Abbildungen der Seite
PDF
EPUB

III. The relation between the Legislature and the people. This relation is the most direct, the most simple, and the most easily comprehended of any under our form of government. The most ignorant voter understands that when he casts his ballot for a member of the Legislative Assembly, he is appointing an agent to act with other agents of the people in like manner appointed, in making laws for the State.

As the Convention is the special agent of the people, appointed for a special purpose, so the Legislature is their general political agent, appointed for the purpose of realizing selfgovernment. This is effected through the exercise by this agency, in behalf of the people, of general legislative authority. And it is because a special agent cannot invest a general agent with any power which is already within the purview of his general authority, that a Convention cannot, in a Constitution, grant power to the Legislative Assembly.

It is true that in some cases Courts have, from a habit already referred to, spoken of a general grant of legislative power in the Constitution, but it is manifest that the true meaning to be attached to their language is that the general legislative power is recognized in the Constitution; since, frequently the same Courts and the same Judges, in other cases lay down the true doctrine, so well established, both by reason and authority.

The legislative power comes, not from the Constitution, but from the people direct. It is implied in the very act of electing members of the Legislative Assembly. It is not a special but a general authority, and is unlimited except by the nature of our government, and by the express prohibitions of the Federal and State Constitutions.

To illustrate the nature of this power, let us recur again to one of the most important objects upon which it can be exercised-the suffrage.

The regulation of the suffrage is an ordinary act of legislation. It involves direct relations between the Legislature and the people, and should be performed by a Legislative Assembly consisting of two houses. Hence it is not the function of a single body like a Constitutional Convention. Such a body

meets only at rare intervals, while a wise and prudent regulation of the suffrage must have reference to the exigencies of the times. Is there a great and sudden influx of people into a State from other portions of the country? Then it may be well to require a longer residence in the State. And so of residence in a county or a district. Such questions are peculiarly within the province of a Legislative Assembly.

But the Legislature must not under pretense of regulating the suffrage, interfere with the right.

"All regulations of the elective franchise," says Judge Cooley, "must be reasonable, uniform and impartial; they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do they must be declared void."-(Cooley's Constitutional Limitations, p. 602.)

And in reply to objections which had been made to certain registry laws on the ground that they violated the foregoing rule, he says:

"The provisions for a registry deprives no one of his right, but is only a reasonable regulation under which the right may be exercised."-(Ibid. p. 602.)

By "the constitutional right of citizens to vote," the learned judge undoubtedly refers to the right which is guarantied by the State Constitution. It is a right under our form of government, and is recognized and made the subject of constitutional guaranty.

Suffrage is the mode in which the citizen participates in the government. He cannot, ordinarily, participate in it in any other way. To say that the people have the right to govern themselves, and at the same time to deny that they have the right of suffrage, is a mere contradiction, in different terms. If it be said that the suffrage cannot be a right because it can. ot be exercised until regulations have been made and classes designated to vote, so may it be said with equal truth and propriety that self-government cannot be realized except through forms and modes of action to be prescribed by legislative enactment. And by the same line of reasoning it would follow, therefore, that there can be no such thing as self-gov

ernment.

So, also, with the right to liberty, and property, and with

all other civil and political rights, none of which can be realized and enjoyed except under the regulations and restraints imposed by the necessities of law and order.

What, then, is a legitimate exercise of the power to regulate the suffrage? It must not arbitrarily interfere with the right of the citizen to participate in the government. Every provision in the way of a regulation must, in the language of Judge Cooley, he "reasonable, uniform and impartial." It must have for its object the good of the State, and must find its justification in the nature of things.

The Legislature of a State has not an absolute, arbitrary control over the suffrage. Suppose it should be provided that a native of Indiana should not have a right to vote in Illinois. Would not such a discrimination against citizens of another State residing in Illinois, be a violation of the Federal Constitution, which provides that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States? But without going further into this at the present time, let us take another case.

Suppose it should be provided that only citizens between the ages of thirty and fifty could vote, thus excluding more than half of those ordinarily invested with the suffrage. Would not such a so called regulation be held invalid as an attempt to build up an aristocracy and subvert our government? These extreme cases show that there must be a limit to the power, and that suffrage is a right to be regulated, but not arbitrarily taken away. The limit is stated by the learned jurist already cited, and will be established by the Courts when necessary.

As to the extension of the suffrage by legislative action, that may be considered from two points of view. There may be classes of citizens, who are, according to the principles of our government, entitled to the suffrage, who have been wrongfully excluded from it. In such cases, the Legislature not only has the power, but it is its imperative duty to recognize the right in such classes at the earliest opportunity. This would be, properly speaking, no regulation of the suffrage, but the performance of an act of justice.

Again, there may be a class, who have not necessarily a

right to vote, but whom it would still be competent for the Legislature, in the exercise of a sound discretion, to clothe with the elective franchise. Such an extension would be a legitimate regulation.

For instance, those who, being entitled and qualified in other respects, have resided in the county sixty days but not ninety days. This class might by legislative enactment be permitted to vote, and that would be a regulation of the suffrage. If the person seeking to exercise the elective franchise, is a citizen of the United States and has resided in the State a year and in the county ninety days, his right to vote is guarantied to him by the Constitution of the State. But that does not prevent the Legislature from extending the suffrage to those who have resided in the county but sixty days. In regard to legislative power, there is an essential difference between an extension of the suffrage and a restriction of it. In this case, the essence of the Constitutional provision is, that the Legislature shall not require a longer residence than ninety days in the County. Hence a law requiring four months would be a violation of this provision of the Constitution. But a law requiring only sixty days would stand on an entirely different footing.

Indeed, upon principle, it would follow from the propositions which I have endeavored to maintain, that the Legislature would have full power to extend the suffrage to any class not specified in the Constitutional guaranty; since in case of a guaranty, the maxim, expressio unius est exclusio alterius, does not apply. In order that A should be guarantied the right to vote, it is not necessary that B should be excluded; hence the Legislature may afterward recognize the right in B.

The Courts have, up to this time, it is true, been inclined to look upon the Constitutional provision as exclusive; but some of these decisions have been mere dicta. When it has only been necessary to say that the Legislature could not add to the Constitutional requirements, the Court has held that the Legislature could require neither more nor less than what was specified. The "less" was a dictum and a non sequitur. The adjudicated cases have not been sufficiently numerous nor have

they been sufficiently well considered, to settle the law upon a question of such vast importance.

It may be said that the construction here contended for would enable the Legislature to extend to foreigners the elective franchise, notwithstanding the guaranty to "citizens" in the Constitution. It is true that such a conclusion would follow from the premises. But if such power in the Legislative Assembly be thought a dangerous one, it is easy to guard against it, as some of the States have already done, by inserting in the Constitution a prohibitory clause, forbidding the Legislature to permit aliens to vote. The very fact that such prohibition is found in the Constitutions of some of the States, is sufficient to show that the designation of "citizens" in the Constitution was not cons 'ered of itself sufficient; it being looked upon as a guaranty, and not necessarily exclusive of

other classes.

Why should the Constitutional Convention, which is not properly a legislative body, undertake the exclusive regulation of the suffrage? Such an assumption of power, if attempted, is something to which no legislative body should submit. And the history of the country shows that the Legislatures have not felt willing to have their hands thus tied upon a legitimate subject of legislation. There have been repeated instances of the extension of the suffrage to classes not specified in the Constitution of the State.

In New York, various acts were passed extending the franchise to classes not within the Constitutional guaranty. One of these only will be mentioned;

An act passed April 21, 1818, provided for a brigade to be called "The First Brigade of New York State Artillery;" and Sec. 56 provided that every non-commissioned officer, musician and private of said brigade, "shall, provided he be a citizen of this State, and of lawful age, be entitled to vote at elections in the same manner as if he had actually paid taxes to this State;" and this although the Constitution expressly specified, as one of the qualifications of the guarantied class, that the elector be rated and "actually pay taxes to the State."

One of the first acts of this character was vetoed by the Gov

« ZurückWeiter »