Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-08-19

, skeleton 10 another IF1bunelJ 70 De IN
vested with that living principle which
the representatives had not the DISPOSE
ton or the courage to impsrt.
The Court said, in the language of
Judge Of neighboring State, that the
act operated not propTio vigore, but, i
at all, only by virtue of mandate ex'
pressed subsequently to its enactment, in
pursuance Of an Invitation given by the
legislative bodies"
The Court said, in substance, that the
law-making power was entrusted, in New
: York, by the Constitution, to the Legis-
lRture, and could be lodged with or
transferred to any other body. The
members Of that Legislature were elected
by their constituents for the important
duty of making laws. No higher trust
and confidence, the Court said, can be
reposed by man in man. But that was
an error, because the trust and conf
dence reposed in those selected to make
a Constitution are infinitely higher. 1t
is to be presumed, the Court said, that
they are chosen for their wisdom, integ-
rity, experience and fitness. And then it
asked the pertinent question Upon
what principle, then, can the represent
( atives transfer to any other person or
/ persons the power Of making, or what
/ is tantamount, the power Of breathing
1 life and efficacy into laws Suppose
I they should attempt to elotne with this
authority some iRdiuidltdL, as the Gov
ernor or Attorney General, would not
the common sense of the whole commu-
nifty be shocked at their dereiiction Of
duty? There is moreover a well-estab-
lished rule of law which forbids such
transfer. A member OF the Legislature
is the voluntary agent OF his constitu-
ents. He is not compelled to serve
them, if he chooses to decline. If, how
ever, he accepts the of1-ce of Legislator,
he takes it with all its duties and respon-
sibilities and as q true and faithful
sgent, he cannot shrink from meeting
and dischsrgIng them. A11d a6oUe all,
he cannot delegate to others the trust
which has been expressly confded to him,
6y reason Of his supposed knowledge and
sound judgment. DeEegata pOteSta8 non
pOteSt delegGri, is q settled maxim of the
common law, in full force at the present
day and never more applicable than to
the case of a Legislator"
The same subject was examined at
length and with great ability, by the
Supreme Court of Pennsylvania, in PGr-
ker Us. The Commonwealth, 6 Barr, 5O7,
and the same conclusions were reached.
But it will be said that the Convention
only proposed the amendments and
schedule, and that they were adopted
by the people themselves, to whom they
we're submitted; SO that the Convention
did not delegate to the Legislature the
power of making new Constitutional
provisions; but this power was conferred
on them by the people themselves.
To this we reply, first, that it cannot
be assumed that the people, by voting
for the schedule, meant TO confer any
such power on the Legislature. They
meant, undoubtedly, to give the power 4
to fix the qualifications Of voters, and |
determine the limitation Of the elective |
franchise, for they did DO it. But they /
were not advised, by the schedule itgelf,
or in any other way, that what the Leg
islature might, under this authority, en-
act, was to become part OF the CoHsti-
tuition itself. 1t cannot be inferred that
they meant to give the power 10 do more
than Legislate on the subject, in the ordi-
nary mode, and with the usual effects Of
legislation.
Second: 1t is matter Of very grave
doubt whether, the Constitution Of 1884
remaining in force, as it did, the people
could, by their votes given in mass, en-
power the Legislature TO amend the Con-
That instrument does not en-
rust the power of amendment to the
Of the people only. One-half
IF all the members Of the Legislature
must vote for the amendments st one
session, and tWO-thirds Of all at the next, I
md then the people. ;
The Convention made no change in I
he Constitution, except by the specific
amendments proposed. It did not
'hange its provisions as to the mode Of {
it. Could that body, while I
hese provisions remained unsltered,
nlpOS0er the people TO confer the power
# amendment on a mere majority Of a
ingle Legislature, at one session? or
ould the people themselves, by ma
GRITTY vote, confer that power2
The Constitution could be amended,
My by the procedure provided for by s
tself, or by convention of the people. q
'he people could not confer that power 1
n the Legislature, if they themselves
assessed it. 1t is quite evident that il i
bis can be done, Constitutions can have I
o sAnetity or stability; and may be s
hanged by every succeeding Legisla- Z
IRE. The people Of Tennessee had s
'isely Invested themselves Of this power, v
My reserving to themselves the right to v
ass at the polls upon all amendments, r
IVA NY SAcAAN nave bceA dOODLGu DE -
70 succeeding Legislatures. &
The whole proceeding of the Conven- 1
on was singularly anomalous. While !
le provision Of the Constitution in re- q
ard to the mode of amendment re-
aimed all the time untouched and in
II force, they proposed to amend it in il
mode forbidden by itself; not by their s.
Fn action, as convention represent n
g the sovereignty Of the State, and T.
Ithorized to make, IL they chose, new
institution, but BY simple vote of q 81
ajority of loyal voters. The Conven- in
IN received its powers from the people, al
Id possessed them because it aOds "tbe
aoPLE OF the State Of Tennessee in
invention assembled" 1t could not =
Fter any power on that people. 1t A
uld not gtUe them the power to adopt W
e amendments or schedule. Il could 10
ly recognize their right to do 80. And 81
at right, if the people had it, was In bi
rent in them, and may be exercised 90
ain at any time. 1t is absurd to say - =.
at the People in Convention authorizes
elf at the polls, to amend the Consti-