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ELECTION CASES.

RICE v. FOSTER.

In the Court of Errors and Appeals of Delaware.

JUNE TERM 1847.

(REPORTED 4 HARRINGTON 479.)

[What questions may be submitted to a popular vote.]

The people have no legislative power in their primary assemblies; they have divested themselves of it by the constitution, and can only resuine it in the forms therein prescribed, or by revolution.

The general assembly cannot delegate the power of making laws to the people at large; nor can they make it to depend on the assent or approval of any other body.

Case Stated. This was an action of debt upon a lease from Edward L. Rice to John Foster, of a tavern-house in Wilmington, at a yearly rent of $700, with a proviso that the rent should be only $500, “ if, by the law of this state, the court of general sessions have not, at the May Term 1847, any lawful authority to recommend to the governor, any person to keep a public-house or tavern for the sale of intoxicating liquors, within the county of New Castle.” One quarter's rent was due, by the terms of the lease, on the 8th of May 1847; the defendant paid $125, and refused to pay any more; and this suit was brought for the residue. The substance of the act of 1847, the validity of which was the question in the cause, is stated in the opinion of the court.

J. A. Bayard, Wales and Clayton, for the plaintiff.

Smithers, Bradford and Layton, for the defendant.

(What questions may be submitted to a popular vote.) Booth, C. J. The question arising upon the statement of facts submitted to the court is, whether the judges of the court of general sessions of the peace and gaol delivery have any

lawful authority to recommend to the governor of the state, any person or persons to keep an inn, tavern or public house of entertainment, for the sale of intoxicating liquors, within the county of New Castle. At a very early period of our colonial government, licenses to keep inns, taverns and public houses of entertainment, were granted by the governor, upon the recommendation of the judges of the court of general sessions of the peace and gaol delivery; spirituous and vinous liquors were retailed by virtue of this license, although not mentioned in its words. With a few slight modifications, the law on this subject has continued in force to the present time.

The legislature of this state, at their late session, passed an act, on the 19th day of February last, authorizing the people, in their several counties, on the first Tuesday of April 1847, to decide, by ballot, whether the retailing of intoxicating liquors should be permitted among them. If a majority of votes in any county, at such election, was for “no license,” by the terms of the act, the retailing of intoxicating liquors is prohibited within such county; and the judges of the court of general sessions of the peace and gaol delivery have no lawful authority to recommend any person for a license to keep an inn, tavern or public house of entertainment; if a majority of votes was for "license,” the law continues in force, and licenses are to be granted as heretofore. The question, then, depends on the validity of the act of the 19th of February 1847 (10 Vol. 178); and if valid, on the result of the popular vote in New Castle county, at the election held on the first Tuesday of April last.

Admitting, for the sake of the argument (but it is denied by a majority of this court), that the alleged returns are properly authenticated, and afford sufficient legal evidence that a majority of the votes in New Castle (What questions may be submitted to a popular vote.) county was against licensing the retailing of intoxicating liquors; then the important question which has been argued in this cause arises—whether the act of the 19th of February is unconstitutional.

The proposition that an act of the legislature is not unconstitutional, unless it contravenes some express provision of the constitution, is, in the opinion of the court, untenable. The nature and spirit of our republican form of government; the purpose for which the constitution was formed, which is, to protect life, liberty, reputation and property, and the right of all men to attain objects suitable to their condition without injury by one to another; to secure the impartial administration of justice; and generally, the peace, safety and happiness of society; have established limits to the exercise of legislative power, beyond which it cannot constitutionally pass. An act of the legislature directly repugnant to the nature and spirit of our form of government, or destructive of any of the great ends of the constitution, is contrary to its true intent and meaning; and can have no more obligatory force, than when it opposes some express prohibition contained in that instrument. It is irrational, to maintain that such an act is a law, when it defeats the very object and intention of granting legislative power. Therefore, an act, such as that mentioned in the argument, to make a man a judge in his own cause, would not be valid; because it never was the intention of the constitution to vest such power in the legislature, the exercise of which violates the plainest principles of natural justice. So also, an act is void, if it palpably violates the principles and spirit of the constitution, or tends to subvert our republican form of government; of this character, it is contended, is the act of the legislature of the 19th of February 1847.

The powers of government in the United States are derived from the people, who are the origin and source of sovereign authority. The framers of the constitution of (What questions may be submitted to a popular vote.) the United States, and of the first constitution of this state, were men of wisdom, experience, disinterested patriotism, and versed in the science of government. They had been taught by the lessons of history, that equal, and indeed greater, dangers resulted from a pure democracy, than from an absolute monarchy: each leads to despotism. Wherever the power of making laws, which is the supreme power in a state, has been exercised directly by the people, under any system of polity, and not by representation, civil liberty has been overthrown. Popular rights and universal suffrage, the favorite theme of every demagogue, afford, without constitutional control, or a restraining power, no security to the rights of individuals, or to the permanent peace and safety of society.

In every government founded on popular will, the people, although intending to do right, are the subjects of impulse and passion; and have been betrayed into acts of folly, rashness and enormity, by the flattery, deception and influence of demagogues. A triumphant majority oppresses the minority; each contending faction, when it obtains the supremacy, tramples on the rights of the weaker;, the great aim and objects of civil government are prostrated, amidst tumult, violence and anarchy; and those pretended patriots, abounding in all ages, who commence their political career as the disinterested friends of the people, terminate it, by becoming their tyrants and oppressors. History attests the fact, that excesses of deeper atrocity have been committed by a vindictive dominant party, acting in the name of the people, than by any single despot. In modern times, the scenes of bloodshed and horror enacted by the democracy of revolutionary France, in the days of her short-lived, misnamed republic, shocked the friends of rational liberty throughout the civilized world; there, in the midst of the most refined and polished nation of Europe, the guillotine dispensed with the forms of law, as unmeaning pageants; and under the capricious mandates of popular frenzy, running

(What questions may be submitted to a popular vote.) wild in pursuit of the phantom of a false, licentious liberty, “suspicion filled their prisons, and massacre was their gaol delivery."*

In the convention of 1787 which formed the constitution of the United States, the spirit of insubordination, and the tendency to a democracy, in' many parts of our country, were viewed as unfavorable auguries in regard both to the adoption of the constitution and its perpetuity. The members most tenacious of republicanism were as loud as any in declaiming against the vices of democracy. Mr. Gerry of Massachusetts, the friend and associate of Mr. Jefferson, thought it “the worst of all political evils.” The necessity of guarding against its tendencies, in order to obtain stability and permanence in our government, was acknowledged by all; even the propriety of electing, by an immediate vote of the people, the first branch of the national legislature, was seriously questioned by some of the ablest members and warmest advocates of a republican form of government. Mr. Sherman of Connecticut opposed it, on the ground that the people were constantly liable to be misled; and he insisted, that the election ought to be by the state legislatures. Mr. Gerry remarked, that “he did not like the election by the people;" he said, “the evils we experience flow from the excess of democracy; the people do not want virtue, but are the dupes of pretended patriots.” Mr. Madison, although he considered “the popular election of one branch of the national legislature, as essential to every plan of free government, was an advocate for the policy of refining the popular appointments by successive filtrations." Mr. Edmund Randolph of Virginia observed, “that the object was, to provide a cure for the evils under which the United States

* The reign of the Commune, in Paris, in the year 1871, exceeded, if possible, in atrocity, the excesses of the first revolution, and dwarfed the Reign of Terror almost into insignificance. A sad spectacle, indeed, of the abyss into which a highly civilized people may fall headlong, who have thrown aside the restraints of the Christian religion, and abandoned themselves to the pursuit of a false social theory!

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