Imágenes de páginas
PDF
EPUB

court, or any two of them, together with the governor, shall be, and hereby are, constituted a council to revise all bills about to be passed into laws by the legislature, and for that purpose shall assemble themselves, from time to time, when the legislature shall be convened; for which, nevertheless, they shall not receive any salary or consideration, under any pretence whatever. And that all bills, which have passed the senate and assembly, shall, before they become laws, be presented to the said council for their revisal and consideration; and if upon such revision and consideration, it should appear improper to the said council, or a majority of them, that the said bill should become a law of this state, that they return the same, together with their objections thereto in writing, to the senate or house of assembly, in which so ever the same shall have originated, who shall enter the objections sent down by the council, at large, in their minutes, and proceed to reconsider the said bill. But if after such reconsideration, two-thirds of the said senate or house of assembly, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two-thirds of the members present, shall be a law.

And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case the bill shall be returned on the first day of the meeting of the legislature, after the expiration of the said ten days.1

Powers

The grant of power to the legislature was contained in the constitution Legislative and was presumed to be complete, unless restricted. If it was deemed necessary or expedient in the opinion of the framers of the constitution to withhold power from the legislature, this was likewise done in the constitution, and the declarations of rights prefixed to the State constitutions are to be considered as limitations upon the legislative body. Therefore the powers to be enjoyed by the legislative branch of the States did not need to be enumerated in specific terms as in the case of the Articles of Confederation, or in specific and general terms as in the case of the Constitution of the United States, inasmuch as all powers of the State vested in the people of the State, and only such powers, could be exercised by the union of the States as should be granted expressly or by necessary implication. Nevertheless, the people of the States were so accustomed to a declaration of rights that they objected to its absence from the Federal Constitution, and although no power could be exercised by the government thereunder unless expressly or impliedly granted, they insisted upon amendments to the Constitution, of which twelve were proposed by the first congress of the more perfect Union and ten adopted by the States. These amendments, presumed to express the views of the framers of the Constitution, were so contemporaneous with that instrument as to be in fact, although not in form, a declaration of rights appended instead of being prefixed to it.

1 The Constitutions of the Several Independent States, 1781, pp. 63-4.

Executive
Powers

Judicial
Powers

The executive power was vested in the governor or president, as he is called in some of the constitutions, and he exercised, either alone or in conjunction with a smaller body, the executive power of the State. He was the Captain-General or the Commander-in-Chief of the land and naval forces of the State, and his duty was to obey its laws, to secure their universal observance, and to exercise in his discretion the rights vested in him as executive. He was elected, in some cases directly by the people, in others by the legis lature. He appointed officers, in some cases by the advice and consent of the legislature or of one of the branches thereof, although in some States the officials, especially the judges, were elected by the legislature. The practice varied, and because of this variation, difficulty was experienced in hitting upon an acceptable method of choosing the judges in the Federal Convention; and because of the election of the executive, either by the people of the State or by the legislatures of the different States, there were differences of opinion in the Federal Convention difficult to reconcile because of diverse practice and a lack of experience in the case of the election of a president of the United States instead of an executive within each of the States. In the case of the colonies the governor was appointed by the proprietor, as in the case of the proprietary provinces of Maryland and of Pennsylvania, or appointed by the Crown, as in the colonies generally, or elected by the people, as in the case of Rhode Island and Connecticut, in the same manner as a Mayor in a Corporation in England. Because of lack of experience in the colonies as well as in the States, the method of selecting the president, devised by the framers of the Constitution, broke down within a few years after the institution of government under the Constitution, and has been twice amended.

In the matter of the judiciary it is sufficient to say in this connection that courts were organized and existed in each of the colonies, that they were appointed by the proprietors in Maryland and in Pennsylvania, that they were appointed by the Crown generally to serve during the pleasure of the Crown, although there was a determined attempt on the part of the colonies to have them hold office during good behavior, as in the case of the English judges, appointed after and in pursuance of the Bill of Rights of 1689, or they were appointed or elected by the colonial authorities, as in the case of Connecticut and Rhode Island. The final court of appeal was during the colonial period the King in Council, just as the laws of the colonies, with the exception of Connecticut and Rhode Island, were subject to veto under prescribed conditions, by the King in Council.

Under the constitutions of the States there was, as has been stated a judiciary, whose judges were ordinarily elected by the legislature, or, as in the case of Massachusetts, appointed by the governor with the advice and consent

of the Senate, and, because of colonial experience, they held office during good behavior.

There were inferior courts, such as those presided over by justices of the peace; there were county courts, there were superior courts, there were courts of appeal, and there were courts of chancery, in most although not in all, and appeal lay from the lower to the higher courts. The Senate of New York was the ultimate court of appeal, following the English practice in which the House of Lords decides in final resort; the governor and three members of each house forming the court of appeals in Delaware and invested with the jurisdiction of the King in Council. Whether the officer was a legislator, executive or judge, he was responsible to some higher authority according to the principles of the constitutions, subject to impeachment by the legislature and, after trial either by the lower house or separate tribunal, removable from office. The governments under the constitutions were to be governments of law, not of men, in a larger and a more perfect sense than under the charters. The law was the constitution, to be observed by all and to be administered by agents, chosen directly or indirectly by the people of each of the States possessing the right of suffrage, which in most cases was limited, not universal. This law was indeed subject to amendment, but until amended it was binding upon the people who created it and the officials chosen to administer and to observe its provisions. The law of the constitution was superior to the act of the legislature, inasmuch as the creature of the moment was regarded as inferior to the provisions of the constitution in accordance with which the legislature was created and adopted. The constitution itself was in a more restricted sense the creature of the moment and was itself inferior to the creator of all political power.

of Law

It was to be expected that the States would, in the matter of a constitution Source for their union, consider themselves as the source of law, that the instrument of government for the union would prescribe in explicit terms that law, whereof the people of the States were the source and the origin, that it would derive its power from the people of the States, either in convention created for that purpose or by legislatures of the States representing the people thereof, and that the form of government for the States would be based upon the form of government drafted by the States themselves. It was further to be expected that sovereign powers would be transferred from the States and conferred upon the government of the union for the common benefit of the States; that in all other cases the States would reserve to themselves the sovereign powers which they should consider necessary for their local interests and concerns, and that if this distribution of sovereign powers did not seem to safeguard sufficiently their local rights and interests and con

cerns, they would insist upon its amendment; for both by the State constitutions and by the Declaration of Independence of the United States, government derives its just powers from the consent of the governed.

As Mr. Justice Matthews has finely, truly, and impressively said in delivering the opinion of the Supreme Court in Yick Wo v. Hopkins (118 U. S., 356, 369), decided in 1886:

When we consider the nature and theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself, is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the Commonwealth may be a government of laws and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

66

VII

THE FEDERAL CONVENTION: AN INTERNATIONAL CONFERENCE

Philada. Oct. 22-1787.

I send you enclos'd the propos'd new Federal Constitution for these States. I was engag'd 4 Months of the last Summer in the Convention that form'd it. It is now sent by Congress to the several States for their Confirmation. If it succeeds, I do not see why you might not in Europe carry the Project of good Henry the 4th into Execution, by forming a Federal Union and One Grand Republick of all its different States & Kingdoms; by means of a like Convention; for we had many Interests to reconcile. (Extract from letter of Benjamin Franklin to Ferdinand Grand, Documentary History, Vol. IV, pp. 341–342.)

There is no difficulty in defining a state or nation. It is a body politic, a political community, formed by the people within certain boundaries; who, being separated from all others, adopt certain rules for their own government, with which no people without their limits can interfere. The power of each terminates at the line of separation; each is necessarily supreme within its own limits: of consequence, neither can have any jurisdiction within the limits of another, without its consent. The name given to such community, whether state, nation, power, people, or commonwealth, is only to denote its locality, as a self-governing body of men united for their own internal purposes, if two or more think proper to unite for common purposes, and to authorize the exertion of any power over themselves, by a body composed of delegates or ambassadors of each, they confederate. Each has the undoubted right of deciding, what portion of its own power, it will authorize to be exerted in a meeting, assembly, or congress, of all; what it will restrain, prohibit, or qualify. If this can be done by common consent, the terms of their union are defined, and according to their nature, they form a mere confederacy of states, or a federal government; the purposes and powers of which depend on the instrument agreed upon. If they cannot agree, then each state instructs its delegates according to its own will, and sends them to the body in which all the states are assembled by their deputies: each state is considered as present, and its will expressed by the vote of its delegates. The congress of states are left, in such case, to perform such duties as are enjoined, and execute such powers as are given to them, by their respective and varying instructions: the extent of which is testified in the credentials of the separate delegations, as before the confederation of 1781. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 16.)

His Excellency Thomas Collins, Esquire, President, Captain General, and Commander in Chief of the Delaware State; To all to whom these Presents (Seal) shall come, Greeting. Know Ye, that among the Laws of the said State, passed by the General Assembly of the same, on the third day of February, in the Year of our Lord One thousand seven hundred and Eighty seven, it is thus inrolled. In the Eleventh Year of the Independence of the Delaware State An Act appointing Deputies from this State to the Convention proposed to be held in the City of Philadelphia for the Purpose of revising the Federal Constitution.

Whereas the General Assembly of this State are fully convinced of the Necessity of revising the Federal Constitution, and adding thereto such further Provisions, as may render the same more adequate to the Exigencies of the Union; And Whereas the Legislature of Virginia have already passed an Act of that Commonwealth, appointing and authorizing certain Commissioners to meet, at the City of Philadelphia, in May' next, a Convention of Commissioners or Deputies from the different States: And this State being willing and desirous of co-operating with the Commonwealth of Virginia, and the other States in the Confederation, in so useful a design.

Be it therefore enacted by the General Assembly of Delaware, that George Read, Gunning Bedford, John Dickinson, Robert Bassett and Jacob Broom, Esquires, are hereby appointed Deputies from this State to meet in the Convention of the Deputies of other States, to be held at the City of Philadelphia on the Second day of May next: And the said George Read, Gunning Bedford, John Dickinson, Richard Bassett and Jacob Broom, Esquires, or any three of them, are hereby constituted and appointed Deputies from this State,

« AnteriorContinuar »