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cised in approving or disapproving the result. And after the Convention adjourns, though he may find his right to vote recognized and guarantied in the new Constitution, his title to the suffrage is no better than it was before. A man may be protected by law in the possession of his farm, but that has nothing to do with the title to the farm. And this brings us to the proper construction which should be placed upon the suffrage clauses in a State Constitution.

Though a Convention cannot confer any political rights upon the people, it can provide safeguards against their violation. If it cannot grant rights, it can guaranty them. And this is what it does do when it specifies in the Constitution certain classes of persons "who shall be entitled to vote," or "who shall be qualified electors." This, properly construed, is a guaranty of the right of suffrage in the classes mentioned. It is equivalent to saying that the Legislature must not interfere with their right to vote. Such a clause is not to be construed as a grant of the right of suffrage, because the Convention is not competent to grant such a right; nor should it be construed as a regulation, because the regulation of the suffrage is an ordinary act of legislation which is peculiarly within the province of a legislative assembly. It is not to be presumed that the Convention has undertaken an ordinary act of legislation, if any other construction can be placed upon the Constitution.

The construction which makes such a clause a guaranty, is therefore, the only one which is consistent with the relation between the people and the Convention and with the proper exercise of legislative power. And what is true of the suffrage, is true of every other political right specified in the Constitution. It matters not though the language may be that of a grant, or of a regulation; since the language is to be construed consistently with the power which the Convention possesses, and not with a power which it does not possess.

The conclusion therefore is, that in its relation to the people, a Constitution is a guaranty of their natural and political rights. In its relation to the people it is this and nothing more. It is not the source of the rights of the people.

II. The relation between the Convention and the Legislature.

The Constitution is not a grant of legislative power. No such grant is necessary. The Legislature was antecedent to the Constitutional Convention and was invested with full power of legislation before the Convention assembled. The Legislature did not derive its power from any Convention. Its power comes from the people; not indirectly through a Constitution, but directly. The power to legislate is implied in the word "Legislature," ex vi termini. The people, having the right to govern themselves, elect members of a legislative assembly for the very purpose of exercising through them the right of self-government. All the rightful governing power that the people have, the Legislature has.

But the people have no right to oppress each other, or to deprive each other of any civil or political rights, and it is not to be presumed that they intended to authorize the Legislature to do what they had no right to do themselves. Legislators, however, do not always bear in mind these maxims. They are apt to forget that they are the servants of the people and to imagine themselves their masters. Hence the necessity of placing limits upon legislative power; and this is one of the functions of the Constitutional Convention. The people do not need a Convention to confer rights upon themselves or power upon a legislative assembly which they have chosen for the very purpose of exercising legislative power for the preservation of their rights. But they do need checks and restraints upon legislative authority, and they call a Convention for the purpose of establishing such checks and restraints as may be

necessary.

When the Constitution says, as in Article IV, Sec. I, of the Constitution of Illinois, "The legislative power shall be vested in a general assembly," etc., the meaning is, not that it shall be now vested, de novo, but that it shall remain yested. It is a mere recognition of power already possessed.

Sometimes there is in a Constitution what appears to be a grant of power upon some special subject, as, for instance, the provision in Sec. 30 of Article V of the Constitution of 1870,

concerning the establishing and opening of roads and cartways, connected with a public road, for private and public use. All such provisions are to be construed as qualifications of some more general provision which is in the form of a limitation. It will be found, upon examination that there is no difficulty in thus construing the section referred to. And it matters not though the language of the Constitution may be that of a grant of power. For here, again, the principle will be applied, that the Convention will be deemed to have acted within the scope of its legitimate powers, and not to have undertaken to do that which it was not competent to do. It is not competent for a Convention, which is only a special agent of the people, to confer power upon the Legislature, which is the general agent of the same principal.

There is to be found, also, in the Constitution, various directions for the exercise of legislative power upon certain subjects. These may generally be construed in accordance with the legitimate function of a Convention as a restraining and guarantying body, and are therefore generally obligatory, in a moral sense, upon the Legislature. In cases where they cannot fairly be thus construed, it may well be doubted how far a Convention has power to dictate to future assemblies the character of their legislation. If the Convention cannot legislate itself, except for a special purpose, how can it say what laws shall be enacted thereafter, otherwise than by way of prohibiting the passage of certain laws, or providing for such as shall make effectual the guaranties of the Constitution?

By a directory provision contained in the Constitution of 1870, Art. VII Sec. 7, it is provided that "The General Assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes." This provision is at the same time a recognition of the power of the Legislature to regulate the suffrage, and a restriction upon that power. It is equivalent to saying, "The Legislature will have power to regulate the suffrage subject to the guaranty in this article contained, but in making such regulations persons convicted of infamous crimes shall be excluded from the elective franchise." [That is, the Legislature shall not permit them to vote.]

This is the only construction that will explain the fact of Sec. 7 standing by itself, and being in the form of a direction to the General Assembly. If the suffrage article of the Constitution were a grant or a regulation of the suffrage, or both, then the Section would have read as follows:

"Every person having resided in this State one year," etc. "who shall not have been convicted of an infamous crime, shall be entitled to vote at such election."

This would have indicated an intention to regulate the suffrage. If Section 1 is a regulation, and if the regulation is complete except as to criminals, what necessity of an act of the Legislature to exclude them from the suffrage? Why not incorporate the exclusion into the body of the regulation?

Thus it will be seen that however the various provisions of the Constitution may be worded, so far as they relate to the action of the Legislature, they may all be reduced to modes of restriction upon legislative power.

This doctrine, which is thus so plainly to be deduced from the principles upon which a State government is founded and from an analysis of the relation between a State Convention and the Legislature, has been recognized and announced by the various Courts throughout the country whenever the question has come up for adjudication.

The Courts have held with great unanimity that a State Constitution is not a grant of legislative power but a limitation upon its exercise.

One of the earliest decisions to that effect was in 1831, in Connecticut, Starr v. Pease, 8 Conn. Rep. 541; which was indorsed eight years afterward in Pratt v. Allen, 13 Conn. 119. Since then the decisions have been uniform.

The principal cases outside of our own State have been,

In New Hampshire, in 1845, Concord Railroad v. Greely, 17 N. H. 55;

In Michigan, in 1849, Scott v. Smart's Exrs., 1 Mich. (Mạnning), 306, and in 1865, Twitchell v. Blodgett, 13 Mich. 127;

In California, in 1854, The People v. Coleman, 4 Cal. Rep. 49, and in 1859, People v. Rodgers, 13 Cal. 159;

In Indiana, in 1856, Doe ex dem. Chandler v. Douglas, 8

Black. 10, and in 1870, Lafayette etc. R. R. Co. v. Geiger, 34 Ind. 185;

In Iowa, in 1858, McMillen v. Lee, 6 Iowa 391, and in 1863, Wright J. in Morrison v. Springer, 15 Iowa 342;

In Virginia, in 1858, Commonwealth v. Drewry, 15 Gratt. 5; In Wisconsin, in 1860, Bushnell v. Beloit, 10 Wisconsin 225;

In New York, in 1861, People v. N. Y. Cent. R. R. Co., 34 Barb. 138; in 1865, Justice Brown in Sill v. The Village of Corning, 15 N. Y. 303, and in 1871, People v. Flagg, 46 N. Y. 401;

In Pennsylvania, in 1868, Page v. Allen, 58 Pa. St. 345, and in 1870, Lewis' Appeal, 67 Pa. St. 153;

In Ohio, in 1871, Walker v. Cincinnati, 21 Ohio St. 14;

In Kansas, in 1871, Leavenworth Co. v. Miller, 7 Kans. 479; In Texas, in 1878, Re Mabry, 5 Tex. Ap. 93, and Logan v. State, Id. 315.

See also Cooley's Const. Limitations, p. 173.

In Illinois, it has been repeatedly held by the Supreme Court that the Constitution is not a grant but a limitation of power. -(Field v. The People, 2 Scam. 79; People v. Wall, 88 Ill. 79; Harris v. Whiteside Co., 105 Ill. 145; Winch v. Tobin, 107 Ill. 212.)

If any doctrine may be considered settled in this country it is this. It is clearly stated by Justice Walker, in Harris v. Whiteside Co. in the following language:

"The question of legislative power, and its extent, depends on the limitations contained in the Constitution. When a State is created it is invested with complete sovereign power, unless restricted by constitutional. limitation. When we have to determine whether an act is within the scope of legitimate power, we do not look for an express delegation of the power in the fundamental law, but we look to see whether the general power has been limited."-(105 Ill. Rep. 145.)

The relation, then, of the Convention to the Legislature, is that of a special to a general agent. The special agent has been appointed for the purpose of limiting the powers of the general agent. That, therefore, is the function of the Constitutional Convention, in its relation to the Legislative Assembly.

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