The daily gazette., 1883-01-31
JUDICIAL VIEWS VARY
CHIEF JUSTICE AND CHAM
cELLOR DISAGREE.
AN OPINION FOR NEW CASTLE.
The Legislature May be Increased I'm
equally but There can. be no District
Representation-A Talk with the Chan
ceIlOr.
Especial correspondence Of the Gazette. j

DOVER, Jan. ot.-Cnlet JUSTICE C0megys
sent In to the Legislature yesterday an
| opinion on the question of increased repre-
| sentation opposed almost directly to that oi
| Chancellor Salisbury, published In yester.
| days GAZETTE. The opinion was read in
| both houses, referred to the Joint Commit
| tee on Representation, and 500 copies
| ordered to be printed.
The Chief Justice begins by reciting the
| interrogatories propounded by the General
Assembly, and says that he thinks it is the
| first time that the Legislature has ever re-
quested an opinion from the judges upon
any question. 1t is In no sense obligatory
| to give opinions upon the validity of pro
posed legislation, but desire to oblige
prompts him to give the best opinion he has
been able TO form. OF course no one can
| suppose that the opinions given will in any
respect be judicial interpretations of the
Constitution; such can only be made in the
| trial of causes between party and party.
| They will be simply the best Judgment that
can be formed by the judges respectively
| upon the proposed Questions-that Is the
expression of the mind of five expert
| enced lawyers-but without the aid
| at times so necessary and always so welcome
| of discussion by Counsel learned in the
law. The opinion then goes on to give a
comprehensive resume Of the history of the
government of Delaware from the forma-
| tion of the colonies. Before the Declaration
of Independence the colonies, of which the
"three lower counties upon Delaware" was
/ one, were in no sense Independent politi-
| cal bodies. They had a certain legislative
power residing in legislative bodies CO.
| operating with the Proprietary or his sue
| cessors and their lieutenant governors, but
their acts of legislation, except such as par
| took more of the nature of bylaws than
general statutes were sent to England for
approval by the royal authority. The colo
mics, neither collectively nor individually
possessed any such thing as sovereign power.
With the Declaration of Independence
| this dependency was thrown off, and what
was before a mere colony of England be-
| came her equal In all the powers that per-
| tain to sovereign communities. The right
| to make any laws, the same as the British
Parliament could do, at once attached TO the
| new born State, and but for what the people
/ of Delaware shortly after did, would have
existed to this very day, The new relation
| and the responsibility it created at once re-
/ quired the provision of some law, fund.-
mental in its nature and supreme In its eK-
ercise. Nothing was left but the
| common law, which was the BIRTH
right and Inheritance of the colonies
and secured them in their persons and
property. Under these circumstances the
| people appointed convention TO frame a
| Constitution. This body was composed oI
| 80 delegates, 10 from each county, who
| framed an instrument in September follow
| ing the declaration which continued in
force until June IL, 1893, when it was super
eeded by another, which is the supreme law
at this day, except as modified by the con-
vention OF 1881 and an amendment adopted
| by the Legislature at the session of 1875.
BY the last article in the Constitution of
/ 1776, after declaring that neither the declar-
| alton of rights and fundamental rules OF the
| State nor certain OF its enumerated articles
ought ever TO be violated on any pretenee
| whatever, 1t is declared that "no other part
of this Constitution shall be altered, changed
or diminished without the consent of five
| parts In seven of the Assembly and seven
| members of the Legislative council"-the
latter being composed of three and the As
sembly of seven members from each county.
/ Our Senate and House now answer to these
/ bodies, so that under that Constitution a
| change of that instrument required five
sevenths of the Assembly and seven min this
| of the Council, but no confirmation by any
subsequent Legislature.
The convention of 1902 I'm making a new
| Constitution adopted many features of the
| old one, but established many very material
| changes, one of which provided that the
| Constitution might be amended by Conven-
| ton held for that purpose or by the Leglsla-
| ture, two-thirds OF the members of one ses-
| sion, with the approval of the Governor, pro
posing amendments and three-fourths of the
succeeding session ratifying them, after due
| publication. This feature was left untouched
/ by the amending convention of 1881 and is
| now part of the paramount law. Another
/ of these changes is embodied In Article IL OF
/ the present Constitution. This article Is
/ the only authority given to change any fea-
| ture OF the fundamental law at single ses-
sion of the Legislature, except that one
| [Section 2f, Article VIII, provid-
/ ing for an increase In the number OF
| Justices of the Peace. Practically both
these provisions were considered to be
| virtually the same, Tor the number OF
| Justices, as also of members of the General
| Assembly, apportioned to each county was
| 12. Under the colonial system the number
| of members of the Council was two from
each county There being then six counties
three of which have since been annexed to
the State of Pennsylvania and House oi
| Assembly was composed of four members
from each county. In 1776 the number was
fixed the same as at the present time, the
difference being that by this Constitution
five parts In seven of the House and seven
parts In nine of the Senate could change
any part of the instrument without any
subsequent Legislative notification,
The Chief Justice then proceeds to con.
slider the relations existing between the con.
stitution of the United States and that of Q
State. Judicial decisions have abundantly
settled that the United States Government
has only such powers as are granted to it in
express terms by the constitution and suef
Incidental powers as are necessary to carry
the expressly granted powers into execution
and he instances the power "to coin none,
and regulate the value thereof" the powel
to establish mints, etc, and TO carry tha
power into operation. The United State
Constitution Is hence grant of powers by
the old colonies, which powers are of Wild
scope and sovereign within their sphere, bu
by no means embracing all the powers o
government. To have given all govern
mental powers to it would have been felo d
Sc on the part of the State. Their autonom,
remained and yet remains.
But when we come TO regard State ou
perceptions are wonderfully quielSened an,
we behold political body possessed of ah
solute power over everything except wher
the increase of some portion of it is prohih
. led by the national compact. In ever
other respect a State would be entirely fire.
! to do as she pleased A State expresses he
: sovereign win through her Legislature
+; This power would be entirely absolute bu
for the restraints which the people have in
) posed upon themselves by State Constitl
] tons These restraints are for the mos
!; part the same as those imposed upon tn
sovereign power in England. Governments
power, then, in this country, is as to th
General Government, such as Is granted I