New-York tribune., 1874-12-22

prove il. And this result may be reached without
tho observance Of any other form ceremony what
over. A written Constitution cannot effectualIy
forbid the subverson of its provisions. or in any
way divest the people of power to modify their i'll
stitutions in peaceful and legal waV.
On principle this proposition cannot reasonably
be questioned in any of the States. In ours as be-
foro stated, controlling precedent has established
it, Conscious of this and many similar precedents'
an able writer has intimatcd that positive prohi-
bitOn could not he overcome except through tic
insrlumrEtatv of Convention called by authority
of The lrgsIatdrc. 1t may he admitted that 4 Con-
vention TO prepare and propose the alterations IS 'o
m at cxpedicnt course; but there Is no legitimate
basis for the assertion that such preliminary sIep
is Indispensable
A Legislature created by and holding its powers
under fundamental law thus n0minally nVcStd
by its own terms with eternal life and with lnii
bilty. would indeed contIavene n prescribed du'y
were it to propose to the electors new Const't"'o"
or even partial amendment of that in existence.
But it would not he less transgrcssor against the
expressed will of its ovcr-contdcnt creator were 1t
to injtiae stems leading to that same end through
q Conventions or through any other device
whatever. 1t is obvious that in any
action of this sort such Legislature
except through an Inherent function, inscparabc
from lis very existence enabling it to perform That
office for the people whenever needed, it could not'
in opposition to the existing written Constitution
give any legal operative sanction to the conte'-
plated changes. 1t must he that all reasoning
which admits legal capacity to Overtlrn Dy ieg-
laraud peaceful proceedings such constitution sup
poses two principles anterior aud superior to IT, tt
is to say, first, that tho people possess inaiichapiy
the supreme power and secondly, that they may cX-
ercise it in Il regular and orderly way. The iatt'r
concession is Indispensable for the only alternative
is natur:zing in our better system the alien OIL
spring of mOnarchical lnisrulocOrciblc and disof-
dorly revolutions. Certainly this second proposition
of paramount American law is not cmbaih"d' hor
could it be in any prescribed fOrms it neither rccoS
nizcs convention nor any other particular me1hodS'
and hence il is quite clear that convention is not
Indispensable Still as it is legal principle there
must be peaceful way of giving it elect There is
such, for no government can exist without
official agents; aud if that ono among the govern
mental agents in which is vested tho general
power of expressing the governments will, con-
scnts to alterations or to tho preparatory
steps, the necessary function of duly convok-
irg the supreme power may be performed.
In his way a fundamental change NAV be brought
about peacefully, and therefore not unIawfully IL
is by recurring this cnnScnt of the existing govern
ment, as indispensable to the cOnvocation OF tho
people. that due order is preserved, and all neccs'
sary facts including the qualifications of voters are
asccrtaincd. Thus too, there is secured proper
record of the solemn and important transaction.
Whether OF not convention be necessary does not
dcIcnd upon difference between partial amend
mcnt and complete reconstruction. In principle
and in matter of substance, there Is no difference
between these two things Minute distinctions of
this sort do not belong to the high argument rs
to how constitutions arc made.
1t follows shat the constitutional provisions of
1916 on this subject and The legislative action of 1912
may be entirely di>rcgarded, the amendments being
perfectly regular without them. The act for sub
mission passed in 1871 together with the subsequent
popular approval, sa.ii3cj to establish the amend
monts.
However imperfect in themselves, the mos! impor-
tant Of thcac amendments are steps in the right di
rccion and il j.; desirable that they should be
co.nizcd rs valid The sages who devised our
TEN brought to their aid i'll the task II profound
wisdom enlightened by extensive and laborlous re-
search but owing = the vices which had marked
tie career of all pIcyiouS governments, many Of
their principles, then for the very first tinc at
tempted to be put into actual practice, were ne
ccssarily derived almost entirely from theory.
That the executive, legislative and judi
cial departments sho:d IL kept s'pa-
rate, was wisely adopted - ih5Tn. Bat their
attempt to construct macii.l. :. AZ its develop
ncnt received no aid from precedent experience,
and it was not entirely successful. AS well in the
Federal Government as in that of each State, tho
legislative department was practically made
supreme. Such n concentration Of power led IN
cvitahly to the nagrant corruption now 50 extern
sivcly prcvalcnt and it is that precise evil which
has stimulated Efforts to suppress special legislation
and coniine the law making power to the enactment
of general laws. These efforts had their origin in
patriotic desire for good government aud an cngit-
cned perception of the remedy most appropriate to
the end.
Nothing can be clearer than that the great mass of
governmental acts now known special legislation
would belong to the class of executive resolutions in
any truly scientific arrangement under the adopted
and approved theory of the fathers by conlining
such executive resolutions to their proper place tho
theory OF three separate departments would be prac-
ticaly devrlopcd and, perhaps, its supposed bcnc-
f!s might be realized Olc department. the lceis-
lative would make the laws i. C., the general stand
ing rules for the administration of public affairs;
another department. the Executive, clothed with
no law-making power, would, at its peril
conduct all applications of these standing
rules to specific or particular cases; and
third department, the Judicial, having itself no
power save to ascertain and declare the existing
law, would judge how far the Executive had con-
formed to the general standing rules. This is the
aim and spirit of the important amendments now
before us. 1t is believed that Article VIII. OF the
present Constitution, adopted in 1916, contains the
first instance of endeavor in this direction 1t
did not cover the whole ground but il has been ex-
tremely useful. It has awakened attention to this
much needed REFORM and several of the sister States
have acted on the New York idea, greatly amplify-
ing its application. BY these amendments VIC have
in our turn copied our imitaors. and arc carrying