DRAFT
A-  I
CONSTJTLITION
PUBLISHED UNDER THE DIRECTION OF A COMMITTEE
OF CITIZENS OF COLORADO,
FOR
SIDER$TI(]N AD DISUSI[)
BY THE
CITIZENS OF THE CENTENNIAL STATE.
DENVER, COLO.:
CHAIN & HARDY, 414 LARIMER STREET,
-I875.
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DVERTISEMENT.
The draft of a Constitution submitted to the public in
this pamphlet, is the production of a gentleman who, during
the whole of the past twenty-five years, and while engaged
in the active practice of the law, devoted himself to the
investigation of legal and educational sciences, and to the
work of legal and educational reform.
It is his desire to publish his draft anonymously, because
it will thus be impossible for even the most envious "poli     tician" to imagine in the author a possible rival for office.
The undersigned citizens of Colorado, believing that
many of the principles advanced in this draft are of great
value, and that the whole document well deserves the
serious consideration of, and discussion bythe people, have
formed themselves into a committee for its publication.
+  ~ None of the undersigned are responsible for a single
principle or opinion maintained or advocated in any part
of the work; the only responsibility they accept, and this
they do earnestly and gladly, is the expression of the
opinion that some of the principles advanced by the author
are of great value, that the whole scheme deserves the
fullest discussion, and of earnestly urging upon their fel     low citizens to give it their serious consideration.
PETER GOTTESLEBEN.
WM. DINGLE.
WM. C. KINGSLEY.
THOS. F. NICHOLL.
A. F. OVERHOLT.
ALONZO C. MCCOY.'
F. M. F. CAZIN.
E. F. BOOK.
W. C. SPRAGUE.
A. G. BOONE.
E. J. MALLET, JR.
GEO. B. ALLEN.
JOHN WILLIAMSON.
JULIUS LONDONER.
JOHN S. JONES.
LYMAN C. BLOOD.
JOHN WHITLEY.
THOMAS GEORGE. 
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NTRODUCTION,.
The draft of a State Constitution now submitted to the
public for consideration and discussion is not presented as
a perfect scheme. To give time for its discussion before
the meeting of the convention, its preparation has been
somewhat hurried, for it is believed that theprinciples which
it presents are important and true, and will, if adopted into
the Constitution of the Centennial State, form a marked
step in social progress.
The writings of the greatest legist that ever lived,        Jeremy Bentham-to whom, more or less directly, the world
is indebted for every advance in morals and legislation
made during this century, have formed the groundwork on
which the present draft is constructed. Modifications to
4       adapt it to our conditions, and to avail ourselves of the
latest discoveries in governmental science, have been intro        duced. The universal favor with which the idea of the Ref        erendem has been received, emboldened the author to
introduce it into this draft, whereby the instrument itself
could be greatly simplified without detriment to the princi        ple of the maximization of aptitude and minimization of ex        pense.  Should the Referendum fail to be introduced into
the Constitution, stringent limitations on the legislative
powers of the legislature will have to be imposed to prevent
the happening of frauds such as those so frequent in the
legislatures of the States, by which the people have been
so shamelessly plundered.
Should the proxy system fail to find acceptance, a well
digested electoral law, including a provision for a new elec        tion whenever the fact that fraudulent practices have been
resorted to in the interest of the successful party shall be
proved, will be necessary. 
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Should the principles of this draft be adopted, the chief
officer of the State will be —niot a Governor,-but a Minister
of Justice.
This one feature serves as a key-note to the whole instrument, and places the State which adopts it in the vanguard
of civilization. It announces to the world, that justice and
not force, is the leading feature of the State, and therefore
it may well be hoped the leading idea of its people.
Little hope is entertained that the professional politician,
or with some noble exceptions, the lawyers will fail to give
this draft of a Constitution a bitter opposition. Nor can
it well be otherwise. The end in view in this draft is, and
at the outset is declared to be, the promotion of the happiness of all the inhabitants of Colorado.
Never has the professional politician, never (taken as a
class), have the professors of the immoral and demoralizing
English and English derived systems of law procedure had
any other end in view than their own aggrandizement.
Never has the interest of these classes been other than a
sinister one.
It depends on the people of Colorado to determine
whether they Will continue like their predecessors in other
States, to be the prey of these classes, or whether the Centenial State shall become a beacon of light, in whose rays
the people of all other States may learn how corruption may
be prevented and justice-real justice,-administered; exhibiting in the utmost perfection our condition of civilization will permit us to receive them, the latest developments
of the science and art of government.
After the first few years of experiment, it is hoped and
expected that the appointment of the Minister of Yustice will
be confided to the legislature, and that his tenure of office
will be for life, or at least for a long term of years, unless
removed for cause. In deference to the popular desire to
elect officers, and of that most unhappy principle of "rotation in office," so favored by the community, the election of
or 
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the Minister of Justice is in this constitution left to the Constitutive authority (the people), and the term of office made
far too short.
A small number of persons, such as the committee of the
people formed by a proxy-seated legislature, will be far
better qualified to select suitable persons to fill important
offices, than the multitude can by any possibility be. The
really good men are rarely known to the people; their
choice is generally restricted among noisy demagogues
between whom there is in reality little to choose.
This is still more glaringly the case in the now prevailing method of nominating candidates.
In the electoral code, which it will be the business of the
Legislation minister to prepare, a system for nominating
candidates may be provided, by which most, if not all, of
the evils of primary and nominating conventions would be
avoided.
An outline of the system is here suggested.
An election is to come off for any office. To a pre-appointed election officer, a member of the Constitutive authority sends a written nomination of some person whom
he desires to see elected to the office in question. If within
a given time that nomination receives the endorsement of a
certain number of citizens, the nominee becomes a candidate.
In all cases the nominator would be bound to give with
his nomination-paper his reasons for nominating the person
in question.  The nomination with these reasons would be
properly advertised, so that those so inclined might forward
their endorsements of the nominee with any additional reasons they may have for so doing.
Reference is made in Art. X, Chap. II., ~ 7, note 2, to
rules for the maximization of efficiency and minimization of
expense in the public service. Steps being taken to secure
the necessary qualifications,-first by examinations, afterwards by service inan inferior office,-among those equally
qualified competition will take place as to who will accept
the office at the lowest remuneration. 
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How far the "politicians" may be expected to resist the
adoption of such a system of appointment to office may be
judged from the following facts:
The office of County Clerk and Recorder of Arapahoe
County is currently believed to yield to its incumbent an
income, (legitimate but scandalous,) of 15 to 20,000 dollars
per annum. Hundreds of competent persons would gladly
accept the office and perform all its duties for $4,OO000 per
annum. 
Prior to the last election, Captain H. L. Thayer, of Denver, offered to take the office at half the legal fees, and on
this very account was refused even a nomination by the
politicians. He was told his offer had killed his chance
for the nomination, because as this office was so'fat" the
means which it plundered from the people furnished a fund
to the politicians for electioneering!
There are various necessary offices, sometimes provided
for in constitutions, but which the author of this draft has
intentionally left to be provided for by law, seeing that the
Referendum will tend to prevent any objectionable measure
with regard to them from being even proposed, and will
pretty effectually prevent the adoption of any such measure,
should such be presented by the legislature to the people.
The offices in question relate to the armed force of the
state, its police, public lands, finances and education, each
of which would in a state with a large population require a
special administration. Here, many of these offices may be
filled by one person, who may be appointed by the chief
executive.
Important and valuable as the proxy system of locating
legislators is believed to be, the adoption of the Referendum will be so valuable a safeguard against evil legislation
that even the adoption or rejection of the proxy system becomes of comparatively little importance.
It is to the Referendum and to Art. XIV., relating to the
Judiciary, that the attention of the public is most earnestly
invited and which they are urged above all other points to
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insist upon. It is against Art. XIV. that the main spite of
politicians and of the lawyer class will be directed, and, as
it is the most important of all the articles of this constitu    tion, as it is the one on the adoption or rejection of which
depends the continuance in, or emancipation of, the people
from an abject slavery of body, purse and mind, a few words
will be now given to a ratiocinative exposition of the system
of procedure indicated by and dependent upon the provi    sions of this article.
Suppose one man to have occasion to complain of an    other; he goes to the nearest Primary judge and makes his
statement. His statement is to be true, under the like pen alties for mendacity as now exist in the case of perjury. In
a small per centage of cases the Primary judge will decide
that, on his own statement, the complainant has no ground
for suit. The complainant, if dissatisfied, will at once appeal
from this decision to the Appellate judge. In the majority
of cases, and in case the Appellate judge shall reverse the
judgment of the Primary judge, this latter sends to the per    son complained of to come before him at a certain time, or,
if he live in a different judicial district, will send a transcript
of the complainant's statement by mail to the judge of that
district, in order that he may summon the person com    plained of. The statement of the latter being received,
either party cross-examines the other to the fullest extent,
either to establish his own case or to disprove his oppo    nent's.
In a vast majority of cases the cause will now be ripe for
decision; in a few, further evidence will be required. Each
party is called upon to admit, deny, or require evidence of
those points which are necessary to establish his 9pponent's
case.
The denial by a party of a fact which he knows to be
true will subject him to the penalties of mendacity; the requiring proof of a fact which he ought to have known to
be true will be visited by requiring him to pay the costs of
proving the same in any event. 
By this means the necessity for being prepared with evidence to prove technical facts which no man with any sense
of decency, if put on his honor before the public gaze, would
dare to deny,-a necessity which now adds so greatly to
the expense of litigation, and often defeats the party who
ought to succeed,-would be completely obviated.
By the means above indicated, simple cases in the course
of a few days, the most complicated (except where witnesses
are absent from the state,) in the course of about a month
or six weeks, would be brought to a conclusion in the Primary court. Either party being dissatisfied appeals, and the
appeal is heard and decided within from one week to thirty
days from the taking of the appeal.
Procedure similar to the foregoing has place also in
penal cases, but as in these the accused is generally in custody, the suit is determined even more expeditiously, with
the right to the accused at any time to apply for a rehearing
or new trial, on the ground of fresh evidence, or any other
sufficient cause.
No pardoning power, that constant source of corruption,
is anywhere vested beyond the extent provided in Art.
XIII, Chap. II, Sec. II, clause I8; but if any sentence be
found to be excessive, or any conviction complained of as
erroneous, the wrong may be redressed by a rehearing before the same or some other judge.
Let the citizens of Colorado contrast this system with the
agony long drawn out, which now tortures every litigant,
and the chance, nay, the almost certainty of escape at present offered to every delinquent who can purchase the needful delay, and ask themselves why a system so natural and
so obvious has not centuries ago been substituted for the
complicated monstrosity which now prevails.
Under the system here suggested, justice would sleep
only when injustice did;-under the existing system, while
injustice is ever rampant, the sham justice offered to us by
the law wakes up at most twice, and in many counties but
once a year! And then after this monstrous delay, every
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thing is done in so much hurry that it has generally to be
done over again!
In short, so great is the expense, vexation and delay, and
so frequently the wrongfulness of the ultimate decision, under all English derived systems of law procedure (political
causes excepted,) that it is generally far wiser to submit to
any wrong rather than pursue the Will o' the wisp offered
as redress in the name of the law!
It may reasonably be asked:  "If our laws are so defective as here insisted, how comes it that they have been so
greatly prized, how is it that we have preserved so much
freedom?"
Two grand features have existed in the English system
from time immemorial, which contrasted so brilliantly with
the system of Roman procedure which formerly prevailed
on the continent of Europe, that they more than counterbalanced the evils of the English procedure as compared
with the Roman.
Centuries elapsed before it occurred to any legist, that
those features of English law might be adopted into the
Roman, or the Roman system substituted for the English,
with those features preserved.
These two grand features were, the publicity of the
courts, and trial by jury in political causes. In none other
ought jury trial to have place.
Other features, such as the penal responsibility of judges
for violations of personal liberty laws, and the personal re sponsibility of all for participation in tortuous acts, although
committed by subordinates in obedience to superior orders,
have grown out of the two great principles of publicity and
politico-jury trial, and presented a noble contrast to the
systems elsewhere prevailing.
These features of the English system, which our Ameri can jurisprudence has for the past seventy years been grad ually frittering away, are in this draft restored and preserved.
It is not improbable that the politicians will raise the cry
of expense for the purpose of prejudicing the people against 
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the judicial system here advocated. The cry. will be a false
pretense, as the proposed system will be more economical
than the present. Even were it otherwise, it must be conceded that a system which justifies injustice, as does that
now existing, must be abandoned, and if no system for securing justice could be devised except at an intolerable expense, the only proper alternative would be-no law at all.
But, as above stated, the expense of the system here proposed would be actually less than that now existing. True
on the one side there will be a number of Primary and Appellate judges, and government and eleemosynary advocates,-but against these there have to be set the present
staff of supreme court judges, the clerks of the different
courts and their deputies, the probate judges, justices of the
peace, and last, but most onerous of all, the grand and petit
juries and witnesses, more than two-thirds of the expenses
of these last being saved under the system here proposed.
Cast up the expense of all these against those of the proposed astablishment, and the balance will be found greatly
in favor of the system framed to administer justice, as
against that which exists to sanctify evil and evil doers.
Fellow Citizens of Colorado! He who adresses to you
these words and has labored to lay before you the following draft of a constitution, is one whose life has been devoted to the effecting of reforms in the law, which, while
still in his pupillage, he saw to be needed.
For himself he has never sought anything and he seeks
now nothing at your hands. Some among you have already
appreciated the fact that he is laboring only for the cause
and for the people. But his present labor is most probably
his last in this direction. If he can see the main principles
advanced in this work accepted by the people of Colorado,
-if he can but see one single community adopting justice
as the foundation of its political fabric, he will feel his task
on earth completed and be ready to say: "Now permitteth
thou thy servant to depart in peace."
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If, people of Colorado, we would release ourselves from
a slavery none the less abject that so many of us do not
feel our chains; if we would save ourselves, our children,
our country, from the ruin which threatens the Republic
from the demoralization of its people; a demoralization, a
festering corruption, fostered and engendered by the defects,
the avoidable defects, of our existing political systems, while
our schools and our churches do nothing to correct or prevent it, we must arouse from our supineness and take the
reins into our own hands.
He who has labored to produce this work to-day, has
sought in so doing to perform his duty; fellow citizens, do
you now do yours!
THE AUTHOR.
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pray If a aonstltlut'ton
- FOR
THE STATE OF COLORADO.
The people of Colorado do hereby ordain and establish for
themselves a Constitutional Government as expressed in
the following articles:
ARTICLE I.
The name of the state is COLORADO.
ARTICLE II.
The constitution of the United States, and the laws and
treaties made and to be made in pursuance thereof, are the
Supreme law of Colorado.
ARTICLE III.
I. The territory of the State of Colorado is comprised
within the boundary lines following: Commencing on the
thirty-seventh parallel of north latitude where the twentyfifth meridian of longitude west from Washington crosses
the same; thence north, on said meridian, to the forty-first
parallel of north latitude; thence along said parallel west to
the thirty-second meridian of longitude west from Wash
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DRAFT OF A CONSTITUTION
ington; thence south on said meridian to the thirty-seventh
parallel of north latitude, to the place of beginning.
2. The whole territory of the state is divided into districts.
3. Each district is an election district and a primary judicial district.
4. The names and boundaries of the districts are as follows:
,*                   *,  *:         *      *       * 
ARTICLE IV.
ENDS AND MEANS.
CHAP. I.
The end in view in this Constitution, is the promotion of
the greatest sum of happiness for all the inhabitants of Colorado.
CHAP. II.
I. The means sought to be employed are: a) the maximization of official aptitude, and b) the minimization of
expense.
2. Included in the mass of expense are rewards and punishments.
3. Punishment is evil applied to a particular purpose.
4. All punishment is an evil.  It may therefore only be
employed as a means of producing more than equivalent
good, of excluding more than equivalent evil, or of both
combined.
5. Rewards can only be given by government out of matter of good taken from others.  They must therefore never
be bestowed except in exchange for services which confer
greater good upon those from whom the matter of reward
is taken, than the amount of the matter so taken would
otherwise have secured them.
6. Rewards, charges or punishment imposed by law in
violation of the foregoing principles will be declared void
by the Judiciary on all appropriate occasions.
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FOR THE STATE OF COLORADO.
ARTICLE V.
DECLARATION OF RIGHTS.'
I. No person may be deprived of life, liberty or property
without due process of law, after time and opportunity shall
have been afforded him to be heard in his defence.
2. Any judicial officer who shall attempt to give effect
to any law violating the right secured by the Ist Section of
this Article, shall, on conviction thereof, be forever incapable of holding any judicial office in the State. He shall also
be responsible to the party aggrieved, for all damages sustained and for $I,OOo in addition thereto.
3.  Any executive officer who shall attempt to carry into
operation any law violating the rights secured by the Ist
Section of this Article, shall, on conviction thereof, be forever incapable of holding any executive office in the State.
He shall also be responsible to the party aggrieved for all
damages sustained, and for $I,OOO in addition thereto.
4. No warrant for the arrest ot any person or for the
searching of any place shall issue, except upon the testimony
of some person shewing that some crime has probably been
committed, and setting forth the nature of the supposed
crime, the person to be arrested and the place to be
searched.
5. All persons shall be bailable by sufficient sureties,
except on a charge of murder, or of highway robbery with
violence, burglary, or arson, where the accuscd has been
taken in the act.
(I) A declaration of rights is embodied in the Constitution of most of the
States, but their provisions have but too frequently become a dead letter, and
the dearest rights intended to be secured by them have been frequently and
outrageously violated by legislatures, by state and by federal courts, for want
of some "sanctions" to enforce them. Such "sanctions" are supplied in
this draft. The personal liberty laws of England were all of them fruitless
until the habeas corpus act imposed penalties on the judge who should dare to
refuse the writ. To maintain and preserve some of the rights asserted in the
declaration of rights contained in this draft, penalties are imposed on judges
and executive officers who should dare to violate them.
(2)
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DRAFT OF A CONSTITUTION
6. An order to bring into court the body of any person
held in confinement, shall never be refused, unless on the
application for such order it shall appear from the evidence
brought before the judge that the person in confinement is
lawfully so held.
7. The office of any judge so refusing such order, shall,
on his being convicted thereof, be vacated, and he shall be
forever incapable of holding any judicial office in the State,
and he shall be liable to payto the party aggrieved the sum
of $I,OOO, besides all damages.
8. Any person who shall refuse or neglect to obey, or
shall evade service of any such order as mentioned in the
8th Section of this Article, or shall cause or permit any
person in his custody or under his control, to be removed
in anticipation of the service of any such order, shall be
forever incapable of holding any office in the State, or of
being a member of the Constitutive Authority. Fle shall
also be responsible to the party aggrieved for all damages
sustained, and the sum of $5,00ooo, in addition thereto.
9. All trials shall be in public. Parties in all causes
shall be entitled to meet the witnesses face to face, except
where they are out of the State, in which case their testimony
may be taken by rogatory commission.
IO. All persons accused of any offence shall have the
right to demand the nature and cause of the accusation, and,
if in writing, to have a copy thereof free of charge; to have
process to compel the attendance of witnesses at the cost
of the people, and a speedy public trial.
I I. No conviction shall work corruption of blood or
render the convict infamous.
I2. No person shall be deprived of life under process of
law.2
(2) Clauses I I and 12 will render it unnecessary ever to summon a grand
jury. (See the Constitution of the United States, Art. V. of the Amendments.) The worse than uselessness of the grand jury, the injustice of the
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FOR THE STATE OF COLORADO.
I3. No person shall be imprisoned for debt.
14. No law shall be passed recognizing any form of religion or religious worship. Every inhabitant of Colorado
may freely pursue what form of worship he pleases, provided that in so doing he infringe not the rights of life,
liberty, person, or property, secured to others.
I5. 3All oaths are abolished. Evidence shall be given
on solemn declaration or exhortation, to tell the truth
The giving of false testimony shall be punished as has
heretofore been the crime of perjury, until provided for in
the penal code.
I6. Every person may freely speak, write and publish
what he pleases on all subjects, but shall be responsible to
the party aggrieved, for speaking, writing or publishing
what is false; also for speaking, writing or publishing injurious statements of any party, although such statements
may be true, unless it be for the public interest that such
statements should be made or published.
In the penal code provision shall be made for the punishment of persons who may thereafter speak, write, or
publish false statements respecting any person or class of
persons.
system to the accused, the expense to thie community, not merely the money
loss to each county, but the interruption caused to the industrial pursuits of
the members, and of the witnesses so uselessly dragged before it, will be appreciated by all who have ever been on a grand jury. As a grand inquest of
the county, the institution was formerly, and might to-day be of some use, but
unfortunately, in the lapse of ages, its only useful function has fallen into disuse,
and it remains simply a nuisance to be abated whenever common sense enters
into legislation.
(3) No Christian can take an oath without violating the express command of
the author of his religion. Oaths are nets in which tender consciences may be
caught, while the less sensitive pass through the meshes. They enable falsehood to receive the faith due to the truth. Their administration is a logical
absurdity as assuming power over the Almighty in the hand of his creature.
Their use lowers the moral tone of the community by leading to the inference
that it is not Truth which is right, or Mendacity which is wrong, but Perjury.
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DRAFT OF A CONSTITUTION
17. No law shall have any retroactive effect4 except such
as may be passed under the provisions of this Constitution
on the recommendation of a judge or of the Minister of
Justice.
I8. Private property shall not be taken for public use
without just compensation.
19. The military shall be in strict subordination to the
civil power.
20. No act committed by any official, civil or military,
shall, (if otherwise tortuous,) be excusable on the ground of
its having been committed in obedience to the orders of a
lawful superior. Every individual concerned in the committal of a tortuous act shall be responsible, civilly and
criminally, for all the consequence thereof.5
2I. No soldier shall, in time of peace, be quartered in
any house without consent of the owner and of the occupier, nor in time of war, except as prescribed by law.
22. The right of the people to assemble in a peaceable
manner to consult for the common good; to make known
their opinions, and to apply for redress of grievances, shall
not be lessened or infringed.
23. Elections shall be free and equal.
24. All charters of Incorporation granted by the State,
whether made pursuant to general laws or to any special
law, shall be subject to whatever alteration any future legislature may think fit to make in such laws or charter of
incorporation.
(4) In many States retroactive laws have been passed in times of excitement, which have worked great injustice to individuals. The present clause
(I 7) is therefore introduced instead of the usual prohibition of ex post facto
laws, which judicial construction, i.e. judge-made law, has restricted to penal
laws.
(5) This provision restores the old law which had been frittered away by
modern judicial decisions. The maintenance of this provision is of the last
ijmportance for the preservation of liberty. English and Anglo-American
liberty owe more perhaps to this old law than to any other single provision.
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FOR THE STATE OF COLORADO.
25. Whenever any corporation shall be unwilling to accept any such alteration they shall be at liberty to dissolve,
in which case all the property and estate of such corporation shall be administered according to law as follows, viz:
Ist. To defray the expenses of the dissolution and
winding up of the corporation.
2d. To pay and provide for all debts and liabilities,
absolute and contingent, of the corporation.
3d. The residue shall be divided among the parties
beneficially interested in the corporation, ac       cording to their respective interests.
26. Whenever the parties beneficially interested shall be
the people of Colorado, or any particular portion of such
people, the funds shall go to the the department of the State,
to whose function the object of the fund has the nearest
relation, and shall be administered by that department so
as best to fulfil the object of the fund.6
27. The official records ofthe State and of each department of its government, and the judgments of its courts,
shall be evidence of the facts stated or found therein suffieient to throw the burthen of proof on any party disputing the same, but shall never be deemed conclusive evidence
thereof, and the truth may, notwithstanding, be shewn.
28. Foreign judgments and records shall receive the same
faith and credence as though they were judgments or records of a court or department of this State.7
(6) These provisions, ~ 24-5-6, while preventing many of the abuses and
providing means for the correction of the misconduct of corporations avoid
the character of spoliation which attaches to some of the recent Constitutional
and Legislative provisions of many States. Charters of Incorporation create
a legal existence or entity-if the owners thereof do not like the new conditions imposed, they retain all their property, but abandon the existence
which the law created, and instead of a number of persons merged into a
single imaginary entity, the entity is resolved back into the individual existences out of which the law created it.
(7) Borrowed from England has been the pernicious principle of looking
upon the judgment of a court of record as conclusive of the facts found.
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DRAFT OF A CONSTITUTION
29. The State of Colorado desires to render justice to
all, to enforce justice, and to give an example of rendering
it. Therefore the State or any and every branch or department of its government, may be sued in its courts of justice the same as any private person or body corporate.8
ARTICLE VI.
SOVEREIGNTY.
Subject only to the duties of Colorado as a State of the
Union, the sovereignty of the State is in the people.
It is exercised by the CONSTITUTIVE AUTHORITY.
ARTICLE VII.
AUTHORITIES.
I. The authorities in the State are:
a) Original,
b) Delegated.
When it is considered that in civil causes, by reason of its infamous procedure, a large proportion of cases litigated under English and English-derived
procedure, are adjudged in favor of the evil-doer; that in France a person
accused of crime is almost certain to be adjudged guilty; that in Russia a
Record, complete to the very seal of the court and signature of its official recording officer, can be bought where there has never been a suit instituted at
all, and the transcript of the supposed record is consequently wholly fictitious,
the monstrous character of such a rule of law will be apparent.
The true principle, clearly, is that established in this draft.
(8) This is not only a new provision, but it absolutely reverses the law as
hertofore adjudged, and is in direct opposition to express provisions of the
Constitutions of many States. Yet, can anything be more flagrantly unjust
than that the pretended fountain of justice should refuse to render justice,
refuse to be even amenable to justice as administered in the courts it has itself
established! This refusal-of-justice principle is a blind and servile adoption of
the old English law which, as one of the prerogatives of the Crown, forbad
suit to be brought against the sovereign.
Will the people of Colorado be the first to give the bright example of daring to do right, and permit their State to be sued in her own courts by anyone who has reason to complain of her?
To prevent this permission being made  use of by  "politicians" and
"statesmen" of the Tweed class to defraud the people, the various checks
adopted in this Constitution for securing upright judges and for preventing
their being purchased, are essential.
8 
FOR THE STATE OF COLORADO.
2. Original authority lies only in the Constitutive.
3. The Constitutive authority delegates such portions of
its powers as are expressly delegated by this constitution to
a) Legislative authorities,
b) Judicial authorities,
c) Administrative or Executive authorities.
4. The powers delegated by this Constitution are grants
from the Constitutive authority, and are to be construed in
favor of the grantor. They are not a limitation on powers
which but for this Constitution would be absolute or inherent in any of the delegated authorities.,
5. No powers may be implied as delegated to any authority except such as are absolutely necessary for the exercise
of powers expressly delegated by this Constitution.
ARTICLE VIII.
THE CONSTITUTIVE AUTHORITY.
CHAP. 1.
The Constitutive authority is in the whole body of the
inhabitants of the State, who, on the several days which
may be appointed by law for the exercise of their powers
and the operations thereunto preparatory, are resident within the territory of the State, except as follows:
(I) Judicial decisions have shewn the necessity of {{ 4 and 5 of this ar
ticle.  A distinction has been drawn by the courts between the powers  o
Congress and those of the Legislatures of the States. Of the former, no like
ness was to be found in British precedents, hence it was, (and justly,) declared
to be the creature of the law and of the Constitution of the United States, and
that that Constitution was a grant of powers which otherwise would not have
existed. But when the courts came to consider the Constitutions of the
States, they had before them the British theory of the omnipotence of parlia
ment, and the Legislatures of the sovereign States were deemed to be absolute
and omnipotent except where their powers were limited by the State Consti
tutions in consequence of the incapacity of the Judicial mind to escape from
the grooves in which it had been trained, so long as any trace of the old ruts
could be perceived. In this draft the absolute authority is declared to be in
the people, constituting the Constitutive authority; all other authorities are
delegated merely, and the Constitution therefore contains grants of powers to
delegated authorities instead of limitations on powers otherwise absolute
The distinction is important.
9
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.1II.,
I I 
DRAFT OF A CONSTITUTION
I st. Persons under the age of twenty years.
2d. Persons lawfully confined or lawfully ordered to
be confined in any lunatic asylum or prison
on such day.
3d. Persons who may have received relief from any
public fund for the relief of the poor within
three months prior to such day.
4th. Persons unable to read intelligently and intelli       gibly, and to write with moderate accuracy.
5th. Persons who may have failed to comply with
the provisions of the electoral law.
6th. Persons who may have been deprived of the
right to be members of the Constitutive Au       thority by any competent tribunal.
CHAP. II.
THE FUNCTIONS OF THE CONSTITUTIVE AUTHORITY ARE:
I. Enactive.
Exercised by adopting or rejecting this Constitution and
of amendments thereto, and by adopting or rejecting such
bills passed by the Legislature with or without amendments
thereto, as provided by this Constitution.
2. Elective.,
Exercised by electing the several members of the Legislature, the Minister of Justice,2 district and school commissioners and trustees, and district constables.
(I) The terms locative and dislocative would be far more appropriate than
the terms elective and removing, but in deference to the opinions of many who
consider the use of words so unusual as locative and dislocative would add
to the difficulties in the way of the adoption of the principles of this draft, the
comparatively inappropriate terms in the text are employed.
(2) Under this Constitution the Minister of Justice is the most important
officer of the State. His election is left to the Constitutive authority in deference to the prevailing sentiment on the subject of the chief officer of the
State.
It is nevertheless believed that his election ought to be by the Legislature.
After a few years experience it is expected that this will be seen to be the
best, as also that he should hold office for a long term of years. The functions
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3. Removing.,
Exercised by removing the officials elected by them, also
the Chief Executive3 and Judicial officers.
4. Punitive.
Exercised by remitting for trial and punishment by the
authority provided by this Constitution, or of laws passed
pursuant thereto, any of the functionaries removed in the
exercise of the removing function.
CHAP. III.
POWERS OF THE CONSTITUTIVE AUTHORITY. HOW EXERCISED.
SECTION I.
Enactive.
I. Bills passed by the Legislature shall be referred to
the Constitutive Authority for ratification. This reference
to the Constitutive Authority is termed the Referendum.
Bills affecting a special District or Districts only, shall be
referred to the Constitutive Authority of such District or
Districts only.   Each bill will be voted upon by  each
member of the Constitutive Authority as a whole, in groups
of clauses, each clause separately, or partly in groups of
clauses, and partly separately, as each individual member
may think fit.
2. Amendments proposed by any convention for the re-vision of this Constitution will be subjected to the Referendum, and be voted upon as provided in Clause I of this
Section, in relation to bills passed by the Legislature.
of District, or County and School Commissioners and Trustees, ought to be
performed by officials appointed by and responsible to the ministers of the departments to which their functions respectively belong. It is hoped that the
exercise of the Legislative function by the Constitutive authority, as provided
in this draft, will soon reconcile the people to abandon the right to elect these
officials.
(3) The term Chief Executive is preferred to that of Governor or President.
The Chief Executive neither governs nor presides, he is the servant of the
Legislature, to carry out their will, and the fittest term for him would be
Chief Minister, for Minister means servant.
4
I I
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DRAFT OF A CONSTITUTION
3. Excepted from the Referendum are:
Ist. Laws merely repealing existing laws.
2d. Laws passed under the provisions of this Con            stitution on the recommendation of a judge,
or of the Minister of Justice, with reference
to some cause pending in one of the courts
of the State.
8. May go into operation pending the Referendum: laws
declared urgent by a majority of three-fifths of the votes of
the Legislature. 
SECTION II.
Elective.
I. At the time and places at which the vote upon this
Constitution shall be taken, each voter will cast his ballot
for the person whom he desires to elect to the office of
MINISTER OF JUSTICE. He will also give his proxy4 to any
member of the Constitutive Authority to act as his delegate in the next Legislature.
2. If the person receiving the plurality of the votes cast
for Minister of Justice shall receive a majority of threefifths of the total vote, he may hold his office for the term
of five years from the         day of.1876, and until
his successor shall be elected and shall qualify. If no person receive a majority of three-fifths of the votes cast, the
pereon receiving the plurality of the votes cast may hold
-
(4) The system of proxies here suggested, in a country such as ours, where
there is no class needing the protection of secret voting, is so beautifulily simple and gives to everyone so exactly his proper representation and weight in
legislation, that it is hoped no difficulty will be found in getting the people to
insist upon its adoption. The ease with which, under this system, the people
can express their confidence in their delegate, or warn him of their dissatisfaction, is not the least of its advantages.
By no other simple means can it be prevented, that the minority, and often
a small one at that, may sometimes dictate to the majority; or at other times,
that the minority shall not be wholly unrepresented. No complicated electoral machinery is needed to prevent fraud-for as the profit from any fraudulent practices would be certain to be almost immediately lost by the revocation
of the fraudulently obtained proxy, no fraud is likely to be committed.
12 
FOR THE STATE OF COLORADO..
the office of Minister of Justice for two years from the said
day of         I876, and until his successor shall
in like manner, be elected and shall qualify; and such successor may hold the said office for the unexpired part of
the said term of five years from said         day of
I 876.
3. Every person receiving the proxies of not less than
I,ooo members of the Constitutive Authority to act as their
delegate, may be a member of the Legislature for the
period of two years from the           day of, in the
year in which the election takes place.
4. No person shall hold more than 5,ooo proxies in the
Legislature.
5. Any person receiving more than 5,00oo0 proxies may
transfer and distribute the excess to such respective persons
as he may think will be most acceptable as the respective
delegates of the persons whose proxies he respectively
transfers; provided, that each such transferee shall, (such
transferred proxies included,) be the holder of not less than
I,OOO proxies.
6. Persons receiving less than I,ooo proxies may trans   fer them to such persons, respectively, as they may think
will be most acceptable as delegates of the persons whose
proxies they respectively transfer; provided, that each such
transferee shall, (such transferred proxies included,) be the
holder of not less than I,OOO proxies.
7. Proxies may be revoked at the pleasure of the grantor,
and may be granted to any delegate or to any member of
the Constitutive Authority, but no person holding less than
1,000ooo proxies shall be a delegate.
8. At the expiration of each successive period of two
years a new Legislature shall be elected in like manner,
and shall hold office for a like period of two years.
9. At the expiration of each successive period of five
I3 
DRAFT OF A CONSTITUTION
years from the confirmation of this Constitution, another
Convention shall be elected to revise the same.5
IO. The election of each such convention shall be in the
same manner as the election of the Legislature.
II. The Constitutive Authority shall at the same time
proceed to the election of a Minister of Justice for the next
quinquennial period.
I2. If no person shall receive a majority of the votes cast
for Minister of Justice, the Legislature shall elect the Minister of Justice from the two persons having the largest
number of votes.
I3. The election of District and School Commissioners
and Trustees, and of Constables, by the Constitutive Authorities in each District and Precinct, will be regulated by
appropriate legislation.6
I4. Vacancies in the office of delegate, occurring more
than six months prior to the time provided for a general
election, shall be supplied by a new election.
15. A vacancy in the office of Minister of Justice occuring more than one year prior to the appointed time for a
new election, shall be supplied by a new election, and the
person elected shall hold office during the residue of the
term during which the vacancy occurred. If less than one
(5) The means provided in most of the Constitutions for their revision, are
both complicated and difficult to put into operation.
By providing for the periodical assembling of a Convention whose business
shall be expressly to overhaul the Constitution, the errors and omissions which
experience will suggest can be readily supplied.
A main cause for the placing of so many difficulties in the way of revision
has been the proneness of man to think his own work perfect, and the consequent desire to prevent "innovation."  It is the part alike of philosophy and
of practical statesmanship, to recognize the fact of human imperfection. In
recognition of this fact, the provision for the periodical revision, or, rather,
the periodical opportunity to revise the Constitution, has been above adopted.
Probably after one or two quinquennial periods it will be found desirable
to extend the periods between the meeting of each Constitutional Convention.
(6) L. E., In the Constitutional Code.
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FOR THE STATE OF COLORADO.
year of such term shall remain unexpired when the vacancy
occurs, the Legislature shall elect a Minister of Justice to
hold office during the residue of such term.
I6. The first        in the month of October shall be
the day on which general elections shall be held throughout the State after the first.
1 7. The Referendum and special elections shall take place
on such days as may be appointed by the Legislature or by
the Election Minister.
SECTION III.
Removing Function. 7
DIVISION I.
I. In the case of any delegate to the Legislature or to a
Constitutional Convention, the removing function may be
exercised by any member of the Constitutive Authority by
withdrawing his proxy, or transferring it to some one else,
and sending or giving notice thereof to the Election Minister.
2. Whenever the proxies so withdrawn or transferred
shall leave the delegate the holder of less than I,ooo
proxies, the Minister of Elections shall inform the President of the Legislature thereof, who shall announce the
same to the Legislature.
(7) The methods provided in this draft for getting rid of the Minister of
Justice and Chief Executive, should either become obnoxious to their employers, will be specially appreciated by those who remember the case of
President Johnson. Could he have been got rid of by any of the methods
here provided, all the trouble, excitement and disturbance of his trial would
have been avoided.
If a servant, even though so highly placed as the Minister of Justice or Chief
Executive become obnoxious to a considerable majority of his employers,
surely the latter ought to have power to remove their servant, even though he
be not guity of "high crimes and misdemeanors."  The reason for making
it necessary that the Constitutive Authority, instead of the Legislature, should
alone have power to remove the Minister of Justice is, that he, as a judicial
officer, may have to stand between the Constitutive Authority and usurpations
attempted by the Legislature.
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DRAFT OF A CONSTITUTION
3. Unless such delegate shall, within three days thereafter, file a sufficient number of proxies to make up I,ooo,
he shall cease to be a delegate.
4. Proxies may be transferred to him by any other delegate to enable him to maintain his qualification.
5. On ceasing to be a delegate he may, at any time within
seven days thereafter, transfer or distribute the proxies held
by him to, or among, other delegates or a delegate.
DIVISION II.
In the case of the Minister of Justice:
I. On receipt of a requisition for the removal of the Minister of Justice, signed by        members of the Constitutive Authority, the Election Minister, or, if that office be
vacant, the Chief Executive or the President of the Legislature, shall appoint a day on which the vote of the Constitutive Authority shall be taken.
2. If the removal of the Minister of Justice shall be voted
by three-fifths of the votes cast, his office shall be vacated.
3. If the removal of the Minister of Justice shall be voted
by three-fifths of the votes cast on a Referendum, ordered
by a vote of not less than three-fifths of the votes of the
Legislature, his office shall be vacated.
DIVISION III.
The removal of other officers elected by the Constitutive
Authority will be provided for by appropriate legislation.8
DIVISION IV.
In the case of the Chief Executive:
I. On receipt of a requisition for the removal of the
Chief Executive, signed by          members, of the Constitutive Authority, the President of the Legislature shall
put the question of his removal to the Legislature. If his
removal be voted by a majority of three-fifths of the votes
of the delegates, his office shall thereupon be vacated. It
(8) i.e., in the Constitutional Code.
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FOR THE STATE OF COLORADO.
his removal be voted by a less majority, the Referendum
shall be had upon it, and if the vote of the Legislature be
confirmed his office shall be vacated.
2. If there be a majority against the removal of the Chief
Executive of three-fifths of the votes of the delegates, no
further action shall be taken; but if the majority to retain
him shall be less than three-fifths, the President of the
Legislature shall put the question: "Shall the removal or
retention of the Chief Executive be referred to the Consti    tutive Authority?" If the affirmative be carried, the Ref    erendum shall have place, and if there be a majority on
the Referendum to remove the Chief Executive, his office
shall be vacated.
3. When the office of Election Minister shall be filled by
the Chief Executive, or be vacant, the Legislation Minister
shall superintend the election, and perform the duties of
Election Minister on the occasion of every election or Refendurn in which the question of removing the Chief Executive shall be voted upon.9
A
DIVISION V.
In the case of any judicial officer:o
(9) The Legislation Minister, and no other, should under such circumstances perform the functions of Election Minister; i. e., one officer dependent on the Legislature shall perform the duties of another equally dependent,
but, under the circumstances, incapacitated.
If the power were given to the Minister of Justice simply, he and the Chief
Executive might conspire to overturn the government by a fraudulent election. This danger does not exist when the duty is placed in the hands of the
Legislation Minister, even though that office happen to be filled -by the Minister of Justice, for the Legislature can, under this draft, by a simply majority vote, appoint some one else to be Legislation Minister.
(IO) It is earnestly hoped that the people of Colorado will consent to see
their judges appointed for life or during good behaviour.  It is the only way
to secure an independent and upright judiciary, while their partial dependence on the Constitutive Authority and the Minister of Justice, as provided
by this draft, will prevent their independence from becoming arrogance.
Above all, the principle of appointment by a single responsible officer, instead of election, is earnestly insisted upon.
1 7 
DRAFT OF A CONSTITUTION
I. On the receipt of a requisition for the removal of any
judicial officer, signed by          members of the Constitutive Authority, or by one-fifth of all the registered members thereof resident in the District, appellat or primary,
which forms the local field of service of the judicial officer
whose removal is demanded, the Minister of Justice shall
institute an enquiry, and if it shall appear that such judicial
officer is incompetent, corrupt, inattentive, arrogant or otherwise inefficient, or has violated any provisions of the law,
the Minister of Justice shall remove him and appoint some
competent person to his office.
2. If there shall appear no sufficient cause for the removal of such officer, but that by reason of his having lost
or failed to acquire the respect of the inhabitants, his usefulness in his office is impaired, the Minister of Justice may
transfer such judicial officer to some other District.
3. The Minister of Justice may refer final action on the
case to the Constitutive Authority where there does not
appear sufficient cause to remove the judicial officer. A
simple majority shall be sufficient to require the Minister
of Justice to transfer such officer to another District.
SEcTION IV.
Pnuitive.
On the removal of any official by the Constitutive
Authority, each voter may at the same time vote whether
the official to be removed shall be prosecuted for any alleged violation by him of the penal code.
The people can not know and never can learn enough of the character of
individuals to enable them to make a good selection of judges. The best
men are rarely the men whose names are most before the people. Noisy
demagogues who "know the ropes" and how to run the primaries and nominating conventions, and who, to procure a nomination, kow-tow to and hobnob with the dangerous classes, and wink at their crimes, these are the
men who will generally be placed in judicial positions by popular election.
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FOR THE STATE OF COLORADO.
ARTICLE IX.
THE LEGISLATURE.'
CHAP. I.
HOW CONSTITUTED.
I. All members of the Constitutive Authority are eligible as delegates to the Legislature, as also all persons
who have failed to be members thereof only by reason of
a failure to comply with the provisions of the electoral law.
2. The Legislature is elected in the manner provided in
Art. VIII, Chap. II, ~ 2, and Art. VIII, Chap. III, ~ 2,
Clauses I, 3, 4, 5, 6, 7, 8, I3 and I5.
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(I) The principle of a single Legislature will be readily acquiesced in, if
the Referendum be adopted, as in such case the Constitutive Authority is
more a great deal than any second chamber can be. But lest this principle
should fail of adoption, a few words on the question whether the Legislature
should consist of two Houses or one, will be useful:
The principal reason assigned for the adoption of a divided Legislature, i.
e., of two Houses, is that they are a check upon hasty legislation. Argument
from experience and a priori alike show the contrary to be the fact.
To take the apriori argument first:  Evidently increased delay must take
place between the passing of a project by one House and the definite passing
of it by both, and as the time of the session is limited, either by law or in
fact, much less consideration can be given to each measure by either House
than would  be  able to be given to it if there  were but one.   Again,
members of each House will reconcile themselves to giving little consideration to a measure originating there, by the reflection that it will be reconsidered in the other Honse, while members of the other House will reconcile
their consciences to giving little consideration to a bill brought up from one
House, by the reflection that it has already been considered there. Experience
of all Legislatures proves this to be true, an illustration drawn from the proceedings of the last Legislature of Colorado will be specially in point.
A House bill was on its third reading in the Council, the question was put,
"Shall this bill pass?" The ayes and noes were called. Room for further
deliberation there was none.  On the name 6f Mr. Hugh Butler being called
he answered from his seat, "Aye,-I don't know anything at all about it."
On the clerk calling the name of Mr. Fitzpatrick, that gentleman rose and
said, "Aye, but it is understood we are not responsible for this bill."
A further objection to the system of two Houses, is the expense, both as
regards the remuneration of the members of the second House and the expenses of their proceedings and election. Further, by its means the will of
the minority frequently prevails over that of the majority.
(3)
Ig 
DRAFT OF A CONSTITUTION
3. The Judges of Election will canvass all votes and
proxies at the first election under this Constitution, and
will certify the same and transmit said votes and proxies
to the Governor of the Territory, who, together with the
Chief Justice and the United States Attorney, or any two
of them, shall canvass the same, and shall, if this Constitution be adopted, forward to each delegate who shall have
received not less than I,ooo proxies, a certificate of his
election and of the number of proxies held by him.2
Again, the division of responsibility renders corruption more easy, and, on
the supposition that one House is more numerous than the other, it will be
both easier and more effectual to corrupt the members of the less numerous
House than those of the more numerous.
The proper precautions against hasty legislation are to be found in the character of the members of the Legislature, and in rules of order for the conduct of business, some of which should be inflexible, others open to suspension. It does not seem necessary to discuss here, what those rules of order
should be.
Again, if two Houses are to be constituted, how are their members to be
elected? If, by election, they must be elected in the same way or in different ways. No one proposes the former, and as for the latter, one mode must
be better than the other. Solve the difficulty then by adopting the best mode
only, and save the expense of the worse.
A circumstance connected with the progress and development of governamental science will furnish an interesting confirmation of the above views:
The author of this Draft, some years ago, conducted a class in the study of
legal and governmental science, at the Cooper Institute, New York. The
method of instruction adopted was the Socratic, the most powerful for the
detection of error and discovery of truth in abstract science ever invented.
He gave no indication of his own views. By the Socratic method of enquiry the student discovers every truth for himself, the direction only of his
studies being shaped by the questions addressed to him by the Instructor.
The students, one and all, were so prepossessed in favor of two Houses
that the single system seemed to them out of all question; nevertheless, they
all came round, unwillingly but unavoidably, to the conviction that the single
chamber system was the only fit one.
(2) A difficulty might possibly, but not probably, arise under this section.
The Governor, Chief Justice, and United States Attorney, being Federal, and
not State officials, may refuse to canvass the proxies.
Before incorporating this clause in the Constitution it will be desirable to
ascertain from them their willingness to act in the premises.
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FOR THE STATE OF COLORADO.
4. They shall also forward to each person who has received less than I,OOO proxies, a certificate of the fact and
of the number granted to him.
5. Within thirty days after such certificate shall be so
sent, any such person may file with the Governor sufficient
proxies to make up I,OOO, and shall, thereupon, be entitled
to a certificate of election as delegate.
6. Within the like period of thirty days such person may
transfer his proxies, or some of them, to such person or
persons respectively, as he may think will be most acceptable as their delegate, to the persons whose proxies he
transfers.
7. Each delegate shall cast in the Legislature a vote equal
to the number of proxies held by him of the recall whereof
no notice has been received by the Election Minister, or, if
that office be vacant, by the President or Clerk of the Legislature.
8. All future elections shall be under the direction of the
Election Minister and of officers appointed by him. Each
local officer shall canvass the votes and transmit one copy
of his certificate thereof, together with all ballots and proxies to the Election Minister.
9. The Election Minister shall furnish to delegates and
other elected officers, certificates of their election and of
the number of proxies held by delegates under his official
seal.
Io. He shall also furnish a certificate such as mentioned
in Section 4 of this Chapter to all persons receiving less
than I,ooo proxies.
I I. Sections 5, 6 and 7 of this Chapter shall ap,ply to
future elections and Legislatures as well as to the first to
be elected under this Constitution, except that the words
Election Minister shall be read in place of the word Governor in sec. 5.
I2. Each delegate shall, at the commencement of his
term, file with the Election Minister and with the Clerk of
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DRAFT OF A CONSTITUTION
the Legislature, duplicate certificates of the appointment of
a deputy to take his place in the Legislature, in the absence
of the delegate.3
(3) This, which Bentham terms the self-suppletive function, is a feature of
great importance. A very few words will suffice to make its value apparent.
Whatsoever need or use there is for a delegate, or any other official, to act in
his office on any one day, the same there may be, for anything that can be
known to the contrary, on every other, and as the days of unavoidable absence
cannot be forseen, by this provision the need or use is supplied. Further, for
want of it, a mode of corruption can and at all times has been carried on to
an indefinite extent; - corruption which can in no way be guarded against,
neither by penal provision nor by Public opinion. A man Mwho, had he been
in attendance, the apprehension of censure from Public-opinion would have
engaged to vote or act rightly, absents himself, and thereby, though he does
not give to the wrong side the benefit of his vote or act, deprives the right of it.
Instances out of number of this method of corruption might be given from
the annals of all Legislative bodies. Instances of the like method of corruption in the case of officials other than delegates, have occurred recently in
our country, so glaring that they may well serve as a warning.
When the fraudulent bills and vouchers were to be passed by the New
York Board of Audit, during the mayorality of Oakey Hall, he always absented himself from the place where it was his duty to be, and the fraudulent
acts were performed in his pre-arranged absence.
When the infamous Sanborn and Jayne contracts were to be entered into, Mr.
Secretary Boutwell was always conveniently absent, and Mr. Richardson did
the dirty work which Mr. Boutwell was willing to have done, but desired to
be able to say that he was not there at the doing of it.
If, now, Mr. Hall and Mr. Boutwell had had to provide deputies for whose
acts they would themselves have been held strictly accountable, there would
have been no use in either of them getting out of the way while the frauds
were being consummated, and it is therefore probable that they would not
have been perpetrated.  It is obvious that both the appointment and removal
of the deputy must be in the absolute discretion of the man who is responsible for his acts.
A different rule will be found to apply to Judges' deputies. As the reason
for the rule does not exist, so also the rule will be different. For the general
,conduct of the Judge's deputy, the Minister of Justice who appoints him is
responsible to the Public-opinion-tribunal. The Judge will review_and may
reverse the judicial acts he may depute to his deputy, and will be responsible
for those judicial acts so deputed which he adopts, and no further. In the
appointment of the Judge's deputy, the Minister of Justice will so far consult
the wishes of the Judge as not to appoint any one to his court who may be
personally objectionable to him,-to no further extend is it expected that the
Judge will influence the appointment of his deputy after this Constitution has
been in operation for a few years.
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I3. The delegate is responsible for all the acts of his deputy, and may revoke his appointment and substitute another at his pleasure.
CHAP. II.
ITS POWERS.
The'powers of the Legislature are:
I. Legislative.
I. Exercised by drawing up, considering and passing,
projects of laws, or bills, for confirmation by the Constitutive Authority.
2. By repealing existing laws with or without the Referendum, and by declaring urgent, and to have immediate
operation, new laws, pending the Referendum.
3. By directing the mode in which it shall conduct its
business, the mode in which shall be published the various
returns of property, income and expenditure made to it or
to any official by the delegates and by the different officers
of the official establishment of the State, as provided by this
Constitution or by laws passed pursuant thereto, and such
other matters as the Legislature may judge expedient to be
published.
4. By prescribing the remuneration of the President and
other officers of the Legislature, and of extra allowances for
expenses incurred or to be incurred on special occasions by
any of the ministers or delegates.
5. By appointing the times and occasions on which the
Referendum and special elections shall have place pursuant
to this Constitution, and making provision for the expense
thereof.
6. No special law, no law pledging the credit of the State,
binding the State to any contract, or contracting any debt
or obligation, can be declared urgent except for the purpose
mentioned in the next section of this chapter.
7. The first Legislature which shall be elected under this
23
I
4 
DRAFT OF A CONSTITUTION
Constitution shall make provision for the preparation of a
civil code, a penal code, a procedure code, a constitutional
code, and an election code.
8. Until otherwise provided the laws heretofore enacted
by the Legislature of the Territory of Colorado shall have
operation except as follows:4
(4) Although no great mischief could result from allowing all laws to die
out until the passing of the codes ordered by this Constitution to be prepared,
it has been thought on the whole, in the present state of public opinion, desirable to re-enact existing laws, with some few exceptions of ill-judged laws,
to be included in a schedule which, for sufficient reasons, the author has not
prepared, but hopes to see wisely done by the Convention.
But the author of this draft is unhesitatingly of the opinion that it would be
infinitely to be preferred that all existing laws should cease to operate, than
to tolerate in the State, even for a day, the infamous system of legal procedure
and of evidence, which at present prevail.
The existing practice and procedure were framed centuries ago in England,
almost avowedly to encourage dishonest litigation, fraud and perjury, yet this
system was adopted here! Under this system of procedure there has ever
been one law for the rich and a very different law for the poor, while the
courts of law have ever been sanctuaries for the crimes of the wealthy and
powerful.
Society has been held together not by means of but in spite of, the courts,
miscalled of justice, and because the people were better than their laws.
The true principle of procedure, discovered by the master mind of Bentham,
is that of which the model has been before us constantly since the existence
of a family. It is that which every sensible head of a household adopts in
the event of a dispute arising among the members of his household.
But let us imagine him, instead of listening to the complaint and sending
for the person complained of, to refuse to listen to it unless brought written
out in a nonsensical jargon, of which one statement being true, others, without limit as to number, are necessarily false. Imagine him, after the lapse of
several months, to require the party complained of to bring in an equally nonsensical jargon of lies in reply, this to be continued backwards and forwards
for an indefinite time, and then the parties to come before him, and when they
attempt to give their statements, to be rigorously shut out from telling what,
or being asked questions the answers to which might, conclusively establish
the truth; in addition, under penalty of losing their cause, to be obliged to
prove the most nonsensical facts which the opponent, if put upon his honor
under the sanction of public opinion alone, would not dare to contest!-what
now would become of a family so conducted?
Citizens of Colorado! the picture here drawn of the legal practice and procedure now prevailing is only too favorable. It does -not put before you a
24 
FOR THE STATE OF COLORADO.
I. Such laws and parts of laws as are mentioned in
the schedule to this article, which are hereby
repealed.
2. Such as are inconsistent with this Constitution.
3. The entire law of evidence as heretofore in force.
In place of the laws of evidence heretofore
in force, the principles laid down in the "Ra        tionale of Judicial Evidence," by Jeremy
Bentham, are adopted as the only rules of
judicial evidence in force within the State of
Colorado.
4. So soon as the Minister of Justice, to be elected
pursuant to this Constitution, shall have ap        pointed Priniary and Appellate judges in any
district, the practice and procedure  in all
causes shall be summary: Provided, that
tithe of the iniquities, nor a ten-thousandth part of the misery, the present
system inflicts.  And this is the system which will be attempted to be continued upon you, this or some palty modification of it called "a code!"  All
the code systems heretofore adopted have been but palliatives of this monstrous wickedness.
The New York code, on which most of the codes of the States are modelled, enabled David Dudley Field and "Brother Shearman" to concoct their
infamous plots by which Jay Gould and Jim Fisk stole railroads from their
owners, while not one cent has been able to be recovered in all these years
of the millions stolen by "Boss Tweed" from the people of New York.
The only true system, the only system the people should permit to be
adopted, is that of Nature, discovered by the grand genius of Bentham.
As to the laws of evidence, these laws as laid down by Greenleaf and
adopted by our courts, are carefully framed to shut out the truth, and for the
increase of expense, vexation and delay.
Happily this part of the field of legal science was completely, exhaustively
explored by Bentham, whose work, "The Rationale of Judicial Evidence,"
is a finished and perfect system. So perfect is it, that its principles have been
adopted in all scientific investigations; only in law it has not yet been suffered
to prevail, owing to the sinister interest of the professors of the law and of
professional politicians, and the supineness of thepeole.
Citizens of Colorado! will you, like the citizens of other states, permit yourselves to be the shuttlecocks of the lawyers and of politicians, or will you take
hold of the opportunity you now have of emancipating yourselves from thraldom, and become a lodestar and a guide to all the other states of the Union!
25
.4
4 
DRAFT OF A CONSTITUTION
every person shall be entitled, on his de       manding the same, to trial by jury to the ex       tent guaranteed to him by the Constitution
of the United States, or whenever the act
complained of shall be of a political char       acter.
5. The maxim that Sunday, or the first day of the
week, is a dies non, is abrogated. No law
shall recognize any distinction of days except
days set apart as National or State holidays.
6. No district, body politic, or political corporation,
shall have power to contract any debt or ob       ligation in excess of the amount of taxes
estimated to be collected within such district,
body politic, or political corporation, during
the then current fiscal year, without the con       sent of every tax-payer within the same vot       ing upon the question.
2. Elective.5
I. Exercised by electing:
I. Two Senators to the United States Senate.
2. The President of the Legislature and other offi            cers thereof
3. The Chief Executive.
4. The Legislation Minister.
5. The Election Minister.
(5) The number of offices in a State ought to be such that their duties will
employ the whole time of the incumbents.
The duties of Legislation Minister in a State with so small a population as
ours would occupy but a small part of the time of one man, and as his duties
require a similar talent to that of the Minister of Justice-the two offices may
be fitly held by one person.
Similar considerations suggested the permission for the Chief Executive to
be also elected Election Minister. In neither case should the two offices respectively be merged into one, because the Legislation Minister and the Election Minister ought to be removable at the simple will of the Legislature,
while more difficulty should, as has been seen, be placed in the way of the
removal of the Minister of Justice and of the Chief Executive.
26 
FOR THE STATE OF COLORADO.
2. The person holding the office of Minister of Justice
may be elected Legislation Minister.
3. The Chief Executive may be elected Election Minister.
4. The President of the Legislature, the Chief Executive, the Legislation Minister and the Election Minister
will each be elected for the period of two years.
3. Removing.
I. Exercised by suspending any delegate for misconduct,
in which case his deputy shall act in his place until a new
election be ordered by the Legislature, or the suspension
be removed.
2. By suspending the Minister of Justice by a majority
of three-fifths of the votes of the delegates, until the decision of the Constitutive Authority can be obtained as to
his removal.
3. By removing the President of the Legislature or any
other officer thereof.
4. By removing the Chief Executive.
5. By removing the Legislation Minister.
6. By removing the Election Minister.
7. A vote of three-fifths of the votes of the delegates
shall be required to remove the Chief Executive.
8. The other officers named in this Chapter may be suspended or removed by a majority of the votes of the delegates.
CHAP. III.
REMUNERATION.
I. Each delegate shall be entitled to a remuneration of
$        per diem for each day's actual attendance during
the session of the Legislature. If any delegate shall be
absent during part of the day's sitting of the Legislature,
a rateable proportion shall be deducted from his per diem.
4 
DRAFT OF A CONSTITUTION
2. No sitting shall continue for more than eight hours in
any one day, except by vote of a majority of three-fourths
of the members of the Legislature, each member casting a
single vote.
3. Whenever a deputy shall take the place of the delegate (his principal) such deputy shall receive the per diem,
or the rateable part thereof, for his attendance during the
sitting, or part thereof, of the Legislature, in the place of
the delegate.
4. Any contract, bargain, or understanding, by which the
delegate should receive the whole or any part of the remuneration payable to the deputy, shall be void, and the entering into the same shall vacate the office of the delegate
from the day of the date thereof.
5. Mileage amounting to            per mile, one way, for
the entire distance from his home to the place of sitting of
the Legislature, shall be allowed to each delegate each session of the Legislature.
CHAP. IV.
DUTIES AND LIABILITIES.
I. It is duty of every delegate to attend every sitting of
the Legislature throughout its entire duration.
2. It is the duty of each delegate to see that his deputy
supplies his place in case of his own necessary or unavoidable absence.
3. Every delegate shall make and deliver to the Clerk of
the Legislature, within sixty days after the receipt by him
of his certificate of election, a full and complete statement
in writing, signed by him, of all his property, -real, personal, and mixed, possessed or enjoyed by him, or by any
person for his use; and. thereafter, once in every two months,
so long as he shall continue such delegate, shall make and
deliver to the said clerk, a true and complete statement and
account in writing, signed by him, of all moneys and prop
28
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'I 
FOR THE STATE OF COLORADO.
erty or effects, received disbursed or parted with by him, or
by any person for his use, during the preceding two months.
At the end of each year he shall make a full and complete
statement, in writing, signed by him, of all his property,
real, personal, and mixed, possessed or enjoyed by him, or
by any person for his use.6
4. Neglect to make such returns or any of them for the
period of thirty days, shall vacate his office and the Election Minister shall immediately, on being notified thereof,
order a new election whenever such neglect shall take place
more than six months prior to the time provided for a general election.
5. Any error or omission in any such return, to the
amount of $5.oo in one sum or of $Ioo in the aggregate,
(6) The provisions contained in this Draft requiring officials to make, and
for the publication of, returns of their property and income, though novel,
will be readily seen to be just and expedient.
If a private individual evades payment of a tax, the loss to the government
is small; nevertheless the government claims, and has conceded to it, the
power to make the most rigorous investigation into the private affairs of every
citizen, lest one out of thousands should evade payment of its claims npon
him. 
The private citizen does not place himself in any position to have thrust
upon him the duty of paying the tax, the government comes to him and insits on his paying it.
If then, this investigation into the private affair; of private citizens is justifiable, how much clearer the justice, nay how necessary, must be the like
investigation into the affairs of every official.
An official does not have his office thrust upon him, he accepts, and generally he has sought it. Accepting it, he does so with all its conditions, and
there can be no shadow of injustice in requiring him to give to the public a
faithful and periodical return of all his sources of income and expenditure.
Peculation or corruption by an official inflicts a loss many times more severe
upon the government than does the evasion of a tax by an ordinary citizen,
besides tending to demoralize the entire community.
Apply then, on this so much more important occasion, and to the functionary, the preservation of whose honesty is of so much greater necessity, the
rule adopted on the less important occasion and to less important individuals.
Require of each official an account of all the moneys and property that pass
through his hands, and an enormous obstacle is placed in the way of all kinds
of corruption by the matter of wealth.
29 
DRAFT OF A CONSTITUTION
shall also vacate the office of the delegate making such
error or omission, and a new election shall be ordered, as
provided in Section 4 of this Chapter.
6. Any such neglect, error, or omission, as described in
Sections 4 and 5 of this Chapter, shall, if made intentionally, render the delegate, when convicted thereof, forever
incapable of holding office in the State, and shall also subject him to a fine of not less than $5oo; and not exceeding
ten times the amount of the error or omission so intentionally made, or of the amount intentionally neglected to be
returned.
7. All statements and accounts rendered pursuant to the
provisions of this Chapter, shall be published by the Clerk
of the Legislature within forty days after the receipt thereof by him.
CHAP. V.
CONTINUATION COMMITTEE.
I. Each Legislature shall'appoint        persons, being
either members of the existing Legislature or of the preceding one, as a Continuation Committee, who shall continutre to sit after the adjournment of the Legislature.
2. Such committee shall labor with the Legislation Minister in the preparation of the codes ordered to be prepared
by this Constitution, and in the preparation of bills to be
submitted to the Legislature.
3. They shall, not less than twenty days prior to the assembling of the Legislature, transmit to the Minister of
Justice all bills prepared by them, and report progress
made upon the Codes.
4. The Continuation Committee, or a majority thereof,
shall have power to summon the Legislature to meet at any
time and place, on giving thirty days' notice thereof in
some newspaper published in the place where the last sitting of the Legislature was held, and to suspend any of
the Ministers, except the Minister of Justice, from his office,
30
,f 
FOR THE STATE OF COLORADO.
until the next meeting of the Legislature and ten days
thereafter.
5. The members of the Continuation Committee shall
have the same remuneration as members of the Legislature.
CHAP. VI.
REMOVAL OF DELEGATES TO THE LEGISLATURE OR TO A CONSTITUTIONAL
CONVENTION AND OF MEMBERS OF THE CONTINUATION COMMITTEE.
I. Dele
Constituti
ticle VIII
2. The
Committe
I.
2.
By resignation.
By acceptance of any office belonging to the of    ficial establishment of this or any other State
or of the United States, other than that of
Election Minister of this State.
3. By acceptance of any factitious honor or dignity,
or of any gift or reward from any foreign
government or authority.
Excepted from the foregoing is the acceptance of any title, honorary or otherwise, denoting merely intellectual position or acquirement.
mental derangement.
5. By the exercise of the removing function by the
Legislature, as per Article IX, Chap. II, Sec      tion 3, Clause I.
6. By failure to make within the times prescribed
the returns prescribed by this Constitution,
Article IX, Chap. IV, Sections 3 and 4, or by
making any incorrect return to the amounts,
or either of them, as provided in Section 5
of the same Chapter.
31
— 4
'O
4. By
5. By 
DRAFT OF A CONSTITUTION
7. By criminal delinquency pronounced by the sen        tence of a competent tribunal within the
State.
8. A delegate may be suspended by a vote of three        fifths of the votes of the Legislature.
CHAP. VII.
DELEGATES INAUGURAL DECLARATION.7
(7) No Inaugural Declaration is presented in this Draft.
The short forms of oaths of office prescribed in existing Constitutions are
useless.
Oaths are logical absurdities; a solemn declaration is not obnoxious to the
same objections which exist against oaths.
But for an inaugural declaration to be of any value it should recite the main
duties of the office upon which the officer-elect is about to enter.
The main function of such a declaration is to bring the moral sanction of
the community, i. e., Public Opinion, to bear with more force upon the
incumbent, by means of the prominence with which his several duties are brought before him and them, and by him engaged to be performed,
and the several temptations to which he will be subjected, reviewed and abjured.
In the present state of the public mind, the presentation of an inaugural
declaration framed to this end, would not be acceptable, it would be deemed
too long, —" impractical," and unfortunately there exists no adequate means
for the discussion of this and other important points. Should the convention
contain the right sort of men, the proper inaugural declaration will most probably be adopted. For an excellent model see "The Constitutional Code," by
Jeremy Bentham, Book II, Chap. VII, Vol. IX, pp. I98, 204 of the Bowring edition of his works.
CHAP. VIII.
SITTINGS OF THE LEGISLATURE.
I. The first Legislature elected under this Constitution
shall hold its first session on the first  in the month of
October, I876, at ten o'clock in the forenoon.    "
2. The subsequent sessions of the first Legislature and
the sessions of future Legislatures shall commence at nine
o'clock in the forenoon on the second Monday in January
in each year, unless specially convened as provided by this
Constitution.
3:2
-1t 
FOR THE STATE OF COLORADO.
3. A  majority of the members elected shall constitute a
quorum.
4. The Minister of Elections will report all cases of disputed elections to the President of the Legislature and to
the Minister of Justice.8
(8) Under the proxy system a contest with regard to the result of an election will be scarcely possible.
But in case one should happen, it should be referred to the judiciary to decide upon it like any other cause. For the Legislature to adjudicate thereon
is to mix up legislative with judicial functions, and, (so long as government
by party exists,) to make a party to the cause judge in it.
The maxim that every Legislature is the sole judge of its own elections, so
dear to precedent lawyers has been already abandoned in England whence
we derived it.
5. The Minister of Justice will cause the same to be en   quired into by the judge of such District as he shall deem
most convenient for the enquiry. All persons claiming to
be interested in the result shall, on application, be made
parties to the enquiry and, unless the judge shall deem
they have no interest therein, shall have a right to be heard
in person or by attorney and to produce such testimony
relavent to the issue as they may think fit.
6. By consent of all parties claiming the delegation the
cause may be heard and determined by a committee of the
Legislature presided over by the Election Minister.
7. The proceedings of the Legislature and of all Consti tutional Conventions shall be public; but the Legislature
or Convention may vote a secret session not to exceed
two hours in any one day.
7. Laws shall run as follows:
I. When the referendum has place "It is enactedby
"the Constitutive Authority of the State of
"Colorado on the recommendation of their
"Legislature as following:"
2 When the law merely repeals existing laws
"It is enacted by the people of Colorado rep
33
.1 
DRAFT OF A CONSTITUTION
"resented in their Legislature that
"be and the same is (or are) hereby repeal       ed "
3. When the law is passed under the provisions of
this Constitution on the recommendation of
a judge or of the Minister of Justice
"It is enacted by the people of Colorado
"represented in their Legislature on the re       "commendation of
"judge of
[or] on the recommendation of the Minister
of Justice "evidenced by said recommenda       "tion under the hand and seal of said
~~"    ~    presented to the President
"of the Legislature and recorded on the
"journal of the Legislature at pages
"thereof as follows":
ARTICLE X.
THE CHIEF EXECUTIVE.
CHAP. I.
HOW ELECTED AND REMOVED.'
(I) As in this draft, the Minister of Justice and not the Chief Executive is
the principal officer of the State, and his election is reserved to the Constitutive authority, it is probable that the election of the Chief Executive by the
Legislature may excite but faint opposition. It is the will of the Legislature
to which he is to give execution and it is they who are to prescribe his duties and provide the means for their execution; evidently then, the Legislature is the proper authority to elect and remove him.
I. The Chief Executive is elected by the Legislature for
the term of two years.
2. His office may be vacated
I. By removal as per Article VIII, Chap. III, Sec       tion 3, Division IV, ante p. I6.
2. By removal as per Art. IX, Chap. II, Sec. 3,
Clause 4, ante p. 27.
34
I 
FOR THE STATE OF COLORADO.
3. By any of the means numbered I, 2, 3, 4 or 7 of
Art. IX, Chap. VI, Sec. 2, of this constitu      tion, ante p. 3I.
4. By failure to make within the time prescribed
by this constitution the returns provided in
Chap. II of this article, Sec. IO, post 36.
5. By acceptance of any gift present or benefit con      trary to the provisions of Sec. 4, Chap. III,
of this article, post 37.
CHAP. II.
DUTIES AND POWERS.
The duties and powers of the Chief Executive are:
I. To see that the laws are executed.
2. To convene the Legislature in special session when he
thinks necessary or desirable so to do.
3. To communicate with the Legislature by message on
all matters necessary or proper for them to know or to con    fer upon.
4. To report to them at each session upon the finances
of the State; upon the expenditures necessary for the current and next succeeding years; upon the best mode of
making provision for those expenses; on the condition of
peace and order of the State; upon Federal relations; upon
the various industries of the State, and upon the condition
of education.
5. To attend the Legislature whenever required by them
so to do.
6. He  will appoint and remove, pursuant to the provisions of the Constitutional Code, all Ministers except the
Minister of Justice, the Legislation Minister, and the Election Minister.
7. He will appoint all officers in the various Executive
establishments of the State, and it is his duty to exercise
(4)
35
-I 
DRAFT OF A CONSTITUTION
constant supervision over the manner in which they perform their several duties, to take note of their conduct,
and, whenever necessary, to reprimand, suspend, or remove
them; provided, that after the promulgation of the Constitutional Code, by this Constitntion ordered to be prepared, the appointment, transfer, and removal of all such
officials, shall be in accordance with the rules to be established in and by said Code.2
8. The Chief Executive is Commander-in-Chief of the
armed force of the State.
9. He will appoint a deputy to act in his stead in case of
his absence, sickness, or other disability. He is responsible for the acts of his deputy, and may, at his pleasure, remove him and appoint another in his place.
IO. Within sixty days after his acceptance of the office he
will file with the Clerk of the Legislature a statement like
to that required from each delegate as per Art. IX, Chap.
IV, Sec. 3, and shall, once in every two months thereafter,
and once in every year, file accounts and statements like
to those respectively required from each delegate, as by
the same Sec. 3, Art. IX, Chap. IV, ante p. 28.
I I. Such statements, and two monthly accounts shall be
made and published within thirty days after the expiration
of each period of two months and one year respectively.
I2. Any neglect to make, and any error or omission in,
such statements and accounts, shall subject the Chief Executive to the same pains and penalties as provided in the
case of delegates, as per Art. IX, Chap. IV. Secs. 4, 5 and
6, ante pp. 29-30.
(2) This provision refers to what has been termed "civil service reform,"
and will apply equally to military officers. The objects of the rules to be provided by the Constitutional Code, are the maximization of efficiency and the
minimization of expense. Of course the politicians will resist them and will
get the aid of a certain class of minds by denouncing them as "impractical."
Their "impracticability" consisting in the fact that they would be a pretty severe check on plundering the people!
36
t 
FOR THE STATE OF COLORADO.
CHAP. III.
REMUNERATION.
I. The salary of the Chief Executive is          per year,
paid quarterly, in advance.
2. He shall be allowed expenses actually incurred on all
journeys made on the business of the State.
3. The Legislature may make extra allowances for expenses actually incurred by the Chief Executive on particular occasions in the business of the State.
4. No gift, present, or benefice of any kind may be received by the Chief Executive during the time that he holds
his office, other than provided by this Constitution or any
law passed pursuant thereto, except such as may come to
him by inheritance, or bequest, or from a natural or adopted
parent, grandparent, child, grandchild, brother or sister.
ARTICLE XI.
ELECTION MINISTER.
CHAP. I.
HOWN ELECTED AND REMOVED.
I. The Election Minister is elected by the Legislature
for the term of two years.
2. His office is vacated       I. By removal, as per Article IX, Chap. II, Sec. 3,
Clause 6, ante p. 27.
2. By any of the means numbered I, 3, 4, 5, 6 and
7, of Art. IX, Chap. VI, in the case of dele             gates, ante pp. 3 I-2. 
3. By acceptance of any office belonging to the of             ficial establishment of this or of any other
State, or of the United States, other than that
of delegate to the Legislature or Chief Exe             cutive of this State.
37
4 
DRAFT OF A CONSTITUTION
4. By accepting any gift, present or benefice, con      trary to the provisions of Chap. III of this
Article, post p. 39.
5. By failure to make, within the times prescribed,
the returns provided by Chap. II, Sec. 6 of
this Article.
CHAP. II.
DUTIES AND POWERS.
The duties and powers of the Election Minister are:
I. Subject to the directions of the Legislature, to give
execution to the Election Code.
2. To communicate thereon to the Legislature and to the
Chief Executive, as occasion may require.
3. To receive and canvass the returns of every election;
to give certificates as provided by this Constitution, and as
may be provided by law, under his hand and seal of office,
to all persons entitled to the same and to report all disputed cases to the Legislature and to the Minister of Justice.
4. To appoint and remove all officers of elections, temporary and permanent, subject to the provisions of the
Constitutional Code, when the same shall be promulgated,
and to exercise as regards election officers, the same duties,
powers and authority, as provided to be exercised by
the Chief Executive in the case of executive officers, as per
Art. X, Chap. II, Sec. 7, pp. 35-6.
5. He will appoint a deputy, as provided in the case of
the Chief Executive, Art. X, Chap. II, Sec. 9, p. 36.
6. He will make the like statements and returns as are
provided by Art. X, Chap. II. Sec. Io, of this Constitution,
in the case of the Chief Executive. 
7. Said statements and returns will be published as provided by Art. X, Chap. II, Sec. I I.
8. Neglect, error, or omission, will subject him to like
pains and penalties, as provided in the case of delegates, as
per Art. IX, Chap. IV, Secs.'4, 5, and 6, ante p. 29.
38 
FOR THE STATE OF COLORADO.
CHAP. III.
REMUNERATION.
I. The salary of the Election Minister is. -per year,
paid quarterly, in advance, unless the Chief Executive shall
hold the office, in which case the joint salary shall be that
of the Chief Executive added to one-third that of the Election Minister.
2. He shall be allowed expenses actually incurred on
journeys made on the business of the State.
3. The Legislature may make extra allowances for ex    penses actually incurred by the Election Minister on par ticular occasions.
4. No gift, present or benefice of any kind may be received by the Election Minister, other than provided by this
Constitution during the time that he holds the office, except such as may come to him by inheritance or bequest,
or from natural or adopted parent, grandparent, child, grandchild, brother or sister.
4
ARTICLE XII.
LEGISLATION MINISTER."
CHAP. 1.
HOW ELECTED AND REMOVED.
As in the case of Election Minister, as per Art. XI, Chap.
I, except that he may hold no other office in the official
establishment of the State than that of Minister of Justice.
(i) The necessity for such an officer as a Legislation Minister will be evident to all who know the slipshod manner in which laws now are generally
framed. Even when a bill has been carefully prepared, it is so cut up by
amendments as to be constantly self-contradictory and nonsensical, while laws
violating the Constitutions of the United States and of the States, are fre.
quently passed.
39 
DRAFT OF A CONSTITUTION
CHAP. II.
DUTIES AND POWERS.
The duties and powers of the Legislation Minister are:
I. To prepare all such bills and projects of law as may
be ordered by.the Legislature.
2. To review all bills and projects of law when passed
by the Legislature, and to communicate thereon to them
with a view to their reconsideration when necessary.
3. To report from time to time all bills prepared by him
as well as all bills passed by the Legislature to the Minister of Justice, with such remarks thereon as he may think
fit; to point out errors, inconsistencies or inaccuracies,
whenever they occur therein; also to point out inconsistencies between such bills and existing laws; to suggest remedies, and to take the instructions of the Minister of Justice thereon.
4. To appoint and remove officers in his department in
the same manner as provided by Art. X, Chap. II, Sec. 7,
in the case of the Chief Executive with regard to executive officers, ante pp. 35-6.
5. He will appoint a deputy as provided by Art. X, Chap.
II, Sec. 9, p. 36, in the case of the Chief Executive.
6. He will make the like statements and returns as are
As will be seen from Chap. II of this Article it will be the duty of the
Legislation Minister to obviate these mischiefs.
The similarity of some of the talent required for an efficient Minister of
Justice with that required for the performance of the duties of Legislation
Minister, suggests the propriety of allowing the two offices to be held by one
person in a State so little populous as Colorado. But the Legislation Minister needs obviously to be so dependant upon the Legislature that the latter
may readily remove him with or without cause, and there seems no reason
why a simple majority vote of the Legislature should not be sufficient for that
purpose.
Similar observations apply to the Election Minister, except that as his office
is executive and rarely, and only by consent of parties, judicial, it may be
appropriately given to the Chief Executive and not to the Minister of Justice.
40
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FOR THE STATE OF COLORADO.
provided by Art. X, Chap. II, Sec. Io, in the case of the
Chief Executive, ante p. 36.
7. Such statements and returns will be published as provided by Art. X, Chap. II, Sec. I I, ante p. 36.
8. Neglect, error, or omission, will subject him to the
like pains and penalties as provided in the case of delegates
as per Art. IX, Chap, IV, Secs. 4, 5, and 6, ante p. 29.
CHAP. III.
REMUNERATION.
I. The salary of the Legislation Minister is            per
year, paid quarterly, in advance, unless the Minister of
Justice shall hold the office, in which case the joint salary
shall be that of the Minister of Justice added to one-third
that of the Legislation Minister.
2. He shall be allowed expenses as provided in the case
of the Election Minister, as per Art. X, Chap. III, Secs. 2
and 3, ante p. 37.
4+   ~ 3. Sec. 4 of Art. XI., Chap. III., applies also to the Legis       lation Minister, ante p. 38.
ARTICLE XIII.
OFFICIALS GENERALLY.
I. No officer of the official establishment may retain in
his hands any public moneys longer than for the period of
one week from the day on which he shall have received the
same.'
(I) It has been so much the custom for public officers, of late years, to
make a profit of the public moneys, that this article, which merely glives a
new sanction to the old law, will strike many persons as novel. Its importance and justice none will fail to recognize.
The fact that no honest man-a trustee of public funds, would ever appropriate to himself the profit he might make on their use, coupled with the too
notorious fact that in this county nearly all public officials do so, shows the
extent to which the demoralizing effects of the present system have extended.
41
0 
DRAFT OF A CONSTITUTION
2. He shall deposit all such moneys in such depositary
as shall be directed by law, and in the absence of such direction, it shall be his duty to apply to the officer to whom
by the Constitutional Code, shall be entrusted the care of
the State Finances for instructions, and shall deposit the
same wherever such officer may direct.
3. If he shall doubt the expediency of the instructions
given him by such officer, he shall report the same to the
Chief Executive and to the Minister of Justice, together
with his reasons for, and suggestions concerning, the same.
4. Any officer who shall hold in his hands any public
moneys, contrary to the provisions of this Article, shall be
charged compound interest thereon, after the rate of three
per cent. per month, with quarterly rests.. He shall also be
subject to the pains and penalties provided by the penal
code.
5. Any officer of the official establishment who shall be
concerned or interested in, or shall make any profit out of
any contract which, in the course of his official duty, he
shall have occasion to enter into, recommend, advise, supervise, or influence, shall forfeit to the State three times the
total amount of such contract, or of the money paid, or
agreed to be paid, thereunder, shall be forever incapable of
holding any office in the State, or of being a member of
the Constitutive Authority, and shall be subject to the pains
and penalties provided by the penal code.2
6. Whenever the same person shall hold two or more
offices in the official establishment of the State, his remu
(2) This provision may put some check on the deplorable peculation now
common among officials. The compelling them to give returns of their property, income and expenditure, are fitly supplemented by these provisions, and
will, it is believed, do much to raise the tone of official morality.
The author is acquainted with instances of peculation and corruption on
the part of County Commissioners and of others, past and present, which he
may use, if necessary, to enforce the provisions-of this Chapter against the
" politicians."
42
f 
FOR THE STATE OF COLORADO.
neration (except in the case of the Minister of Justice or
Chief Executive holding the offices of Legislation Minister
or Election Minister, respectively) shall be as follows:
The salary or pay of the highest paid office added
to one-half the salary or pay established by
law for the next highest, added to one-third
the salary or pay of the next, and one-fourth
of the salary or pay of the fourth.3
7. No' person may hold more than four offices in the
official establishment at any one time.
8. All salaries provided by this Constitution may be
changed by law passed with the Referendum.
ARTICLE XIV.
THE JUDICIARY.
CHAP. I.
The Judicial powers of the State are vested in a Minister
of Justice, a Supreme Court          Appellate Judges and
Primary Judges.
CHAP. II.
THE MINISTER OF JUSTICE.
SECTION I.
How Elected and Removed.
I. The Minister of Justice is elected by the Constitutive
Authority, as provided by Art. VIII, Chap. III, Secs. 2 and
I I, ante pp. I2 and I4.
2. He is removed in manner provided by Art. VIII, Chap.
III, Sec. 3, Div. 2, ante p. I6.
(3) When the population of the State shall be five or six millions in place
of ioo,OOO, it will be proper to prohibit the holding of more thai one office
by any person at one and the same time.
43
I
A
7 
DRAFT OF A CONSTITUTION
3. He may be suspended as provided by Art. IX, Chap.
II, Sec. 3, Clause 2, ante p. 27.
4. His office is vacated by       I. Resignation.
2. Acceptance of any other office belonging to the
official establishment of this or of any other
State, other than that of Legislation.Minister
of this State.
3. Acceptance of any factitious honor or dignity
from any foreign government other than titles
denoting intellectual position or acquirement.
4. Mental derangement.
5. Criminal delinquency pronounced by the sentence
of a competent tribunal.
6. Failure to make within the times prescribed the
returns provided by Chap. II, Sec. 2, Clause
15, of this Article, post p.46.
7. Acceptance of any gift, present or benefice (other
than may come to him by inheritance or be             quest) contrary to the provisions of Chap. II,
Sec. 3, of this Article, post p. 47.
SECTION II.
Duties and Powers.
The duties and powers of the Minister of Justice are:
I. To watch over the administration of Justice in all the
Courts of the State.
2. To attend to and take such action as may seem expedient upon any and every complaint which may come to
him from or against any officer belonging to the_judicial
establishment of the State.
3. To attend to and take such action as may seem expedient upon any and every complaint which may come to
him from or against any officer belonging to any branch
other than the judicial, of the official establishment of the
44
-i
I 
FOR THE STATE OF COLORADO.
State, after referring the same to, and conferring thereon,
with the official superior of such officer.
4. To direct the institution of such proceedings as may
seem to him right, against or in defence of any officer belonging to the official establishment of the State.
5. To direct the defense of proceedings instituted against
the State, the treasury of the State, any branch of the government of the State, or any body politic or political corporation within the State, as he may think fit.
6. To receive and examine the reports of all Primary and
Appellate judges.
7. To summon the Supreme Court to meet whenever he
shall deem it necessary, and to summon such of the Primary judges as he may think fit to form part of such Court.
8. To watch over the rights declared in Article V of this
Constitution, and to cause steps to be taken to prevent or
punish their violation.
9. To communicate to the Legislature by message on all
matters necessary or desirable for them to know or to confer with him upon.
Io. To report to the Legislature at each session upon
the Legislative measures he may think necessary or desirable.
I I. In conjunction with the Legislation Minister to settle
the drafts of bills, and review them when passed by the
Legislature, and to communicate with the Legislature
thereon.
I2. To review the codes which shall be prepared by the
Legislation Minister under the direction of the Legislature,
and to communicate with the Legislature thereon. -
I 3. To attend the Legislature whenever required by them
so to do. -
I4. To appoint all judges-Primary and Appellate, and
their deputies, and all other officers of the judicial estab
45
I
4
t 
DRAFT OF A CONSTITUTION
lishment, except Constables. To transfer such officers from
time to time from one district or place to another; to direct
enquiry into the conduct, or the prosecution of, any of such
officials.
I15. He will make the like. returns, and will be subject to
the like penalties for default in making such returns of his
property and income, as are provided in the case of the
Chief Executive, by Art. X, Chap. II, Secs. Io, and I2, ante
p. 36.
I6. He will appoint a deputy to act in his stead in case
of his absence, sickness, or inability. He is responsible for
the acts and conduct of such deputy, and may, at his pleasure, remove him and appoint another in his place.
I7. He will visit every Appellate and Primary judicatory
once, at least, in every year.
I8: He may, in consideration of any service rendered to
the State, and after public enquiry in open Court into such
service, remit the whole or any part of the sentence of any
person convicted of any crime.,
I9. He may direct a rehearing of the case of any person
convicted of crime before the same as, or before any judge
other than him by whom the case was tried, whenever, from
the production of new evidence, or from any other cause,
he may think justice has not been done.2
20. He shall reportto the Legislature all judicial recommendations for the alteration of the law received by him
from any judge, and shall give his advice thereon by message to the Legislature.
(I) No further pardoning power than is here given should be rested in the
breast of the highest official.
In all States in which a pardoning power has been vested in the governor
it has proved a constant source of corruption or what is almost as pernicious
-a constant source of supposed corruption.
(2) Whenever an innocent man is convicted, the State owes him redress.
At present his only remedy is "a pardon," adding insult to injury. Under
this draft a rehearing is provided, so that justice may be done. Justice, not
pardon, is what is due to an innocent man.
46
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FOR THE STATE OF COLORADO.
SECTION III.
REMUNERATION.
I. The salary of the Minister of Justice is           per
year, paid quarterly, in advance.
2. The provisions of Chap. III, of Art. X, Secs. 2, 3 and
4, apply also to the Minister of Justice, ante p. 37.
3. The Minister of Justice may hold conjointly with his
own the office of Legislation Minister and no other.
CHAP. III.
PRIMARY COURTS.
I. In each of the Districts mentioned in Art. III, Sec. 4,
of this Constitution, a Primary Judge and a Judge-deputy,
a government advocate and an eleemosynary advocate, and
their several deputies, will be appointed by the Minister of
Justice.
2. The Primary Judges have jurisdiction in all cases and
causes of what nature, kind, or amount, soever. Every
cause must be commenced in the Primary court.
3. The Primary court shall be always open.
4. Either or any party to any cause may require a jury.
In the absence of such requirement the Judge will proceed
to hear and determine every cause.
5, He may summon experts to sit as assessors, but shall
not be bound by their opinions. The judgment to be rendered is to be rendered by him, and will be his judgment.
6. The Judge-deputy will act as Registrar of theCourt,
and as Judge in the absence of the Primary Judge. The
Primary Judge may depute him to go to any place to receive testimony or prepare a report on real evidence, or the
evidence of things, there to be found. Any party to a cause
may decline to have it adjudicated by the Judge-deputy.
47
I
4 
DRAFT OF A CONSTITUTION
CHAP. IV.
APPELLATE COURTS.
I. There are...I Appellate Districts in the State.
2. The First Appellate District comprises, and its court
is the Appellate Court from, the following Primary Districts and Courts:     *    *    *       *      *    *
3. The Second Appellate District comprises, and its
court is the Appellate Court from the following Primary
Districts and Courts-      *    *    *       *     *
4. The Third Appellate District comprises and its court
is the Appellate Court from the following Primary Districts
and Courts-    *    *    *    *    *    *    *
5. The Fourth Appellate District
6. The number of, and the Primary and Appellate Districts may be changed by law from time to time.
7. An Appellate Judge and Judge-deputy, a government
advocate, and an eleemosynary advocate, and their respective deputies, will be appointed in each Appellate District
by the Minister of Justice.
8. From every final judgment of a Primary Judge an appeal lies to the Appellate Court in whose District the Primary Court is contained.
9. The Appellate Courts will be always open.
IO. The Judge-Appellate-deputy will act as Registrar of
the Court, and as Judge in the absence of the Appellate
Judge. Any party to a cause may, however, refuse to have
it adjudicated by the Judge-deputy. The deputy will attend to such judicial business as may be deputed-to him
by the Appellate Judge, and will report all his proceedings
therein to such Appellate Judge, who will confirm, reverse
or vary the same, as he may think right.
(I) Four or five, as discussion may determine to be desirable.
48
t 
FOR THE STATE OF COLORADO.
I I. After the period of three years, no person will be appointed to the office of a Primary Judge who shall not
have completed two full service years of not less than three
hundred days each, of actual service in court, or on judicial
business without the court, as deputy to the Minister of
Justice or Legislation Minister, or as a deputy Primary or
Appellate Judge; nor to the office of Government Advocate or Eleemosynary Advocate, unless he shall have
served, in like manner and for the like period, as deputy to
one of the said Ministers, or to a government or eleemos3nary Advocate.
i2. After the like period of three years no person will be
appointed an Appellate Judge who has not filled the office
of Primary Judge.
I3. Whenever it shall appear to any judge that the law,
as it exists, would, if put in force in a case before him,
work an injustice, he shall be at liberty to make a decree
suspending judgment until the will of the Legislature is
expressed or ascertained. From any such decree by a
Primary Judge, either party, or the government or eleemosynary Advocate, though not before engaged in the
case, may enter an appeal on behalf of the people or of
any party to the cause authorizing the same, to the proper
Appellate Judge.
If no such appeal be taken, or if taken, if the decree
suspensory be confirmed, or if such decree be made in the
first instance on the hearing of an appeal by an Appellate
Judge, the judge making such decree shall make a report
thereof to the Minister of Justice and another to the Clerk
of the Legislature, with a recommendation of such legislation as he may think fit.
If the Legislature shall at its then present, or, if not then
in session, at its next succeeding session, pass a law in ac —
cordance with the recommendation of such judge, or in
accordance with the advice of the Minister of Justice, the
judge shall make a decree in accordance with such new
49 
DRAFT OF A CONSTITUTION
law. If no action shall be taken by the Legislature in the
session then present, or if not then in session, at its session
next succeeding the date of the suspensory decree, the
judge shall give judgment in accordance with the law;
Provided, That no new law shall render criminal an act
which was not a violation of the penal code at the time it
was committed.
I4. Justice shall be administered gratuitously. No fees
shall be asked or received from any litigant; but as part of
his judgment the judge may assess against either party a
sum to be paid by him by way of penalty for having improperly or unnecessarily instituted or defended a cause, or
improperly or unnecessarily denied or required his opponent to prove a fact within, or which ought to have been
within the knowledge of such party. All sums so assessed
shall, when collected, form part of the "Judicial fund," and
shall be paid over to the proper financial officer of the
State by the officer who may collect the same.
I 5. Every person convicted of a violation of the Penal
code shall be sentenced to pay such sum as to the judge
shall seem a proper proportion of the expenses of the judicial establishment, appropriate to the case.
16. In all cases of prosecution for a violation of the Penal
code, the party believed, or alleged to be aggrieved, shall,
unless he object thereto, be made a civil party against the
accused, and may recover a civil judgment in the same
proceeding.
I7. In cases of homicide, the widow or widower, child
or children, and any or every person dependent upon the
deceased may be made a civil party complainant, and may
recover damages against the person or persons guilty of the
homicide.
I8. In all cases of violations of the Penal code, reparation to the party injured shall be the main object of all
judicial proceedings.
50
0
-t 
t 
FOR THE STATE OF COLORADO.
CHAP. V.
JUDICIAL OFFICERS-HOW REMOVED.
I. The offices of Primary Judge and deputy, of Appellate Judge and deputy, of government and eleemosynary
Advocates, and of their deputies, may be vacated:
I. By resignation.
'2. By acceptance of any other office belonging to
the official establishment of this or of any
other State.
3. By any of the means numbered 3, 4, or 5, of Art.
XIV, Chap. II, Sec. I, Clause 4, of this Con             stitution.
4. By failure to make to the Minister of Justice
statements and returns of property and in             come like to those, and within the like
periods as are provided to be made to the
Clerk of the Legislature by delegates, as per
Art. IX, Chap. 4, Secs. 3, 4, 5, ante pp. 28-9.
5. By failure to make to the Minister of Justice the
returns provided to be made by Chap. VII of
this Article.
6. By acceptance by any judge or deputyjudge of
any gift, present or benefice (other than may
come to him by inheritance, bequest, or by
gift from natural or adopted parent, grand             parent, child, grandchild, brother or sister)
beyond his salary and allowances, as provided
by Chap. VI of this Article.
7. By removal for cause, after enquiry had by the
Minister of Justice.
8. By transfer or promotion to some other judicial
office. 
CHAP. VI,
REMUNERATION OF JUDICIAL OFFICERS.
I. The salary of each Primary Judge is ten dollars per
diem, payable monthly, for each day's actual attendance in
(5)                                                -   
}
.51
4 
DRAFT OF A CONSTITUTION
court, or on the business of his office outside of the court
house.
2. The deputy has no salary for the first two complete
service years of not less than three hundred days each of
actual service in court, or on judicial business without the
court-house.  Thereafter his salary will be       per diem
for each day's actual attendance in court, or on judicial
business without the court-house.
3. The salary of the Primary Government Advocate is
per diem, payable monthly, for each day's actual
attendance on the judicial business of the government.
4. His deputy receives no salary unless the people's advocate elect to pay him.
5. The salary of the Eleemosynary Advocate is
for each day's actual attendance in court. It is his duty to
attend the court each day and to watch every case in the
interests of justice; to act as the advocate of every person
who desires his assistance, and is unable to hire assistance
elsewhere.
Instead of receiving the per diem above provided, he
may elect to be remunerated by the person desiring his
assistance, with the consent and by contract with such person and with the approval of the Judge.
6. The deputy of the Eleemosynary Advocate receives
no salary unless the Eleemosynary Advocate elect to pay
him.
7. The salary of each Appellate Judge is $4,00ooo per an'num, payable monthly, in advance. It is subject to a deduction of $20 for each day's delay in the hearing and
determining of any cause on appeal, occasioned-by the
absence of the Appellate Judge from the Appellate courthouse, unless occasioned by sickness or by attendance
upon judicial business without the court-house, or unless
the appeal so delayed was taken during the absence of the
Appellate Judge during any of the periods not exceeding
52.
i 
FOR THE STATE OF COLORADO.
six weeks in the aggregate in any one year that said Appellate Judge may be absent, by leave of the Minister of
Justice, for a vacation, and no opportunity shall have since
happened for its being heard and decided.
8. The Appellate-Judge-deputy has no salary for the
first two complete service years of not less than three hundred days each of actual service in court, or on judicial
business without the court-house. Thereafter he will receive a salary of        per diem for each day's actual attendance in court or on judicial business without the courthouse.
9. Every judge, judge-deputy, government and eleemosynary advocate, and their respective deputies, may be
allowed by the Minister of Justice such expenses as are
mentioned in the case of the Election Minister, Art. XI,
Chap. III, Sec. 2, ante p. 41.
Io. No judge or judge-deputy may receive any gift, present, or benefice of any kind (other than may come to him
by inheritanae or bequest, or from a natural or adopted
parent, grandparent, child, grandchild, brother or sister)
during the time that he holds his office.
CHAP. VII.
JUDGES' JUDICIAL REPORTS.
I. Once in every month each judge shall transmit to the
Minister of Justice a true abstract of all the business done
in his court, shewing the nature of each litigation, and of
the evidence therein, its condition at the date of making
the return the disposition made of it, and if appealed, the
result of the appeal when known. Also, the attendance
given in court or on judicial business without the courthouse, of such judge and judge-deputy and of the attendance in court, and of attendance alleged to have been given
on government judicial business without the court-house
of each government and eleemosynary advocate and of their
respective deputies.
53
4 
54     DRAFT OF A CONSTITUTION FOR THE STATE OF COLORADO.
2. The report above provided to be made shall be drawn
up by the judge-deputy from the records kept by him, and
shall be subscribed both by the judge and by the judgedeputy, each of whom shall be responsible for its accuracy.
CHAP. VIII.
THE SUPREME COURT.
I. The Supreme Court shall consist of the Minister of
Justice who will be its President, of the Appellate Judges,
and of such of the Primary Judges as the Minister of Justice may from time to time summon to sit as Justices
thereof.
2. Four of its members will constitute a court.
3. It will take original cognizance of all enquiries into
the conduct of any official belonging to the official establishment of the State, that may be referred to it by the
Minister of Justice, by the Chief Executive, or by the Legislature, and will give such judgment of acquittal, reprimand, suspension or removal, with such disabilities as may
be provided by law, as to said court may seem just.
4. It will convene whenever summoned by the Minister
of Justice or by the Legislature.
5. It will consider all questions submitted to it by the
Minister of Justice or by any Judge, but it has no power to
give judgment in any cause except as provided in Sec. 3 of
this Chapter.
6. The judgments of all Appellate and Primary Judges
will be conformed to the opinions of the Supreme Court
on questions submitted to it, in all then pending an. future
causes.
i
,i
' "t,II ;,'I, "I, 
Page 3, Advertisement, strike out name of E. J. Mallet, Jr.; insert names
of James F. WVi]bur and Geo. H. Church.
"   4, line 13, for "8th" read 6th.
"    6, line I4, for "consequence" read consequences.
6, last line but one, for "charter" read charters.
'  IS, line 4, for "appellat" read appellate.
"    9, line II, for " 13 an(l 15" read I4 and I6.
22, last line but two, for " extend " read extent.
33, last line but two, for "following" read follows.
34, last line, for "clause 4" read clauses 4 and 7.
v.
Ia
i 
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BOOKSELLERS o STATIO ENBS,
A FULL LINE
Rocky Mounlltain Scenery Constantly in Stock.
MOULDINGS AND FANCY GOODS.
414 Larimer Street, - ------       DENVER, COL.
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