, Mile alyermsdie HMS of
naponelhaitY'olo 'MSc' piarontsior andel las.
• '
Use, the Add of Ate fddefill would be diwegar.
' '..• aokby 8 theketti etibiad:eitltagralilleathat of
' ' • F, 7 it. mei dare or the adsnoomers of ire ponslin
.• ' ',, atiehms ,: . ro aikestibir.4 o9 O l imstifirov•
orotoire.'iztesolit!*timitr bid act cashed the
pada attention, of which the pan 'Moan of
•• ,
that day ins ample , eddence.. -Is proofof *is,
' '• .` it any be au dent to. Sean foil, KG Madhya;
i.lll-, lobos esdighweed predilection fir_ peptide I/ igd‘ r
WM* frill one be. qttestioned.,,,l itnicoursi of
•` ''• thi,dobsteeonrif.C.E.4M l •Gooititokit•itt Me
Tiqpnia'Couvention, be renstisd. Mild Ws:
' • , Imo, videims - siid ibtas of power by the toitto.
." ••-` tilfaisptittson the liettecutbridadidr: hen
Prodstfd Wks/ wad coinsotionc.ena Mos; in
14111111110,6•11eeflomso404inrwsv aitiii.aa.,
• - Isearpsafand defpotisse- And , seelalmf Pb. '
A 'masitotif art po into %inhale aletirforansist 1
"i•end Warn flipadmins shell ,11sEthiii deSrpo..
tits to hisisieraly-reinited heir chimaera:
'.,- -If midst thsponahasitestnnof the Mast
,^••• • • Otstessed ••ao to thimara f, mot Mi A/SSW it
ii.,..swithsst Which pendia is inhabitentliwoodall:
1 1W Vest 4 11wPrie detdortallinatddi hey ,
• - •dds4 - o ,l3 didikapris tiiikit)Tris.igtaitrely
prodottod.brtekoo"._ - This i nsisitao
orsedon of thirponalini iiiraisest. lyres* ,
: -••.-V , . desofisrad iti thesdttillthawritsa Cocslttaleas
premod fry 41M ensistAtatse of the Citateden
.....,'•'"•• ''' selasmddioCttri resanasSy: . .ta Sale In thi •
-• :;•,' _, 4asisinti,piaide.ito isoittiooty . thoniwel.eithS,
-•-- •:,F, forpsisoly Or. by. notioary imp kitten, •oinfiset to
•.",-"• " '• the foltstdstudont.of.fho CnostitsaMohe moil;
.. •••.: 1 , , , km* ititlefess:the - sYnardon , of the
. shinsw.
', -, •,- %•-', at isjsrassititni! thir choloSit,,siblic sersate:.
TOOf. contitty.frosi.mbini..n*Ws.oei lis.,
• ' ,•,-• • iSepoSod she wig' our lambs sortlic
....a. I, ctoti,ipdlolie atria iirtioirritisuomot,
--.- ia - i. etrio t ooioy,tititbittbillitittosti.aola lis b.
.;4stoootthS tents -mid' it , ii.sseerSd one natuns,
•- • ;solifistorithicit tier Sim, ~ Dug with - no:lbri ini
' . 'f'• trtudiaw af•sithst, Ott* messicalAioned by"
' • •,'-': 401 - •pmfai thereeetrse bar siteldand,. a • marked
• diflieStolshitirtien thezindednite and ;Stilitsged
mitiintalininiiinimit .....,..Islii.
wino admit. ad limited pawn it the
~ , hisai t hinboroliaes• IP Awed et 160:4 1, inatra
:-',' . 'la le affermarY foe the
,taskingnl am:
MagatsCto,tbe lelecteCapate of mw,.
• ''
' , ' • ' 11101- .ft•Ildld bsemeima,th tits riodet'itos inflow 1
- , •
pelted all* tiffs: batiritt* USN. Tele vhsen
:•;•:.-weielisesontlel to tha4Sy exhlcons Of that Com:
• ; „ •••• '• 4• A Uw• li e - siss mats fatal la the inetrisint by
: • ..,, -, I .4, l ooBain*trik*.„, :ffhi*Kr lo : Ocsikto 4 o*
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PRICE ! SEVEN': DOLLARS
t .
:-:,:',:..:•.-,.:.:!:-'.!:;.'.--..,.'..-':.;.:.::',-:.':;:••:.','-.•
powers defined, and their extent limited. the distie
of this Publie functiowried prescribed, Mil the
pelneiples secwdiog to.which the government is
to be isimastered, delineated. (Pauses Rights of
Mao, pan I, p 49) or In the language of Judge .
Perialpriiiirettiant as eloquent (2 Datl, 208) . .ft
is the fens of porenimeist delineated by the web.
iy bald of o h . people. in'which certain fiat ps in-
Oitlet 0 fandetnthlal bars ate estibinhed. , Thu
Constitutiou if certain end toed; it' contains the
pitmen:We wind' the people, end is the supreme
low of the land; it a paramount to thit power lof
the Widow% and'can be revoked or altetedlooly
bill* authority that nude it. The life going
prinel;the and the death doing stroke mrst,,pto
ceed lOXII the same hands." Until aon .irerges
told by this authority, it is obligatory on que,
people themaelver ' and legislatures, kid= ire
merely its creature., most content to i.e Aeir
acts will be void. Every thing dow,lir maim
election of its principles is an els of usarpolion
which, uncorrect ed, tends directly 'less over
throw. ' I
- Mindful of the inetitutkuishf the mating and
following the'example let by the Federal coon
union the people of . Pennsylvania when ordain
ing sad enabilishing a fundamental law for the
sovernment of the Commonwealth, decreed that
the lesistative power shell be vested in s general
samobly, to emsist of a Senate and Homo of
Reputantativo, to be elected at stated periods by
the eititelA of the IlepeCtiTe Counties. :They.
thus solemnly and emphatically divested them-
Mead all sight, directly, to make or declare the
law ce it interfere with the ordinary kg:elation of
the State, otherwise than in the manner pointed
out In Att. ax, See. use which declass vibe cal,
ma hoe a night in 'peaceable manner to some•
ble together foe their common good, and to apey
to those fnneted with the power of Chneroment
for rubs= of grimmer or other pops= 1 1 Pe•
titian, address or nroxineloomo" nos Promon
which found a place In the Constitution of 1790,
is mitsrsted • and re-established by the amended
DotWitution Af lat. adopted by e Ma of the
whole pe4di, thee conclusively showing that the
evened= f nearly half •a century bed work
ed no =ea Jute neatkenent Much lodged the
legithitive a Welty, of , the commonweillth, a see
baled end re bla belies of Wen. /14 1, 10 to the
animadvers of their constituents. as the , only .
safe ' of this potion of the sovereign
power. Mt re , to Interfere no Anther with the
regulated of them lobo than in the mode
thus ex reserved, by the right of selectai
the delegates og them and through the in
fluence which inevitably flows from enlightened
public &Mont* & temperately express.
ed. the t to {nod spinet an abuse of
the high poor they ted delegated, by provkling
a specific-mode of election of members of the
Serrate and lions of Repnentatives ; by piescei
bing theseepardlcathics ; by stipulating We teper•
ate and iedepiedant anon of the tyro chambers;
by in spimg to the axwelsitee isi the oath or af
firmation exacted from soh member to supped the
coestitanic of the Commonwealth and to perform
the duties of his Once with fidelity, and by mu
tual:lg ott the chief Execceivo ht *gloom the
prooptive of the veto, desisted for the correction
of hasty and boxisidatata legislation. The spv
tem so established in system of checks and bet.
same, seeking safety in the declared respowibil.
icy of the` individual spat and this guardian
=adenines, of the moan= breaches. The
malt= care onadd•by thews who devised It, to
hedge anima with dahmees against the snacks
of popalas delusion and Mor from without, and
to pod it spinet falthlosases and corruption
born within, O visible ik almost cry kW of the
instrument, that delineates it , '
The authority codured is in its notation, of the
I greatest dallmity and delicacy refining, fregoent.
lye in its umths nicest dinosaurian= of cultive
[ tad sod dieciptined, • intellect, sad so its:mice in.
gleam upot the Interests of the community, toe
wed or foe woe, =mot be melstat, it has been'
I wisely lodged whim amylase taught it mold
be most safely end conveniently exerted. ".
To Exercise the power of looking laws delega.
tad to the r-leitoi Afoobil. Omit so much the I
privilege:of that body u it le its dory wheroares
the good of the commouty calls for kcialatini se
non. No MID is bound, under the Constitution,
to. accept the office of a legislator but he who
does so mere cannot, rightfully, avoid the obli
gations it imposes e or ad• the Constitutional
tesponsibilities so it. As has been well
xecurkedolie t Is entitled' tot only to
the induces and fidelity of his representative, but
to his judgment almost ell that relate to the bu
siness of public , legbdatkin, Among the prima
axioms of judepodence, penned and municipal,
is to be found the ptinciple that en anent, antes
expressly empowered, cannot transfer his &lege.
tad authority, to umber, more opecialli whot it
rests m a mallow; partaking the nature of a
tout and requires forit due diet:huge, 'iodinated.
lug knowledge, and' i lectitude. The motor le
&legato polestar nmi ,042. tat deligari. idled what
abut be mid to be • nigher non. hemett upon a
broader confidence Men the , posostion of the leg.
Waive function? What task= be imposed on
tun, ea a member of Society, 'equities a deeper
knowledge and a purer honesty ! It Is a duty
which cannot, therefore, be , treneforred by the
onenentative, no, net even to • the preemie thew
otos, for they have forbidden it by the sole=
expression of their will that nut legislative power
shall be mad in the Cameral Assembly , much
less can it be nefutmlisted to a pert= of the
people who cannot even claim to be the exclusive
depoeitoriee of that port of the . Sovereignty to
booed by the whole community. An attempt to
do so would best only to dassegard the conatitu-
I noted inhibition, bat tend directly to Impress upon
Ithe body of the State thews racial diseases thattme
always molted in Ms death of repatame, and to
amid which the scheme of a repromultive de.
moosty • was doh= and is to bs fostered. iA.
theta coca permed a governman, in a tomato
Latin,: ot the decrees of ire Senate were
subject to the supervision of the popular alum•
blies of the citizens who, by progreesive inuova.
Lions, entirely changed the name of the =wink
dee sod Introduced corzuption, snatchy and final
dea/notion. The people of this courootocahh.
I repeat, hue moved to themselves the right to
alter or abolish and r econstruct the political fs
brick and map thus, umme, if they,pleats, the
direct control of oaks ty legbdation. • But in the
pear= Monad weidtelion of polities! Scones
and recurring to the osmium of the put, it Is
not lo be premornsd they will , ever do so. Yet
wore thls'othenlint, It is not for their Somata to
Wiciptlei the expression of such a will. The
great question In this came*, did the legislature
of 11146 fell into this enrol The proper solution
of this miestins will be best destoina by • an ,
inequity Into the native of Municipal laws and
seperbaninlibow fa Moja! of Amembly under
prim square with the dash/21 1 4 such bor.
Municipal law, I. declared to be rule of civil i
conduct prescribed by the I-' IA flown: which.
In England If tailed spew •maWing Mot
te right, and probilaing what ' is limos. It is
'cured a rider says the peat English comments.
tor, era: &tinged& it from Moo or counsel,
whirl we are at liberty to follow, or not,u as see
proper end topodge upon the neeketablew or un
retiamarism of.the thing advised, whoote, our
Meatus to his law depends not upon Mr *pro
beam bat niem the makes will; counsel is may
=ha of permeletthlso Is cutter of injunction;
roamed Me only bathe willing, tot law upon the
unwilling eke- This definition of a law is es
Melly. moos applied under our Inaltutims, es it
is In unkat Emus, with the .Ingle tordifmathst
that bete, the Makers wilt k subordinate to con.
Promsieiu
• Toy early period laths Welty of ?atm
ottani*, laws have bow eructed directing public
Meet of entertainment, to be Deemed with
the privilege of retailing spiritual liquors and oth
er briorleating drake - Thwei weer attend and
nexlified Irons Heap time, Until try then:Sof 1 lth
Meth len, whicli supplied and repraled preview
etmenseents on the ass subject, he several mute
of Queer Seesions and Mays '. , Coons within
the theemonnehh, woe empowend to gout li
ken= ter foe= trebstse, to Paso= teirillek , 67,
die POW ado certain Ileatrithohechri fflatkii° o4
and the sappkmaotal act of SIM March, 1841.
merle provision for the punistultainf any person
conioted of Meiling Onolle or Miriam liquors,
by Yee mums than one quart at a time. The
eetpf 7th April, HMO, &Mai that every moon
whishall deal to the selling of soy goods, ram:
end ilimilmodiu, t wines. or distilled liquors, of
kcclie 1 4010 % 11 ' 0 r achufw ftui t ii "P l ' igeh as"'
quiffby licamod sentklame and by Brained loon
!Mem, shall take out • license for vending such
Neg. merchandise or liquors, from the treemer
a the pageireity or minty. Thm comes the act
01 1840, which gives rise to the present cameo/1-
sy. It prolamin substance, that it , shall be, law•
ful for me calicos of the seamtal boloughs, wards
sail townshippse in tot= counties, named, Jetta ,
eke
-1,414 Or anne aleLltildosa'anillegottrio3=han tone.
I °IS 052 ° to deelde il flair votes, whether' or
nat the letle of IliteMle and slantwise ligllttre
Amid be ponitted among aim fin the =are
yeat; that wbetwera In any of the Mil borouPs,
wads or townetdps there MAU be a nisio uol titif
votes napinattie watiof limins," the of
Quartet heeattle abiellntris for the ouringt.ty i
t o.
t gtant-liremee a eny leer ne wan, net the win.
`ter of 0 0 4 ° 04 7 illae If Name irow rots of
111i 1 0, 1,41 .ta iic !iiii;ajd• -0 ( via Bie al
...;4 - 15' •,-- .4 -t, t ' :
liquor. within mid boroughs, ward. signownship
fsr end -year: that if any person in said Wrought!,
wards, and toweghipeotiould ,within one year, sell
and distiver or muse to be weld and.delivered• Ley
- .Monk or spirituous !loners to any person, opt
ao in the achr,stich persons* wiling chill
be llolo tel be indicted and on conviction, forfeit!'
end Fes,, not lese than twenty nor more than one
hundred dolling bat if any of the borough.;
wards and 'townships, in , the said county, shall by
a .majority of vete.; decide "for c e wile of liquors."
then the low* in force reigUillillg the Wiriness of
of inns and talents and retailer. of foreign goods,
and merchabdizaLueloding liquors, shall remain in
forcess if die act bad'not been pissed. From the
aummere, of its katures, it will be perceived this
act of the. Geared Assembly, whether considered
IM an enactment Of new and substantive proligions,
or as a statute of repeal, abrogating existing , lane,
depends foe its validity &binding (Morey; within
the wend quainter named in it. 'menthe popular
gore of designand'ilistrieig. ; 'Without this affirm.
' atieely expregred,it ill inert.. Pow:mien no in•
nate force, it remains a dead leatili, - until breathed
upon by the people and called into activity by an
exertion of their -voice in„thcse primare ,sresetre
blies.: Until then, it prohibits no act, 'creates no
offence, points out no mode of trial, flies no pen
. ally.nnd when no biddeti into life, its existence as
a rule of. action, la limited -to the btief period of
a single year,
note= new enemy be engin infused
through thereedium of the ballot box.. t If 'a ma,
jerky within the particular distriet,MouldXele ne•
natively upon the question. rattly, to be subMitted
to the people, the act, as a stands has no ex.
lentos. It ts not to bedertmed,k law within the
Markt, Wheiirereli a gine incast: lrintajorit) ,
of votes be cast in the:affirmative then the get ts
to lake effect as a statute, retebib4 l .4
and repealing :the old.' operates
rinere but if at all, natty by virtue cif a mandate
expressed suhreqeently to it. coactment,ie Pend.
ants of an invitation given by the legislative boo
dies. As It left the halls of legielation. It wag kn.
'perfect and unfinished for it lacked the qualities of
command and pobibition absolutely essential io
every law. We have seen there can be no such
thing as a law unities it be mandatory and oblige.
tory upon there who ate to be the subjects of it,
by a declaration of the' legislative will. From
whence does the act of 1846, derive this mandato
ind obligatory character. Not from the Legialai.
nue, for in the day of its enactment it powered It
not." If it his the 'character, at all it mast have
teem'eonfered by the fiat of a'portion of the pee,
-ple expressed through their votes. But the popu-'
tar decree can only have worked this efioct
cause the retreats voting were in some any,
&died with the power of ordinary legislation.—
Now it =Out be pretended they perseared this
power cullers they drew it from the invitation to
declare their will by an exercise of the - elective
franchise. But if so,rehat is this other than a del•
nation of the legislative franchise, by an act of
the general Areccoblyl Dot, as - ties been shown,
this body wag altogether incompetent to make such
a wafer. /a delivering the judgment of the
Court of Errors and appeals of the Mate -of Del.
aware, in • foe in all respects like the pregent,--
Chief Juwite Booth recaukal, "The absurd spec.
reds of a Ouveenor referring it to a popular vote
whether a criminal convicted of a capital offence,
aboisld be pinioned ye executed,' woo ki be the sob
jest of anivental ridicule, and wee, aCourt ofJus
tice.icultial of deciding &cue themselies, to di
rect the Pqothotiatin to miter judgment for
the plaintiff et defendant, according to the pop•
aloe vote of 'll - Comity, the community would be,
disgusted with the Telly; iejustice and iniquity o
the proceeding." And yet these benches of
the Government derive their authority from thef
mime nous:min which woofers the power of leek.
lotion upon the geuern Assembly, and ire not
moms elrouglir.ratied by its terms, than is tt!
latter body. froutoliving their duties and rea
pandbilittes upon Men. Bet neither of these de
• pal:resents con absolve Welt of the tank appropri ,
ate to it, by aubstituting other. not called to li.
discharge by the Constitution. None of them can
legally invite the people to .exerchis a function
which the Constitution mates the peculiar buti.
-peas of melee-led Wire of penrone and - thereto,.
in effect denies ts 'everi other person. Nor can
they call to their aid the miss of the community,
except. n the Mikes prescribed out by the frinda
.
:TO portrait either of those cowries would be to
loonothe bold of society open its greatest safety,
reniumg all accountability, and thug eubjeet
ing the minority to the uoreursioed decisions of
irresponsible and Bw-tasting anjoritirs. to the
present
_instance the g. proposed by the act of
Assembly may blind the unnllectiog to the %tin.
Mate consequences of the false principle upon
Which it proceeds, but the most indifferent and
16°68e/want
. cannot but be Startled by the refec
non that it is a principle capable of tmiversal op.
station in the business of legislatioo, and may be
in the end employed to procure the establiahment
al laws which a-responsible legislature would not
dare to enact. For an assembly of two Waddles
designed to hold each other in check, the smaller
bed being com Pured of members of in age great.
er than that required to give the right of suffrage,
and the proceedings o f both Object to the yob of
an executive officer of still more matured years
than the Benefit, rut be substituted t; mare of vo
ters of every variety of Menial capacity end train
log, many of whohi may have barely come I
the legal ago of 21 year*, frauwhose decision no
apneal nu bat to themselves, and whose action
is object to no ram - --
-- ,
Before MA adoption of the constitution of 1790
great danger, Of inconvenience and 'injury _wan
I Mond to proceed - from the exercise of the legislae
tive ftmcdon by a single house of representatives.
This lies remedied by the erection of two co onli.
senate houses, in Ingestion of the British Parliament
and of Bongoes, under to. federal constitution.
The example bee, I belie re; been • followed by
every state of the confederacy; thus giving the
universal assent, to a , systens which long experi•
coca has toted, as necessary to prevent 'nob, in
considerate_ and unjust legislatiors. ' Bat if the'
two houses can Mutt themselves of their afficeof
liwUnakers and devolve it upon the body of the
peopl4whateectuity have we spinet the passage
of Iswe,perhaps well meant, tenable to be glu..
ingly.wmag because incensidersdely adopted/ and
what cheek la left as eition bury and ill advised
sod, opou to be influenced and unguided by in•
termed, cunning or blind fanaticism!, .If . the
practice be sanctioned there may - follow a train of
experiments which - animated at some : ' point of
their Frage:se, mesterei in
.the foal outthrote of
the consul atiec. , - Evety_case . of _deabtful pmPrio.
- Will be referred. to the faint. of a ballot, and
acts of Aseemble,sal jot to the popular vote, will
be.yielded to unthinking ilatIlor: or partisan Ito
prounity, by faithless legislators anxiou to escape
the responaddlity of their position. ,
' Ilia insisted, heirever, that the legislator when]
couterighting Impottant chaugei ierthe existing
law, bas not only a right to edition the ripinional
and wiatesof the constituent, but ouitalo do 111 - 1
klaiMUCh as In a country of free 'initimOcuti the
only sietunty foe the stibilitY of the law „Is that it
rests the apProbation of those who ate the sub
jots of It., This Is not denied; and , is troth, in
the practical working of our system such
ways the case. But the public opittion when as.
entailed mud be adapted by, the legislator° in
the form of a statute before it can have the forte
of a lew; for,l regsat,,to give to legislative scrimp
this effect, it most hairy art exptesinob of the le.
;Waive will
Matitis urged thit 612ov:des of legislation,' ,
if Bean with propriety be so called, het been Its.
- g idinated by. the tubbed° of erne; obtaining
without complaint Of - objetßehl, and in prim( ol_
thitintir intention has been ,called triOrveral:
aanees la which - the action of ,tho general !stem. I
bly le *meld le bear _a near resemblance to
that which (mak the *Mimi of roor enquiry- -
Wens this so, it might make at farther , pause and
titan:tate a. arrive ut a couclasioa, adverse toithe
validity of the Whir impeached in this cue, but
it would not" - jutiflits in declining to give ex
premien to the conclusion Hit clearly appears that
the legirdallso has inure:ended its legitimate au:
Merit). A bail precident ail:fared to pus rub
I iikisiai.aumot be setup hljostifythe Continuance
of an abase P 11,11,11 it prigamted, and this is es.
pecially true:where. the questionis of the camel.
Unice:tat exertion of • delegated power. A differ
ent role would expiate the fundamental lamed
the Ode to continua demos- of subversion from a
succeulon of encroachments, which In the begin
ping, did not Quiet the public attention or invite
lovertgatioa; a erinsequence too momentous to
ba hazarded by unreasonable deference to talon.
1 led mistakes.' la missions of mere property, an
istuanate error, which by repetition has attained
to the dignity ofa rule, may be tolerated because
an attempt to correct it would igenenilly be pro.
deeded of More mischl.4 than will be worked , by
itaconinuance. %death an argument can hale
place tabus the error commitiod lotiehes with
the Boger of em:ding wrong the political organ.
izatko of a state and threatens its ekistence. In
such a ease the duty of preserving the constitution
I in tact le paramount to ever 6 other, and Weapon.
tars of veteran. abuses, as imperatively' calls for
the etedkation of the canker, that the judiciary
which_ should shtick from applying the aPPloPti•
amiconectio weal. i,dl justly chargeable with a
Vogl Orektetioi of duty" • '- .
"Bet I ipmetiMaMat,mith pubspa the slap.
dads& desiSt.Mitiaca o 1 very modern
'1 ‘•
-1
PITI'SB ."WF,iINESDA.t,_ MORNING,
origin, no each sturlding bleck lies in the path of t levy a tax, by vote or i of is' in itself an
e
the pnEsent iuseitigstioo. i
Even a cursory glormis e ereisiot the legislative power. But here au
it the Atatutiss - Citedlsill 'suffire to show' that ll) ' -o vimua distinction is; to be °brined. A law
plinciple, - as in feature; they are tetchy unlike - the designating the permits, or bodice of persons, by
act of 1846. .And first, the counsel for the . orm whom a tax may be iimmed, lied the mode in
which it shall be collected - ruid.distributed. re
mourealth have pointed to a sup peiveiranalogy
!ead,Ung . jet Th e cer , o , e r cnee r o , pe r. corfa untieo. genres the authority of the comititut r ioeul Inw
clothed w ith t h e power o f fos ki o , b ,..4,,,, r,,, makes; for it is a rule of action prelim bee . Dist
!the rendect of its concerns and , th e government the act of the designated person. or bod ice
law
ton
It is argoe'd that this is legate. pends, bens authority,.alrogetbm . ei t tan
i t i h w e a l .,-
non by'shine of an authority delegated 11 the commanding or permitting it. Lit
leguilati;ip . Power; a eight orbit!' hoe not only pass. no .. us tarnished by nor statute book of this do
. • , - - a ction, may be mentioned the laws empower.
ed,unqueehoned, but. received the canto/ el'Pre " (s ecret) , o renn a c i onem an d s u p erv i so rs of
I e ' lleithhthen" in "'nen" of the Commonwealth ownships to apply and , levy tues -for county I
es piquet. (2_Y.403.1 where. it was decided Mut
, find Winship purposes, respectively. In these
an setef "' g
m ' eth P e w erth il t h e ee r l eththen "' Cases, deliberation, judgment and discretion are
Philadelphia to pm ordinances to pit:vent pentane
'.`from erecting wooden buildings within certain to he employed, end there ire. minty points to
he deterinined; but the eft:hi to determine is de
dhltricts,of the city, was conentutional. Bat the rived
y front the stututm, Kai tilts is p verydiffer-I
lirioacticitt . usurped by the Commonwealth is booed eat right from that sought to be drawn from a
'upon an entire misapprehension of -the nature of c,onceesion of power to enact a penal statute mi
-1 the right Le Mike -ordinance.: a right ,which be der which the citizen may he indicted and pea
said to be nectsamily. incidentio every,cotporation - ithed. In respect to the vote to be taken, which,'
i • 01 11 ego"' By 10.. , whe th er enacted' in pun , -, a. I have said, Is in effect but to agree or die.
lalma amine. authority given by charter or with- icree to the proposed tax, the school districts
oat ft, are no more than's species of contract he- May be atedmilated to on aggregate corporation.
! wren the individual member., sod in the cam - of which, may le . vy a tax upon Itamenitim to meet
l'lntutterpal comiretions; may' be 'extended to a iiiiponite exigenciee but thin must be by virtue
' stranger who comes voluntarily within the jurit• of the charter or act of incorporation. The
th dis-
, diction, . upon e. priociple that his coming is eimilarity between such an ; an eXpreaSion of assent
1 equivalent. as mint to be bound by the load and that which nos bronghtthe plait:nit - filo error
1 law of the phice..."Rnles," says Mr Kyil in hie into the position ofn criminal, to en obviom, thin
treatise on CorponitiOnl, "which erste direct the it is unucceeiary further- to elaborate the argil.
general conduct, moat be established by a me- Meat °pea this point.
ic ,, b7 o f t h...q11. o f t h e w h o l e , , corrimoo ii, or by tt it this
p oint. urged that the act of Assem-
Wy in question is to be regarded, not as an att .
the' resolutions of a !select body to whom the
delegating the power of legielation, but as a con
. whole community have delegated the' legisla tive ditimal statute, to take it&ot or be void upon
authority.. Thom gerund tales
:A - lb . °, Inhabitant. of a entin when applied to
try ~. United, or the happening of a contingencypointed out in the
;r h o , not itself._ That thelegialathre may enact laws
indeeendent government arrive:died lawn
to take effect or expire at same future time, or
Applied -to subordinate . ranntellnitiell.. they coo to
future event, in not to-be &Med. Our
tailed private indium.., or by.lawe. All by
lism! have their obligation from the mounts citb,..or nrte n ntion has been called to an instance of this
kind, which, as it is eupPesed, proves the simply
'er,,,lP,weer„,ei im plied ,,„, ,71.,,the parties
c, w ,,_ he Ore ,„, to , "; conditional character of the act of 1846. It is
"" n "" "J them, """ ""e""''' ever) theth "'"' rth found in thelegielation of Congress, prohibiting
a corporation Is bound by the blye lowa of the the introduction of British and Frenchgoode into
carporatioa_ without exp.o notice of them, nor the Dented Staten, ante. these nations would,
in " a n eijeethei to - his betog henna -b y e l" , reepectively, modify their ed:cte interfering with
Pautcel" bye law that he wan net • teelni"r at 'Metre! commerce. The first of these acts was
the time it win, made."' In the cue of the city paused in Much, 1809, and was limited to expire
of London vs Wood, rid Mod. 686.] cited by the On the last day of the then next onion of
Cominonwealth. Lord eh J. Ilolt remarked that C.:lngres. On the Ent of May, 1810, Con
e citY is to be considered "" a greet community gnu passed another act declaring that if ei
that have a legislative tom entrusted to them for thcr Great Britain or France should repeal
their better government, and can make law. to or modify her edicts an that they eliould
bind !the property of those thee live' within that, cease to violate the nentral commerce of the
precinct, and also of all dangers 'whatsoever that United States, the-President should proclaim the
come within the limits of their jurisdiiont and It fact ; and in the event of the other nation not
was accessory and convenient that (ley shoUld following the example, in three months thereof-1
ham such power for the support of their govern- ter, the interdictory sections of the act of 1809
meat, die. For tho supreme jurisdiction cannot should he revived in 101 l force, oragainst die [c
hase leisure to invest into the small Matter. that fusing tuition And t h etas to the revoking nu
content the whole order arid regulation of matter. lion. the restrictions imposed by the act of 1810
within that wiciety or community, as they that ehould cease front the date of the prmlamotioe.'
are Members cf it shall." Bat it le evident this In the cult of The Aurora vs. The IJ. S. (7
eminent judge had in contemplation that which ia Crotch 382) the right of Coupes. to enact this
the [modifier. of the riglit to make• bindingbye hew wee rolled in nomtioe i ongreee might ex
hut the Supreme
law. 'or ordinances, namely: the consent of the Court of the U. S. held that C
parties -to be effected by them: It is la/ the tend end revive the act of 1809 conditionally,
pound of consent, too, that the mihonty is upon the occurrence of subseqnent events, to be
hood. by the
expressed
will of the -majority.
ascertained by the President's proclamation. It
Brit bow, when or when have the *unit) of is et v
thetapain h revial coutiuued eroprwion of ,
ct of 1609 was or
not made to depe e nd upon
the people of Allegheny county, agreed lohe go.+
the proclamation, -but upon
independent facts
'exceptenied by the will of a.
co
m.jorily of their foible,
of 'which the rticlaruationis evideece ; at. ,
in,the mode pointed out by the natitu•
Aloe of the State of which they me men:berm! .ter which the P atatute operated proprio vivre.
le commeotini upon these enactments, C. J.
They base tamed they will beinbJect to t h e reth- Booth, in the opinion already adverted to. ob
lutio.na of ...clean] bodies of men to whom ', the serves, 'glad the Preaident been empowered to
conimunity has delegated the legislative autheril
repeal existing - laws, and create a_new law, by
ty." when their decrees assuove. the character of rho exercise of h i e with and toannounce hro de_
taws ! because "' dewed with the 01'41" of ce" cieion by a proclamation, as the people of New
lieu which only those selected bodies can confer. Cottle bounty were empowered to do by the le•
Bat there is no assent beyond Stir and. therefore, &stuns of this State, and to have their decision
the sop ieme anothilY between thh mom of Gar. anuounced by the returns of an election, there
"tPoratioos eXoroisioa the eight of 'enacting bleb..s would be as analogy between the two taco.
and; delegation of authority to make West. Were it passible to suppose ouch an absurdity on,
the government of the;people of the State or any the part of Congress, their act would have been
portion of them. altogether falls-- doctored void, which thus undertook to transfer ,
The act of 1836, 'and its supplemeats, which the legislative. powel exclusively to the Pr.i. I
artabliahed the system of Common School., is dent, and an to abrogate the Constitution."—'
alsia pointed to as an instance of legislation by Those remarks are applicable to our own act lif
miters of the palmier Vote. hi respect to public 41.1 1 61 y, and to theta may be added a notice
education, an injunction was laid on the Gene-. or another and vital distinction betweja it and
nil Assembly by Art. 7, Sec. 1, of the Coustitu- 'the legislation of, Congress. In the latter' in. I
thin of 1790, and repeated bythe amended Con- stance, the pewee which created the law tun
Stitutien, to ' , provide by law' for the 'establiih- needed by the federal . legislature, looking to,no
moot of echoeb throughout the State, in such eaternal aid, hut the production of our Senate.
Manner that the poor shall be taught amt."— 'at st Bosse of Representatives came forth maim.
ThiidotY wa..cerY imperfectly discharffed.3ths. eta t ijitipotent ....d, fouctiontese,, until. virified. by !
lit the P.sage of the act of 1836. It erected the popular breath. In the one ca. the decree I
every borough, ward and township in the Con,- is, , ther Minute shall take effect in action, or it.
monwealth, out of the bounds.' the-city and in- operation be suspended upon-the occurrence of a
corporated districts of the county of Philadelphie. particular event; in the other, this act shall be
into a !school district; and, in connection with uiopemtive, miles otherwise willed by the pee
iietweelimet statute., Pala. out very minutely pie, In the first cone, the !melamine quies•
and specifically the mode in which the eystem, cent. until the happening of the appropriate !
it provides should be carried into effect - School event stim it Into mitten ; in the last, the vo
directors are to be elected in each district, and culled law, not altogether without-the power of
to be Mgmized for the transaction of bonne. mobil. of itself, when it left the hands of the
by ehoising a liemidetit, secretary nod !tenon.% law molten]. Aced Sib ie the distinctiou be- I
width y are charged with the basilicas of con- tween a couditiouat law, properly en denote...
.ductio Affe"detaile of the eystem. Of the public ted, and en act of the law-rnakiug power Beek
monies a schooTifund was set apart, which, from log to transfer its function to another. The
time t time, hail been increased, to be diatribe- one leaves nothing .to be done to perfect the rule
ted atheiig s pheuliccepting school districts. The of action. the other but moulds the clay iota
13th, section directs that an election shall be held, shape, leaving to third persona the tusk of
at stated periods, within each. school district, at breathing into its mimic frame rte energy of
which i the questioa of eetablishing common life. What is thin more or better than simply
schcolt shall be decided by the, qualified voters preperiug i the proper of a law to be eubmitten
of the ietrict. If a majority of the ballots dr- for the sauctiou of a distinct and independent
posited 'hall contain the word 'wheel.," the tribunal, whose will is to determine its future
sehool, directors are to proceed to eotabliah existence or cunthmed nonentity 7
mhooht agreeably to the Provision. of the act i Another supposed parallel to the mot of 1846
but if i a majority shall contain the words "on it thought, by the counsel of the Commonwealth,
schools," the system is not to go into operation to lid - found in the act of 14th April, 1835, which
within the particular district for a limited period. submitted to the Citizens of the State the quee
n; actfurther provides for the holding of elec- tint, whether a couvention should he holden to
lions within much district.. as 'mop theretofore propose anitsubmit far their ratification or re•
have 'Accepted the matem, anti directs that,. p ot i on , a n e w Stole Constitution? Dm v e ry
abooldia
. majority cast their ballots against its littl efleetion will setisfy the inquirer that no
further continuance, it shall be euspenderl until , parallel .set.. The quenion propounded
a bajorityiof the inhabitante• by their vote., nth fur eolinion by the popular vote did not pertain!
erwholidecide. It is insetted that the - power to the, ordinary busuiese of legielation, bat re. I
minceded to the people of the districts, to • crept ferred itself, directly,', o the opiinent dominion
or. rejjet the system of common school. is of the which, as has lieu area, resides only in the
same nature and character ae that eu forced by people, who are abr. competent to decide upon
the act of 1846; and that this poi r has not any proposed modification of the fundamental
,only been beneficially exercised, without nom- law. 'file Conetitutum of 1790 pointed out no
Plaint or question, but that its legitimacy hn particular mode by which au alteration of 'its
been recognised end sanctioned by, the people provisions 'night be effected, and i t woe , t h ere ..
themselves. acting. in their sovereign capacity. fore, minveineat that the legislative body should
In proof of this we ate referred to the schedule indicate the manlier in which the popular will
appended to the amended Constitution, adopted might be muff st 'I in respect to a subject
bytt vote of the people in .1838, wfiich declare. whir, a on E.„ e pre oar UV was competent to
that "all laws of this Com onwealth in force at deal wit n act o Assembly was not alien
the ttime-when the said al erationai and amend- t i n t t o t h pup., b u t simply convenient
meat. In the :said Comfi t 'on shall take effect, Though enacted with A the forme of a law, it
and co
not inconsistent th ere ith," "shall continue we. not in truth a hal, for it contained nothing
as If the said alterations ad not been made binding or obligatory' en the people, who teem at
i .,
If, indeed; that portion of he school law 1 have liberty to obey or disobey it, as they raw proper.
particularly noticed were n contravention of the They might have sieved without such en act,
'Constitution, the argume t,. far us it is baited and_ its enailment, ief regulate and direct the
upon any- mippased actre a of the conventioe mo vement, certainly added nothing to its el-B
it-doh framed it, or of th people in adoption it, ciency, other thau'rui fumishinint mean for air
weuld tie shorn of its ngth by the saving em miniog, with certainty, the public decision.
,fE
clinic, "not incorioisten therewith." it But is The existence of the legislative resolution nei
unirecertary to combat the argument en this thee added to our detracted from the force of the
ground, for 110 such Incrinoiertency exits. The deciaiun when Imola : twee did the resolution, as a
enteral acts of Assembly, conetituting the Com- legislative act, derive any superior sanction from
men School system, came from the Gillen" the deciiiou. One depended in no degree upon
Assembly complete an 1 perfect larva, drawing t h e ot h er , h o t each ,i,,,,, i n n er d!, p er f ec t ' ,mi t ,
the Principle of life fro o the creative "power of . "its proper epliere. The .letislature wu power
the legislature, and looking "to no authority
ten to alter the constitution, but it posliseed the'
to invest them with rhocompulsive power ,of a right to invite the petiole to express their Wishes
vale: A abort extunina lon of their scope, intent on the eubjectu. The people were unequal to an
,audinodeef .operation will make this =Aid, ordinary met of legislatloe, but they might,if
; and pro. that, unlike the act of 1846, they do they would, charigelthe frame of their goveth.
"not make. the repeal tif former laws, mid the enema. They did change it, in tome of its tea ,
Crandall of nlininberta tlal cue., to depend upon toren, but this was done of their own absolute
the fiat of the popular , i ,
ate. Coder their provi- dnd inalienable power, and not by virtue of Id
slims, eailikhcal diet et, upon the election of :thorny delegated loltheni by the legislature, for
school directors, becomes yittasi a corporation 'p ro - wet dr the 29th !March, 1836, providing , for
entitled tar schoolPuniaree, to receive a ellere of the call of n'couventlon, was but the Vehicle to
the public donation -f m the ' treasury of the 'sorry the public whir into e ff ect. There hi, in
Commonwealth, upon_ h
te con4iticin that the in-
fact, not the slighteit resemblance!bettvecu the
hithvitanteshall *gnu. levy !is tax for the sup. .
initiatory legislative step which resulted in a
part of the schools +I 'a . the heneds of the die-
change of the Comoitution, and that by which
Ilk .t. It ill Iropa that the citizens re ce_ll ed , t ,„' they called the people into legislative council.
decide by their vow Common Comon escue„,me Indeed, an entirely ,dissimilar. are the twonases,
O
IM be established wi in their pricluets mot it is strange a likeness should have been lean
for what punier!. of to deterninto Whether gilled. , .
the acts of Assembly hall beconif.lawm 'l:he . .
With a sinle ereeption, to be presently ho
. object of th e vote is clewed . by tbe•
II sal i
achtiol diientore of eye •
i s
t ' Les lens urged upon the part of the Commoueelth,
c which' as tetidino t poi' tie validity of the act of
o a r do tli p e t
e n:: 18 c 3 o lt h . t i s t c l h i o p l r i :
i ed..l l : l l I I : : i. e t:';:th a c n e h lice" , wh ° t h oe b.' id• &prove of all that
since tto argument o the ,
castors been sugoested that instancen of eyelid del
iB4 8 B ut "2-9P ' I " ' t fll Cam it
ro cil ay in tre ro afte r.
t r w ild n o r p . ; Al o e .
d itt y m o e r ,
I ; , al y ?r a n u n o u o al ri l z y , , ,
• '. the atetutee made by Congress, fro. time t
. tf , h e lor d e d mi d i e a no t of t e i tt ee l& dig. ga of lei'Alative au . thorny is to be found it;
tact lei they May the k uecensary a° coif°
territones,Alin organizing . m . I .
64 . 101 r e . time . , ere . Miug . porlions .
. of the public domain Mt
ti m for the, envies
t al ler i th .' e M a t in i o m un. tb t w a' hi It n t 'l la t° d . l:t ° r r int is:entitle to
The succeeding etc ous, in connection voith he a i d I "I -
election of executive,: judicia. and ego a
and.. .
two officers and conferring on the latter th
receive out of the a Mud State ipropriati 1." of gocruinent, by, authonti . ng the appinutmeut
act of 12th 'April, I d; point oat the menu in ,
applied.. An imprebera of the statute will sew Lougee. It is tree that, by these Gouge ,
which the tax is t be asseesedicollected red power trutne ' ke tale, subject to the_appro e v . a i l e :
that a
_ vo te accepting the, sy ton 40 • d, al ache, the legblative function is bestoweS, an
of lei.] i e authetrit b a bod which is Mil
a willingness to contribute an limo tot trio ey, . , -. 7 ati• _ . Y. y Y , . ,
i l
amounts to nothing more (has a octennial of they therefore furmo eumples of ,a delegat o
1 of th e Is. power is expressly, granted by the Federal Coil
that a negative vote Abut a,re us
by way of tax, Nut to the public oeatlion, ed eunordsuate. Sul the right to exercise this lug
hich b Art.-4 Ve. 3, provides the
lic money upon th condition . p posed. he • ,, t t ne r ,',: eher i h Y r , ow ' ,t o diapo. of; and
proposition which I statute. ma to the' .
be_paid to. you a nermin! portion l'
01 2he territory or other property belonging to
P bile I k' u•d I; o Under,hgnat,which
ple of each of the 'noel &delee • Theirs. rail make..litill.u.eedtalu'Uilind'regulations reepect
f e , lute tates. . t Ur,
treasure for . . the: establishment , a
school., nader the pretemierviseil b 'the leg la. .w.m. 1i "' dee " , h th il le n ' tbl Y necwwarY for the we '
lute. provided ion Fill - Wee te..- hen" our;; ii t il "ffi l t t rbi 'f . c ountry beton - glue to the
school direetont to levyropon.go , pro y - .I „P , , l 't c i' ,2 - . _,.. t1l enacted the hiree
Der d i and reguletion a Sus' widely
tax bearing a cm. 0 proportion to Iles - amount . Nuiptt.Collg t rell .a i t a l f l ot y of
Lho
oloirio .
of 'the donatlep; soul Ice the` event. of ye_ pc - referred
-‘), 9 n ?e 'et ei the - Ite All ir. =
agniellig,the acbod direetorsitiehetiby a r- Pil:m.oo DP° b
the people , -.„, ,_
_...
Wed and required *filmy iod eotteetttio. ..--. tboYbin*Ahroii brr tile PeoPoul. we ter .
t ot
It isitif . Walter al) objected sliagre4 ' , sitoric4 ol o4 l _ 4lolo i of 4 1 1 10,04 4 * 0 *PAL.
- ,
EZEZ=i
EMIM
As already intimated, there is a class of els
tut., of modern origin., which It is dill:Malt to
recognize as being.eoustitutionally made. I al
lude to a series of acts of Anoembly, which seem
to have originated 014 late to the year 1639, and
been repeated,. in succ.sive years, eatento the
present. These provide all tile details enema y
'for the erection nod goiernment of homes for
the support and employment of the poor, in the.
county named M each of these acts, but close
with a direction that the quention of erecting a
poor-house shall be mbinitted to the decision, by
; ballot, of the people of the particular county,
and according to the result of the vote. the act
shall take effect or•lre nog and void. NVllgther
'this provision can, in principle, be di,tingliothed
front that we have bi , en reripwing, it is not now
necessary to decide, and perhaps may never hr.
If it be unconstitutional, the nets may be cited
es showing bow silently and insidiously a dan
gerous practice may creep, unnoticed, into the
legislature or - the State, but sorely they cannot
be called in to justify a continuance. of the prac
tice. Being limited in their objects and effects,
they are perhaps no further injurious.than as
furnishing precedents of improper legislation, at
first latching matters of moan moment, but
sure, in the end, to be extended to subjects of
more general concern. • It may be mentioned,
nn worthy of . remark, that this species of legisla
lion, if it can with propriety be so called, has
grown into use within a very recent rriod, and,
it is believed, until the passage of the act.ol
1816, was confined to objects of a local cherac•
ter, not calculated to awaken the general atten
lion, and it-in perhaps ancriliable to this fact that
they have. been suffered to pans without com
plaint.
For, the reasons which have been given, the
Cour4!mfter much reflection, and not without
relactaince, is forced to the conclusion that the
act of'Asiiembly, upon which the plaintiff in er
ror elands convicted, us inoperative .and void,
and, consequently, .does not warrant the judge
meat pronounced by the Court below. It is,
therefore, reversed, and the plaintiff in error is
to he discharged without delay.
Justices Barnsidca and Cotthor disaented from
the fmgoing opinion
JusoncE COULTER'S OPINION
Coulter Justice. The Plaintiff in Error Con
tender that the Act of Assembly of the 7th April,
1846, authorizing the citizens of the several Bor.
ought, Townships, and Wards,. in the several
counties enumerated in the act, to decide by ballot
whether the sale of spirituous liquors was desired
among them or. not, is unconstitutional, end that,
therefore, as the conviction in this case is found
ed on that act, it is wrong, and ought to be revers
ed. The argument rattle counsel for the plaintiff
in erode, proceeds en the ground that the law re
fers back to the people the power of legislation
- eased in them, which it cannot do. ittd. Because
each laws have a tendency to convert the govern.
meta into a pole democracy, by submitting too
much authority to 140 people, & because the law is
not universal and equal over the Commonwealth.
These objections will he considered in their order.
I must say first, however, that the distributionlot
power among the co,ordinate breeches of the gov.
ernment, is 'admirable, :and that Maki.' equi
librium of all ought to be preserved and that
it is - the especial duty of this Court to
observe, with sedoloua care, the just lim
its of its own authority, as well as to guard the
land marks which define the boundaries of the
other depute:was. The duty of providing for the
general welfare, and of regulating the public poi.
icy of the State so as to promote the public good,
is confided to the legislator. Their powerain
this respect, except as limited by the bill of rights,
are full, ample and sovereign, being totally Mesita
ilar to those of the Coogresa of the United Stairs,
whose powers are enumerated. -But to our Leg.
Wigtore is confided all Legislative authority. except
so far it is limited by the bill of rights, which
ie the Orly exception. The first inquiry, ,there.
loco, is, does rho law violate soy section of the
bill of our rights, which the Cumututien declares
.ball be excepted out of the gneral grant of
lative power. That has not been pretended in
the argument, nor could it bo with any show at
reason. In every cinliced country of the world,
granting licence. to Sell epiritomis liquors, hes
been considered under the dominion of the law
making power, and only to be allowed and per.
milted when it prouseed.the public good. It has
.boilipeculiarly 0 in the United
,States, from their
beginning. This law. therefore violates rib pri
vate vested right, no man having a Tested right to
receive a licenser to sell spirituous liquors, if deem.
eil by the law making power contrary to the gen.
mai good. Ile, might as well pretend that he had
a right to sell, obscene picture., to corrupt the
morals, or vend lottery tickets, when the law de•
dared it against the public gash Thii law then,
does not violate private right. It sorely regards
public policy, the ciurro of which ts cOmmitted to
the general assembly. end its such case the viola
tion of the constitution ought to he clear, and be
yond.doubl. to justify this Court, to declare hyoid.
But, it is alledged that, the legislature trineferred
their power to the people, and that the law derives
its power tram the vote or the dlirUCat wards,
Which may produce , a different result in different
sod contiguous districts. Thg point of the objet
!know far as it regards the'consfitution, re'.ates
to the mode and manner of enacting or establish
ing the law, but that is entirely within the discre
tion of the Legislature. If an indwidual grants•
power of attorney to another, to transact all his
wordly business, that surely does sot prevent the ,
agent from asking adeice from his principal; and
nothing would prevent the agent from making
contract to take effect, if it should be approved
by, the principal. Let any man lay his finer tipcn
any section oe clansti is Ma Coustaut.lol3, which
prevents the Legislature from consulting - the will
of their constituents, or from making a law-to
take effect. if the Will of their principal shall e l ,-
prove it, The objection is, that the legislature base
all the law making power gar 1.1 to there, bat &Of
not that very circumstance allow and permit them
to introduce a contingency ! Mt', the . law upon the
happening of which it shall t a le effc'et.Tbe contir,
gooey is the antlers of the low and pan of it, and
when It happens, the law borne . absolute.. If
A, grant ■ lot in the city of Aller:ieny to
that city, if the citizens, by a maj eity of vote( at
their next election, agree to accept it, it would not
be the vote which made the deed, of created the
estate, but it would bo the deed of the 'grir,tor.—
The acceptance of the citizens by vote, tees only
the evidence of the contingency, upon the happen
ing of which the deed warto be absolute. And
so with regard to a law Passed by the Legislature,
eubmittiog its acceptance to the veto of the peo
ple in each:ward or township. It is not the vote
which makes the law,—that is only evidence of
the happening of the contingency, upon which the
law is to go into operation or not. • Title condi
fiend legislation is fully within the competency
of the Legislatrue,--surrendere nopowerynaressed
by them, end is a fair exercise of their demotion.
Its operation', canto along with it the willing
minds of the people, whiFit is shwa:. a matter
of great moment in a free government, with re
gard tio laws wbith propose a considerable change.
in the customs of the people, and which prepares
(beat mere elloctually to accomplish a great'
reform. But the opponents of the law would
make it unconstitutional, Lemma the Legis.
lapito did nut come down on the people with:
out. warning, in a peromptery, unconditional
absolute, iron fisted law. .That la the kind,
Ism *HA they alledge tro constitutions,
belch u come down upon the sovereign peep.
i• a mandate from a mutter'. to . a servant, who
as no voice, no right to to heard or consulted.
f the Legifiature can pare a law to take elicit
upon a condogenry, (which I will show Trim
the highest authority,) why may that contin
gency not rest hi tho ballot boil Is there on,
thing in Ito operation which in alien, or for,
'alga to a tepresentistoe republic! In the case . ,
j in hand, it is but the 'evidenae, whether fill , . 1 ° ,
l of spirituous liquors,, by license from the govern.
ment, is desired or not, or will nr net proinote
the public 'pad in the ward. A wise end
_pa-,
rental government ought not to force this'raf.
fie in defiance of the public will, and that pub.
lie will is more mucky escortained at the ballot
box than in any other mode. The propriety or
expediency of theLivr does not fall within tho
elimpetermy of . this court to decide. That is
not the question., But may not her Legialature
constitutionally enact itl Whenever it is demi.
proved by the people, her Legislature may alter,
modify, or repeal. it. I will show by and by how
far, the people have been authorized in"town
meeting to make laws foe their government in
sister; State. But from the earliest dawn Glom
constitutional, or even our Colonial Legislation,
the Will end desires of tba people !la r va been coo.
stilted, se to the operation of law, either before
It wat•enacted or afterwards, .by means of in.
termediabi agents. • .. The establishment of
wadi:mid highwaja is not a judicial act, it does
net Tall wittild the range of Judicial dudes, but
is enientiallya• bight legielative act of the most
impOrtant character ' and some times the i Lees.;
re
ta ; amnia it directly as to Bounty or' Stern
nude. - "bat ..they, In .a sound curtsiedlnt their
discretion, have-vested, or if the phrase. is pro
fatted, delegated to the'L`onite, throtighlhe igen.
ey. Of viewers and reviewers, power to ascertain
theism:lts and wishes of the people on the Subject.
And by law, it ie designd that upon condition that
thavlowen and the Coati agree upon a paederast„
'14411 shall 0091 glaileCiNth be domed *id tat
ENE
kon as a public road or highoray. in this case, it
it not the Court or the viewers who make the
law or the ioad; they only afford the evidence
upon which the law operates, and ordains the
road. Ha in relation to taverns or inns' licensed
to retail.spintuous liquors. Tho old law requites
the certificate of twelve respectable prisons of the
ward or township, to certify that a tavern or inti
k necessary. in the neiLihborhood. and this ccrti
'ficate of tho cifizous. most be — apprOvcd by the
Court, and the CWICUTICIICO of both to the condi..
Lion on which the law shrill operate. What else
is this law under considertion, than a certificate
of a majority of the citizens of the townships or
ward that an inn or tavern, or other establish
ment for soothe. , spirituous honors, is not neccs.
nary the ward or township, and that W the cons
doisn upon which the law is to be enforced or
•
not.
But it is a certificate given at the ballot box, and
that gives .it weight and respectability in my
judgment far above a certificate annexed to peti
tions. One ip procured upon solicitation and sic.
en to oblige s neighbour. 'ln tho other care of
the ballot hoz, the matter is discussed, thought and
reflected on, and the opinion expremed calmly se,
the voter chooses. And upon a certificate of We
. ..
majority of the veterrof the ward of township .
thus given, that hottiu for ceiling ophituous li .
guars are not *anted or, necessary in the ward or
- township, the law declares thanpo hums, shall be
granted. It his been said in the ergument,that
we would have a number of dotneihc parliaments,
alluding to the vote of wards and boroughs and
townships. But, thank' the Almighty, we hare
no parliamentrin this country, either domestic or
foreign, bat we have the - vote at the ballot box it
districts suitable to the people. where they elect
the President of dila emintry, the Goyernor of the
State, Members of Congress, and of Aesembl y, and
all offiiaira down to fence praisers. And. this
they do calmly in the manner prescribed by law,
under the control ' and regulation. of the' law.
and in the preseces of the law, by its officers aid
ministers. And yet, this people cannot be e n.
trusted to express by the ballot box, in the esti q a.
lion of the learned counael,whethr they wish to I: ve
houscslicensed achong them to sell spirituous' liv
quota. The trillot box ie not a puliament,domeetic
or otherwise, but bye and bye, it will bo the master
of parliaments. It is as yet peculiar to our free
institutions,—was devirwrl and put in practice
hero, hat answered admirably all the purports of
its adogtiou, i'nd, alighted or not, it is the real ears
ereign postier • —• power which is dutined to make
• mighty movement in the world,: and it la not
worth while to cavil at tide entail stem entreated
to it by the Legislatere, which is no more of leg
islation, in my opinion, than electing an Overseer
of the Poor is legislation. The law has author.
iud the people to vote one particular subject, and
in casting their vote, they merely discharge a via
allege granted to them by law. The real power
of .the ballot box resides in tho filially of electing
all officers made elective by the Constitution; and
by that means it can et least accamplish its purl ate.
To coy that the law in question delegates the con
stitutional power to pant laws to any body, or to
the people, is begging the q uestion, and isauming
......
a conclusion.
• • . •
I Will now enumerate same instances apprprieb
ing more nearly to a transfer of legislative powers
which have been approved by the highest jiidicrai
sanction. Thus the constitution of the U. State's
vests in Congress 'the powei to make all needful
rules and regulationkreapecting the territories of
the United States, and in pursuance of this power.
they kayo uniformly authorized the Governor and
Executive Council of the territories since the ordi
nance establishing the first in'l7B7, to collect such
laws of the adjoining Stan; ns were suitable to
tbetfcendition, and embody them as the laws of
the territory, which dallection, was to be force,
and taken as laws, until, one Or all of them should
be disapproved by Congress. 'Thus the'very fano.
lion of legislation, wan conferred. But it wart the
act of Gong - rims which gave force and vitality to
that function, By the 11th section of the act of
Congteas Of May Ist, 1810, the President of the
United States wan authorized in case either Franco
or Great Britain should BO revoke Or m olify their
,vdiets as that they conned to violate the neutral,
-commerce of the United Suttee, in his judgment
and discretion to declare the ume by proclama
tion, after which proclamation, the trade suspend
cd by that act, end -- the est . hying an embargo
might be revived. In the case of the. cargo of
ling Aurora, 7th Crouch, 9e`2, the conatitottonal.
it, of thia law wu questiof I. Mr. Ingersfil cons
teaded thst oCengress , ,of transfer the leaies
ladyo pro. er to rho . ' :hat to make:the re.
Tival of a law depend upon the Preaidenen
proclamation. wiz to giv. to that Rrotlamation
the force of law. But Mr. Law, a moat. dislin.
:giiivhcd jurist, replied that emigrates, only pre.
'scribed thri evidence which should be admitted of
a fact on which the law eliotild into operation
or not. and the Court suit:tined the conatitu.
tionality of the law. The learned and cxperien.
cod judge Johnston who delivered the opinion of
the Court, said v'we ho no suflicient.rearou why
the legislature ,should not exercise diacretion,
either expreetly or conditionally as their judgment
should direct. Theis the contingency was the
will of the President, here it is the will of the
people. This case is strongly in point. Tito Is
giolature, in the net in question exercise their rho.
etv.ion conditionally, and prescribe the evidence
of the fact on which the law shall go into opera.
tiou or not. Whether that evidence was tho con
sent of t wet°, respectable, chit ass of time ward or
township end the approbation of the Court, or
the approbation of a majority of the pcoido of the
ward or township, would sabin to be limbs sad,
shsolutely within the legislative discretion.
I have mentioned, thcio eases occuring in — the
legislation of Congress, which base not only re•
ccived the sanction of the highest judicisl anihore
ity, but have - ice° approval also by the aignaturrs
of our Wisest Presidents width° consent of pulp
lie opinion. In the history of our own legislation
pregnant instsneci of the kamo kind have. occur
red.
Section 7th pf the 6th article of the now con
stitution pros - lac' that the jalltiall of the peace and
aldermen draw test tat wards, borough. and town
shipt shall be elected, in ouch number ita shell ba
directed by law, and thekct of. filet Juno, 1639,
directs that two shall be the number in each word,
Wrench. or township, but the qualified voters
of any, ward, borough or towns:nip may upon
node*. given by flay of their number decide
at my election for constables, to' lucre:me
the numberi .by a majority of votes, expres.
sing in the vote, "increase one," or "two,"
or "no increase." And if a majority of votes
is for increase, in' such car, at the next
election for constable in said township, an elec
tion shell bo held fei the increase number. And
commissions shall he issued to the ono or more
who shall be elected. The cenetitution provides
that this number obeli e fixed by law, but the
law submit. the choice of number, to the people;
and provides that according 'to their decision corn
miasmas shall be hatted. This law rills also un•
der the interilict.of the principle to be established
toblished, and must be overturned. . •
lu a number of the counties of the:Pemmon.
wealth, •Yeer houses have I:vett - established, upon
0 TOW of the people of the respective cotton..
The legialatote first enacted.theslaw, 'establishing
a system, and then provided, that if • majority of
'the people decided at the next electiou,!to accept
the law it should upon that eient heamste of luta
tory. On the faith of these laws, propetty.bas
been purchased, large and expenaive building*
erected, officers: annually chmed. by the people;
like. levied, and all with the assent of public
opinion. Yet all tees* establishment. will topple'
down, under the withering effect of the principle
now to he esOdished, that it is not within thy
constitutional chicretion of the legislature to make
a law take effect upon the contingency lef its be;
ing accepted by a majority of the people et the
ballot box. But above this, and of paramount im
penance is the School law: That law se strongly
imbeddnkin the affections of thin people. is builds
ed on the principla now asserted to be neiconatitu
tionil. And as it hot been repeatedly recognized
by all one courts, we ought to hesitate, before pro
nouncing another law so nearly Itke in'its es
tablishment, untunnuitutional. Some pensibri
shade of difference may be imagined by ingenuity
But the great principle in in both, i submission, to
the'peropkt teksce.tain their wishes. Aid if one
should be held canstitational • and the other
uot, it would be the intuit oetattsolute will and not.
of reason or judgment. I.lheide the general grant
of all legislative power, thCre ti a epeeial 'jejune.'
lion in the constitution, thitt the "legi.latute thin!!
as soon ea eonvenientlY, rash tie, provide by, law
for the nstahrtshmint of schools throughout the
16 b
e
:lion of • the different seheolifistticts—which l.w
bwa Th ite
j ey
r p h m o v i i .w ilet t l o b r y hei bi c w wi. for l co hat o p r iu m i
j anie ,c:
may be ejected by any disu et after it ha. accepts_
cd tt, every triennial year. But if this act of as.
nerubly bar town made by. the districts accepting or
rejecting it, thee the conatitiitionsi ittjunctton has
never been complied with; and the law, being the
work of the revere! thstricis is of no. con
stitutionsl obligation.. Bride a.itithe law under
co ,,,id e mtion, the- legislature ' did net provide lei
the establiahment schooh' throughind the
State, the city sod ison2elnted. rliauroo, of the
county or,Philidcipteing excepted, compare.
log perhaps coo tenth of the population of the
State. - They haa beenpaturhinaly On:o4lnd wilt,
e reece, acceding aheir-wiehis. • And fhb,
law. pp:Rides hint taxes Alia bo #.lk'ett4
---NO
VOL. , XV
the county for the schooling of- spoor in thole
districts; thus chewing that diligent lima and
rules may obtain, even in adjaining.dietricts. As,
hale shown the limns: lawFannot Ic distin.
lashed from the school Ity.cce bcinglor this
whole State, and the other not:'`•They. ale both
local, nor. mu it be distinguished became the •
school law is a matter of general policy and the -
other not. Ta . keep Inuit or tell liquors has al
ways been under the deminion of the law in Eng
land, in csety civilized country .of - Europe, and
in all the American States.", Every where, it is
considered, no belonging to the public polity of the,
g overnment, and only to. he allowed or disused
rho general good • and 'convenience required.
The result of these elections puttied low safely
any measure tootling to the pubdic Mated, the pros
motion of public morals, and thts elifftwionof.
knowledge, among them may be submitted,. the
people: This law thus
, by its own provisions to
take effect, on the contingency of it/ being cc_
ceptod by, a majority of the voice,. the particular
district, has been universally approved by the pub.:
lie sentiment and inttiligence. Its consination- •
ality woe never doubted ea far as .1 - know. /
think I may say that almost every Mart of corn.
mon pleas in the State has adjudicated upon it.
It has been before the eupresne covet Memory
aes, a few of which I will mention: filtration vs •
Baldridge, 7th Walls, SJO; O uhiotvi Dickson,
I Barr, 224; Kingsly vs the School; 2 Bin 214;•
:Wilson vs Lewiston',/, I Watts & Sergeant, 429.
In which mass, the validity of elm:Sans, the eel.
lection of tales and 'important- Matters, Under
the late, were settled by thls'eourt. It may be •
Said, that its constitutionality was never directly
put as a point to tho court. Bat why? cbcaueo
no body, either lawyer or je doubted its con
stitutionality. This of itself in my cpinienought •
to prevent this court from declaring a
.sinitlar law
unconstitutional, inasmuch as it musk of neces
sity raise a reasonable doubt at leant Itelhe minds
of any man. And when Mere is doubt. this
court ought not to der's.. law totimmatitutienal;
respect for the legislature., iu such case, in
my opinion requires the court to forbear,--
Thousands of school houses have been erected,
Canaria of the public treacim expended and heavy
tales collected tinder the . school law. Bat the
principle contended for by the learned counsel for
the pM in error will crumble the whole "system
into deist and althea; and prove its ruiri. - A plentl.
tel crop clanks, will aria° to fill our courts, with re.
,gard to school , property, school taxes and, school
Consist: lathe law ender consideration, its obligee
Cory 'force depend, upon the contingency of the
people by their votes et the ballot box. declaring to
accept it, and so precisely of the wheel law. Al.
hod by affinity, in their tendency to . alevate, and
exalt the character of the' people, one fate mnst
attend them both. I admire ingenious theories,
but I cannot permit them' to °listen:l public °pin.'
ion, to nettled and eanctioned . in the long lapse of
years, by tau habits. our Imre and our judicial We
bends, wisdom is often found eniong di: mut, of.
the people and in the general current el thought
iminion, , where it Cannot be found in the specula
. liens and theories atilt:S.ol:mi. I:esti - lie said,
.however that the leystatarr. F. pass a supple
mentatit law, misfire:nag aim making. &mud these
impotent and spurious lawn , But who knows .
that they arta do it: 'flit which is null sec void
in the beginning cannot be made valid, this * a
principle well established. The Legislature may
pais a now law on the subject. A
m ajurity . how
ever may believe that the old laws are .constitn.
time', end that it wend be yielding and abandon
ing their own powers under the canetitition; which
they are bound to support and preserve, if they
made tho adridesione of their unconstitutionality
by enacting new one..
These however, which I hive atinmeraW are
not the worst effects which are to follow the wash..
civil of the principle contended for. - Mb pro =
toned and -philotophical author of the Spicit - 4
asserts the propriety_ of adaytOg: laternr..
dilate agencies, beelines tie leY,islabtre,.ocurld no t
probebly know al! the wishes. and wants: of the
people accurately, .and he instances the ease 'of
oho grant of power to eine; and boniughls,to reg
ulate their internal atriins. Bet on the plincipel
controdcil for the leis or ordinals= of eft*
and borqughs, would h of no effect beeense they
wens nob established, by direct enactment. The
mistake, however is in not perceiving that they
derive their force from the direct ertitetment'of thus
law making pawcz, end without that. would bo
nothing. They aro the mere ogencier tonecortain
iti°. o ec , ' l4lll 7. ‘ ,3 11 4 - , aad,wieheaef he Paglde.. of
city or municipality.
But if the prineiple contended for by pr. is
eustilied. the power of ibunicipelitiee and, boa
roughs must fail. Tbe , poorer, -however, : has
bora frequently sustained by this cote, not only
criminally but civilly. Meyer & Go; 'ea ,Hill 3
Yates. 475; . Mayer &. re Meson; Dallis,
266: - Caitiele vs ate, 1 Yates 471.
But the prineipirs alarcit tobe satablished will,
I fear • open a cull higher ieuree .of itmayance
and di:ensnarer, to the soiled law 'end authorities
of the State. The constitution under which wo
sit here and decide causendarived its origin from
• law, mush es the one under consideration. In
the old Constitution of 1790 thane wan iio prowl.
ion for its amendment, but there is in the - pies.
'cot connitution. 'The General :4asembty tinder
plenary and sovereign • power of legislation vested
themi by thb old constitution . which was pre.
nicely the same err that rested in the legislature,
by the present constitution; enacted nitres submit.
tang the question of calling a cenventintato l veto
of the people. It may, be said bowery,' that the'
people have a right to make their ,conetitption; '
Undoubtedly they have end ad hairs they right.
to mike thin Imre in tte . sime semi:" A Moja , •
hp of the people may Sher and abolish their con
stitution and their , laws, but they 'moat do it ac
cording to the constitution, or it will tromnrolus •
tins. .
Now the old constitution,gave lcitholagbditoia
no power whatever on the subject except whatimat
contained in the clause. • oThe legialatittplawu
of this commonwealth shall ha veirlisditiVlen- •
end Atiombly." • ;
Under this power the law jubMitilci lit' vole
to the people was enacted. - A' majargitidtho ,
whole people did not vote for a orinstokkagliut a `-
majorityof the voles cad were in' ItaNkt:;;;-AC- •
Cordingly t law was enacted, the in4aiditittits4 •
oembled, and the result of their labi*dit - ptinvesi
Constitution; woo submitted to the' - -pelipliv - "A mac
jerityof the people did not vote ta,adapidt,lnt a -
majority of the votes cut slid. Theticienit, Cono
stitution, therefore, does not derive di - oritioifnfm
a majority of Ma citizen's; hilt from a jrt* such at
the one tinder not:aide - ration ithich;proildid
conventiot should bandied lii.7l2"coadltiocithat
a majority of thMtilizln o ahould; at the general"
election, mahifest by a nisjority of - votetcaat, (for :
all hail the opportunity of voting,) that they de.
*nod it. ' The new Constitution,thensfort; hangs ,
upon the law subroittiog the•questimi to Mope*.
pia to be decided at tbo•ballot box, end the condi
tion that a majority of the, votes cut vraa in its
favor. It was veherlently limeade.] si ibe taros -
that the legislature had no authority ion" Won
It law, aa that it was utterly uneinativinooil---
If, then, iheyhtd antimony to make thit.loresb.:,
log a convention. dependent apon Mo. conunvo
cythat • majority - coring duffed it, why canstny ,
not, Make ei law pinpoint:Of an llTlifirtUr
aniong the people, dependent for tts• taking
upin the J h appening , of the acme amt:tginicV--
thot is a majority of voters being in its moor. • If.
they cannot dO it fri the lattertase, a rule will be
established which I do not s d at prMint hO*
I.l,iurt could got round, if may - person aticestd bring
before Cam the validity of any of-the elleritions
made in the new Conotitution. I would' not,
without a conviction as clear u the mistualowed
light of the noon day- sun, cast a &mid ast ; thei
aulycctby any judicial decisiois.
jI trill neat consider the. arguniiiiit, agOinfit,,the
law, on the ,t round that ouch - law wilt cattsert.
the government into is pure democracy, mid is,
therefore, uncomadatlenal. This .is.-cluselyi
lied to the argument I have conaiderad,lan has,
in my mind, even has Alice than itatwirlblithsi.
M onterque. -in his 'Spirit of Laws says,- (std
quote him because be was no friend to deratcraey)
dist in a country of liberty, the legislation powers
.
should reside in the whole tintiy.orchfi , people, but
All in large.bitates that ix that
the people shatilii Unmet by theiepreaenta , .
G.ea. The same pi kelpie . is r embodied •in ixtribill
of oghto, in which it i• &clued that wall ietwerii.
inherent ill the people,-and that tatigtese i tight
it: a ioaceable mannar to apply to tbotie Wagged
vrithLthe power of government foe tidiims of
grievances, or fot other proper Vide'
foodamestal rule eatable:tn that tblooice "Of the -
people ought to bo heard; and when hoot:tea from
a majority tha t
. it ought to:to, ot:ayett. ,- But, the(
legislature r osyhave dontaii shoot On algae' or
wants of the people,iind. A*otaati in most cisea
they may ho able 'their
once, or the petiiiona, ' of the people,.
lit on import:oaf a Poet =ante
io . proßated, they4rtaaeabe telinoce the public
eentiment :kfro%7mperik,a law which
thej thing' wire email/oda:the= thituada,thm.
yore, *fro:ado that itchill.go into Offer:Clap=
the contingency of the mindu olthe people , toting :=
favorable to it as expressed attbo trallot.hol,.l_this • .
la in aid of the bill of rights and Pip=alapeoll'''..
Relater and *pith Itpeete with no PtafOltiliala; , , ,
Of fanetionnf the lelgolatt#O, cadent taa:parrii4i.
cettattereen: piraf olti,h4itit44 , l;lVßS#ll!
1.4444 Fig