684 THE ILLINOIS RATIFICATION. to the irresistible conclusion that the late convention was subject to the constitution and the laws, and its powers were limited to the purposes specified in the law calling it into existence." Brief for Respondents, by C. Beckwith, F. Fulton & Co., Printers, 148 Lake street, Chicago, pp. 21-22. Per contra, B. F. Ayer (Brief printed by the Chicago Times Book and Job Printing Establishment, No. 74 Randolph street, 1862), "The convention has the sole power of determining what shall be the organic law, and whatever it prescribes (subject in some cases to the ratification of the people) becomes a part of the constitution. The courts cannot control or annul its de cision." P. 19. W. C. Goudy (Brief 21-47 pp.): The convention had power to pass the ordinance as to elective officers in Chicago (pp. 26-42); also to legislate (pp. 42-44); and these principles were exhibited in the State of Illinois (under the constitution of 1848), (pp. 44-46). Melville W. Fuller (Brief, 49-74 pp.): "The convention assembled to make organic laws. It is difficult to see what tribunal has a right to say that any ordinance adopted by them does not thereby become, ipso facto, the supreme law. So far as their power is concerned they could adopt a code and make that the organic law. Where is the limitation? They met to frame a constitution, who shall say what shall or shall not be put into it?" P. 71. MS. marginal note on this opinion by Judge John A. Jameson: "Fundamental law is this provision, all other that of the legislative. But the frontier is undefined. That may leave some cases in doubt. But take a clear case, we can pronounce the action of the convention to be usurpative, although there is no mode of undoing its work. There may be no sanction and yet it may be guilty of transcending its proper sphere. That there is none, is the misfortune of the people, not the warrant or excuse of the convention." "It is equally well settled that the convention had power to repeal laws." (Fuller, Brief, p. 72.) MS. and marginal note by Judge Jameson: "But only by constitutional provision. If it should attempt to do so by ordinance, it would be usurpation. To be sure, the people might ratify, but that would only legitimate the result, not make the action, ab initio, valid and legitimate." Also, per contra, F. H. Kales. (Brief, 10 pp.) The sovereign power of a convention was decided, adversely, in the Cases of Wells and Others vs. The Election Commissioners (of Philadelphia) (1873), 75 Pa. State Reports, 39. See also "The Power of the Constitutional Convention Containing the Pleadings, Briefs, THE ILLINOIS RATIFICATION. 683 States. And perhaps fewer are aware that President Lincoln, in his inaugural, declared that he had "no objection 1 In the Reconstruction Convention of Mississippi, of 1865, the proposed amendment of 1860 was characterized as "an amendment-which would have secured forever, the institution of slavery, until each State, of its own free will, saw fit to abolish it. But our people under the excitement which existed, and in the madness of the hour, disregarded and rejected the proposed amendment." Proceedings and Debates, 142. This case, mentioned in note (4), The People of the State of Illinois, Ex rel., etc., involved the question of the powers of a Constitutional Convention. Mr. Beckwith, of counsel for the Respondents; Coventry, Tuttle and Wayman, Police Commissioners of Chicago, argued, "that the legislature had power to define the duties of the convention, and the purposes for which the delegates to that body should be elected." "I am unwilling to believe that the framers of the present constitution (Illinois, 1848), having these ends in view, intended that a convention which should be assembled thereafter for its revision, alteration and amendment, with the same ends in view, should have power to abrogate one provision after another until every vestige of a constitutional government was destroyed, and then usurp the supreme authority of the government itself." "As before remarked, the people when they voted for and elected delegates to the convention, never intended that it should have any powers, other than what the law conferred upon it. The people never intended to delegate to the convention the supreme authority of the State, with power to repeal and pass laws at its will and pleasure. The people elected the delegates to frame a constitution under the law, and submit it to them for their adoption or rejection, and for no other purpose. The powers of the convention were neither legislative, executive nor judicial, but related to an organic law, prescribing the form of the government, imposing duties upon its several departments and restraining them within certain limits. The office of such a law is to declare in whom the several powers of the government shall be vested, and to impose duties and restraints upon each of its departments. Beyond these provisions the convention had no power to go, and when it transcended these limits its acts were void, even with the adoption of them by the people. If it could pass laws, and put them in force by a vote of the people, it could have tried cases and had its judgments become binding in the same manner. Taking well-established principles as our guide, they lead 684 THE ILLINOIS RATIFICATION. to the irresistible conclusion that the late convention was subject to the constitution and the laws, and its powers were limited to the purposes specified in the law calling it into existence." Brief for Respondents, by C. Beckwith, F. Fulton & Co., Printers, 148 Lake street, Chicago, pp. 21-22. Per contra, B. F. Ayer (Brief printed by the Chicago Times Book and Job Printing Establishment, No. 74 Randolph street, 1862), "The convention has the sole power of determining what shall be the organic law, and whatever it prescribes (subject in some cases to the ratification of the people) becomes a part of the constitution. The courts cannot control or annul its de cision." P. 19. W. C. Goudy (Brief 21-47 pp.): The convention had power to pass the ordinance as to elective officers in Chicago (pp. 26-42); also to legislate (pp. 42-44); and these principles were exhibited in the State of Illinois (under the constitution of 1848), (pp. 44-46). Melville W. Fuller (Brief, 49-74 pp.): "The convention assembled to make organic laws. It is difficult to see what tribunal has a right to say that any ordinance adopted by them does not thereby become, ipso facto, the supreme law. So far as their power is concerned they could adopt a code and make that the organic law. Where is the limitation? They met to frame a constitution, who shall say what shall or shall not be put into it?" P. 71. MS. marginal note on this opinion by Judge John A. Jameson: "Fundamental law is this provision, all other that of the legislative. But the frontier is undefined. That may leave some cases in doubt. But take a clear case, we can pronounce the action of the convention to be usurpative, although there is no mode of undoing its work. There may be no sanction and yet it may be guilty of transcending its proper sphere. That there is none, is the misfortune of the people, not the warrant or excuse of the convention." "It is equally well settled that the convention had power to repeal laws." (Fuller, Brief, p. 72.) MS. and marginal note by Judge Jameson: "But only by constitutional provision. If it should attempt to do so by ordinance, it would be usurpation. To be sure, the people might ratify, but that would only legitimate the result, not make the action, ab initio, valid and legitimate." Also, per contra, F. H. Kales. (Brief, 10 pp.) The sovereign power of a convention was decided, adversely, in the Cases of Wells and Others vs. The Election Commissioners (of Philadelphia) (1873), 75 Pa. State Reports, 39. See also "The Power of the Constitutional Convention Containing the Pleadings, Briefs, ANTAGONISTIC FORCES. 685 to its being made express and irrevocable." But man and nature were against the principle of the proposed amendment. We shall see how it was ignored by the Nation. Arguments of Counsel and Opinion of the Justices of the Supreme Court of Pennsylvania" in these Cases. Philadelphia: King & Baird, Printers, 607 Sansom street, 1873, 206 pp. The sovereign power of a constitutional convention was decided, favorably, in Sproule vs. Fredericks, 69 Miss. 898. (1892.) Commenting on the Chicago Cases, Judge Jameson remarks: "This case was decided by the Supreme Court against the Relator on the ground that by (the people's) rejecting the constitution, the whole constitution fell to the ground, including the Chicago ordinance. The court below decided the same way, but upon different ground. The decision in this case is decisive of one point, that-the Constitution and ordinances formed for submission-got no validity at all from the fiat of the Convention." 1 For the numerous resolutions submitted to the House, see Journal, 36th Congress, 2d Session, December 3, 1860, et seq. They are also given in the Globe. |