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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (Dec. 8, 1911)
" T&W 'lia?fi--'i"'pi'- . st.t ' I 'I. Tf(f-- 7 -T DECEMBER 8, If 11 supreme law of the land; It la paramount to th power of the legislature. etcThe legislature! are creatures of the constitution: they owe theS existence to the constitution, they derive their powers from the constitution. The constitutioa Is the work or will of the people thoinselve. la their original, sovereign and unlimited capacity. Law is the work or will of the legislature to their derivative and subordinate capacity The one is the work of the creator, and the other of the creature. The constitution fixes limits to the exercise of the legislative authority, and prescribes the orbit in which it must move." Calder y. Bull, 3 Dall. 386, states: It is a self-evident proposition that the several state legislatures retain all the powers of legislation delegated to them by the state constitutions, etc." Fletcher v. Peck, G Cranch 87, says: One legislature is competent to repeal any general act, which a former legislature was competent to pass, and one legislature can not abridge the powers of a succeeding legislature." Hamilton (Works, Vol. 2, page 322) recog nized the exact limits of .legislative power. "Happily for this country the position is not to be controverted that the constitution Is the creature of the people; but It does not follow that they are not bound by It, while they suffer it to continue in force; nor does it follow that the legislature which is, on the other hand, a creature of the constitution, can depart from it on any presumption of the contrary sense of the people. All the authority of the legislature is delegated to them under the constitution; their rights and powers are there defined." ; James Wilson (Elliot's Debates, Vol II, p. 446) says: "The supreme power resides in the people They can delegate it in siich proportions to such bodies, on such terms, and under such limita tions as they think proper." Story, (Comm. 1, Section 628) commenting upon the fact that the new confederation which had been created by the legislatures of the states really had no constitutional authority, re marks: "If the state in its political capacity had it (the right) it would not follow that the legislature possessed it; that must depend upon the powers confided to the state legislature by its own constitution; a state and the legislature of a state are quite different political beings." b. LIMITED POWER; INSTRUCTION AND RECALL These powers of sovereign control over legis lators have been recognized since representative government began in this country. The Body Liberities of Massachusetts Bay Colony, 1641, No. 67, declares: "It is the constant libertie of the freemen of this plantation to choose yearly at the court of election out of the freemen all the general officers of this jurisdiction. If they please to discharge them at the day of election, by way of voto they may do it without showing cause, but if at any other general court, we hould it due justice that the reasons thereof bo al leadged and proved." From laws of New Hamp shire, Volume 1, page 759. The Articles of Confederation (March, 1781) recited: "For the more convenient management of the general interests of the United States, delegates ' shall be annually appointed in such manner as the legislature of each state shall direct to meet in congress on the first Monday in Novem ber of every year, with a power reserved to each state to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year." The original form of constitution Introduced by Randolph In the constitutional convention provided for a house of representatives elected by the people "and to be subject to recall.' Apparently this provision dropped out of the later. forms without discussion. The instances of instructions to delegates in the colonies are too numerous to recite. The Boston town meetings had frequently in structed their representatives, though they were such men, for instance, in 1768, as James Otis, Samuel Adams, John Hancock, and Thomas Cunning, and did so in 1764, 65 b7, '68, '69, '70, '72 and '74. The town meeting in Boston in -May, 1764, after electing four representatives, proceeded to instruct them as follows: "By this choice, we, the free-holders of the town, have delegated you the power of acting in our public con cerns, in general, as your prudence shall direct you; reserving to ourselves the conftutiona right of expressing our minds and giving you such instructions upon important subjects, as The Commoner at any ttme w may Jndge proper,- and then proceeded, through John Adama, who acted as pokesman, to lay down the principle of solf goyornment in opposition to the claims of the British parliament It has been well stated that ZV Utijtional right of expressing thoir ,ndf ? gIv,ng instructions inevitably re sulted from tho "fact that in both Boston and New Plymouth all freemen had originally a personal voice In the transaction of public busi ness at tie general courts." (History of Elec tions In tho American Colonies, by C. P. Bishop.) D. "SOVEREIGNTY" THE ONLY TEST FORM JL What Is Sovereignty? "Sovereignty is tho right to govern." "Our governors are tho agents of tho pooplo and at most stand in the same relation to their sovereigns In which regents In Europo stand to their sovereigns." Justice Wilson in Chisholm vs. Georgia, 2 Dall. 470. Sovereignty necessarily Implies supremacy; it is indivisible, Indefeasible and inalienable, though it may bo delegated. Jameson Con stitutions, p. 20. "There can bo no subordinate sovereignty" "There can not bo two sovoroign powers on the same subject" James Wilson In Elliot's Debates, Vol. II. pp. 443, 450. Hamilton has well said in the constitutional convention (Elliot's Debates, Vol. V, page 202) "two sovereigns can not co-exist within the same limits." This principle makes it impossible that tho sovereignty of the people should co-exist with the sovereignty of the legislature. If a legislature be sovereign it must have final power to make laws; possessed of such power the anomaly is presented of sovereign states which are compelled to create legislatures to be sovereign over tho peoplo who created them. Sovereignty is not a matter of degree but of kind. James Wilson (Journal of Massachusetts Convention, 1788, p. 364) says "In all govern ments there must be a power estab lished from which there is no appeal and which is, therefore, called absolute, supreme and In controllable The only question is where that power is lodged." See also Charles Pinckney in South Carolina Debates (Elliot's Debates, Vol. IV, p. 327). 2. Where is the Sovereignty? a. IN THE PEOPLE "The people are tho only legitmate fountain of power." James Madison, Federalist No. XLIX. "Our political creed Is, without a dissenting voice that can be heard, that the will of the people Is the source,0and the happiness of tho people the end, of all legitimate government upon earth." John Adams In his first message to congress. In the United States the supreme power "re mains and flourishes with the people, and under the influence of that truth we at this moment sit, deliberate and speak that the supreme power, therefore, should be vested in the people is, in my judgment, the great panacea of human politics. It is a power paramount to their constitution, inalienable in its nature and Indefinite in its extent." James Wilson, Journal of Mass. Conven tion, 1788, p. 365. "A share in the sovereignty of the state which is exercised by the citizens at large in voting at elections in a republic ought to stand fore most in the estimation of the law. It is that right by which we exist a free people. That portion of the sovereignty to which each indi vidual Is entitled can never be too highly prized." Hamilton, In Works, Vol. VI, p. 271. "The legislatures have no power to ratify It. They 'are the mere creatures of the state consti tutions and can not be greater than their cre ators. Whither then must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them." It was of great moment, he observed, that this doctrine should be cherished, as the basis of free government. Geo. Mason of Virginia (Elliot's Debates V, p. 352). Abraham Lincoln said in a speech at Peoria in 1854: "According to our ancient faith the just powers of government are derived from the consent of the governed. Allow all the governed an equal voice in the government and that and that only, is self-government." Charles Pinckney, one of the delegates in tho Philadelphia convention, gpolce in the ratlfytM convention of South Carolina (Elliot's DebaU. Vol. IV, pp. 318, 32G), aa follows: "We havo been taught here to believe that all power of right bolongn to tho people; that it flows Immediately from them, and la dologate4 to thoir ofllcors for the public good; that oar rulors aro the servants of tho peoplo, amonabie to thoir will and creatod for thoir uso." Speaking of the United Netherlands, ho says: "According to my ldoa of the word It la not a republic; for I conceive It as IndlBponsablo in a ropubllc that all authority should flow from tho people. b. PASSAGE FROM STATE TO PEOPLE Tho Idea of sovereignty in tho pooplo was not original with tho makers of tho constitution. Locke and Rousseau had long boforo expounded tho principle It found Its first great expression In tho Declaration of Independence at tho hands not of tho peoplo but of "tho representatives of tho United States of America In Congress as sembled." There 1b no doubt that tho orlgnal conception of sovereignty by tho colonics was that of corporate sovereignty. Tho articles of con federation wore made not by tho pooplo but "be tween tho states of Now Hampshire, Massa chusetts Bay, etc.," and oach stato asnortod therein "Its sovereignty, freedom and Indepen dence." Tho articles wore preparod by a legislature which had no authority from tho peoplo, and they were referred for ratification not to tho peoplo but to tho legislatures of tho stato. Tho submission by tho peoplo this loglBlatlvo usurpa tion in tho framing of thoir national govern ment shows how Imperfect was tho oxlstlng con ception of popular sovereignty. Tho peoplo had just formed their constitutions and hugged thorn as a dear possession secured by their blood nnd sufferings. They were jealous of their stato independence, and tho weak alliance of tho confederation proved pitiably Ineffective becauso the states would not trust sufficient delegation of national power. "Oliver Ellsworth of Connecticut, said In the federal convention: "As to tho first point ho observed that a now set of Ideas seemed to havo crept In slnco tho articles of confederation woro established. Con ventions of the people, or with power derived expressly from tho peoplo, were not then thought of. The legislatures wero considered as competent. Their ratification has been acquiesced In without complaint." On the first Impact of Independence and su preme authority, tho stato seemed to bo tho prize which revolution had secured. The con federation was a beginning not an end; con stitutional confederation constituted progress In popular government. Yet It was but tho opening of the expanding system of self-government which was to ripen Into more perfect forms such as are represented In the full legislative sovereignty of tho people of tho stato of Oregon under their amended constitution. 3. Direct Exerclso of Sovereignty by the People. a.' STATES ENTITLED TO CHOOSE THEIR FORMS Webster described the unlimited power of sovereignty In his reply to Hayne: "The people, sir, erected this government. Gentlemen do not seem to recolloct that the people have the power to do any thing for themselves." George Washington said In bis farewell ad dress: "The basis of our political system is tho right of the people to make and alter their constitutions of government." "For I insist if there are errors In govern ment, the people have the right not only to correct and amend them, but likewise totally to change and reject its form; and under tho operation of that right the citizens of tho United States can never be wretched beyond retrieve unless they aro wanting to themselves." James Wilson, Journal of Mass. Conven tion, 1788, p. 364. The Declaration of Independence, to the principles of which all new states have been expressly required upon their admission to tho union to conform, asserts the supremo right of the people "to institute new government, laying its foundation on such principles and organizing its powers In such form as to them shall seem moBt likely to effect their safety and happiness." The people of Buckingham county in structed their delegates to the Virginia conven tion, which first declared the Independence of the colonies, In the words, "the Supreme Being jf. r u.. (ygfr&ftjMterauM8"