, 1862-05-12


whatever.
In giving this opinion have not alluded to |
the disastrous consequences which might re-
suit to the city, By the repeal Of the only law
tlon Of public order and the security Of life
and property, could be appointed. These are
certainly most Important considerations, but
they rather seem to furnish REASONS why the
people should not vote in way to bring these
evils upon themselves, than to affect the ques-
tion under discussion.
lae consequences OF any enactment are OF no
importance, il the enactment is without IN
certainty in its terms, and WIS passed By COM
petent authority. L is clear, beyond contin-
gcncy, that the section in question, il valid,
does positively repeal the laws named, and
hence, if the convention had power to pass it,
the consequences which It's adoption will en-
tail upon US, are proper reasons TO be urged
for its rejection by the people, but can have
gal question submitted to me.
Your obt servant, E. c. LARSED.
Chicago, april 4th, 1869.
OPINION OF WALTER B. scATE5, ESQ.
CHICAGO, March 81, 1861
i. c, Cotrntry, Esq:
DEAR S1R:--I have examined 3fr. Beck
With's letter to you Of the 26th inst, in rela-
tion to the thirty-fourth section Of the sched-
u1E auuplEQ DY l1G VQlFE1LlOu.
concur most fully with NJ BeekWith, that
the convention had no legislative powers
whatever. I entertained and urged the same
position in the constitutional convention Of
1s4i, and that convention sustained that po-
sition fully.
concur also in the points of his argument,
with one exception, and will not repeat whit
has been so ably and iucidly enforced by him
do lot concur with him in the position that
the legislature had the power "to prescribe
%1. l..fs ~.
the act calling the convention together.
The legislature, in my opinion. had no more
right to ''prescribe the powers'' Of the con-
vention, rs to fundamental, organic proyis-
ions Of government, than the convention had
to exercise acts Of government, legislative, e1-
organic laws in framing arTsutn constitutions
| rs understood and pracliced by the people Of
| the United States, and Of the several States in
| America, is based upon tue principles Of the
Declaration Of Independence, and the bills Of
| rights Of the several States.
| 1t was declared 10 be natural right Of the
| people, and was yindicated by succc6sfll
rcvolution, at 3 great sacrifice OF life and
Treasure. Both the right and power were de-
/ MED by all other countries, and unknown to
| the Laws and nsages Of the nations Of the
| world. The United States of America est4b-
| likhed the precedent Of q wtibsan constitution,
| p5 convention Of delegates, appointed by
the people, That precedent vas followed,
| abu "is tEc nIlulA sequence Oi Tue prl0c1rlcs
maintained in the Declaration Of 1ndepend-
snce, and re.ssserted in the bills Of rights BY
every State convention which has assembled
since, for the purpose Of adopting organic
laua.
While this is true In relation to all coustiru-
tiacal co.yentfaIs, it is eqaa1lY true that all
la1iulls, Of ~batcycr FORMS of government,
from despotlsms to limited mouarchies, wheth-
er adnIinistercd BY one or uuany, always txe5-
cised legislative, executive and judicial fuu1-
.fIHyt
| to interpret, aud to execute laws. is not pocu-
liar 10 America These functions or admins
tratiye powers have always been known and
| excrciEtd. And whatever OF constitutional
limitations. OF organic laws hare been adopted
by the nations Of the world, have been 30
sdeptcu hy the same, or part Of the same
bodirs that administered the other po v+rs Of
government. No nation, before the people OF
the United States, ever adopted the practice
Of assembling. and organizing separate body
tahlisbfng organic laws.
The United States, then, not only intro
| duced and followed this mode Of establishing
their organic laws, but they have in no instance
authorized such conrrntions to'lcgislate upon
any other subject, nor am aware Of any in
! stance ~htre tuch i convention even attempted
7 to do so, In any other respect, than providing
for vote upon, and organizing government
under their o~n work, when adopted By the
people.
The people then confer the po,cer
upon these conyentions; the pore,
lB limited to the adoption Of the or
/ ganic laws Of q republican form Of govern,
snent, consistent with the principles oi
Of rights 80 often reiterated since, in every
State and territory in the Union This il
the plain, practical doctrine, which the peo
Bgtste: gts ea'' sA1e'''ne' ''S and as''n IN e'eF'
To contend that convention is tho people
! in fha nf ur1fnffa3 II rfr111 lad ND
unEcstrained power, is q political hefesy il
J The United States, and would sacrifice tht
public liberty for the maintenance Of theory
| If ench Claim, such q theory, is to be prac
! ought to be done By candidates, before tht
! IL hction, and not hy the convention whet
! assemblcd. Then the people would have al
| opportunity to sanction or dlsasprove, BY
, e1ecting or rrpudiat1ng the candidate, *
: | avowirg this doctrine. Again, SO long ant
submitting the constitution to tho people TO
? spproval, that it has become the settled 1ap
, upon this subject By universal ueage Of late
:! The only instance to the contrary, for gen
l cra,ions past, had well nigh caused q loce
civil var, and will hardly be again repeated
I Few will deny this to- be the law OF the case
The constitution will not then haye any force
r until submitted to and approved by the peo
pie. These I regard as automatic trnths, il
i relation to making American constitutions
d law. IF this be co. then four or fivc conse
I Quepccs naturally follow: ..
l. Flint. The power Of the convention Ia con
. fined to the making Of constitution alone.
8eeord That constitution will not take e.
: frct until submitted to and approved hy1th
u people.
+ Third. No administrative power provide
a a for In it, can be exercised under It, until
Is takes effect --..
e Fourth. When it does take effect, the po.
ers in It must be exercised By the body {
20 | r0arisffncy f1r13Yfded for bY It.
p Nnh. Until the new constitution take
8 effect, the old one Is in full forca
d and government under it must be exercise
j. as it provides, and by the bodies Of maggistr
b cy deeignsted In it.
r These seem also to be sc1f-eyident truth!
|e And yet. If all or if either Of them be tru.
!, the convention cannot exercise single H4n
% ton t:f administrative government, executiY
= legislative OF judicial because
3 First. There cannot be two full aud con
IT pIe1e aoTereign governments at one aad tt
" same time, Ii and over the same pl1ce, an
ae more than tive solid bodies can occupy e
same space at the same time. One Is poll
o. ics1, and the other, natural or physical Ia
e possibility.
!, second. II all the sovereign powers !
j. government revert to the convention as SOC
N as it assemblies, then the existing constitute
it must that instant become void, and the POI
Or ers Of the executive, legislative and jadici
Of bodies Of nagistracy ucder It must cess
IL But this We know Is not So, and the mo
- | latitudinarian does not contend for it.
Third. If the whole does not become vol
I'd | then no part becomes void
.. Fourth. Or put the converse; the co
or | venricn may exercise one administrative fQ q
ae ton or power Of administering the goTsE
be ment7 1t may any and every such power- "
ut csn make law, 1t csn adjudge aud execute
en Fifth. Tbere being no written constltnao
ne confer1ing upon sucn convention the admi
er ist1ative powers OF government, Il such po
n. erB btlorg to 1t, then they havc no limit
he | time, and may be exercised forever. nor has
ny any organic liu1its as to Whist it may do.
by | would simply become despotic Oligarchy-
I'd Tho whole theory is q rank political here's
nd and the practice upon 1t would be tresson, q
4 oveEtnrn the government. The representa-
TO would, under 1t, betray his constituents, =
N, nsurp all his political rights, and destroy
nd | liberties.
Arotber objection to the eect1on+ and {
he | last shall notice fs, that It Il confined ia
ny 1 iiportfpn OF the people only
tu- Eopstrutia16 should contain grn4t funt
re mental general principles onlS, leasng le2 Is
on ,ion to toe body Of ma:fs'rAcy provided for
ga it. It Should be fairly and folly saonitted
1re I the body Of voters IN all It's essential par
ion The Z K=nsxs constitution drew out fd4
III ( presslons of the American pe9ple,- =
81 f,izi; s:ttled ths Taw upon This poll
OF, Evefs man would spu1n1 with fndisnas1ou
or proposition to divide up lne coostltutl9a n
ext | ffagme nts, submitting one to the vote OF o
..>a ] 1.,Z3Np - A~n4haT IN pnokhAe and 6Ak