CHAPTER XI.

OF THE INVESTITURE IN THE PEOPLE OF THE SEVERAL STATES AND OF THE UNITED STATES, OF THAT SOVEREIGN POWER WHICH IS THE BASIS OF CONDITIONS OF FREEDOM OR OF BONDAGE.

§ 330. By the Revolution and the war which was terminated by the preliminary treaty of peace of November 30, 1783, the English colonies, a portion of whose juridical history has been herein considered, became politically separated from the British empire, and a new sovereignty,' known to the rest of the world as the United States of North America, became established over their territory. To the legislative or juridical action of this sovereignty or sovereignties, the subsequent existence of any rights or obligations incident to freedom or liberty and its opposites, regarded as the conditions or status of private persons within their territorial dominion, must be referred.

§ 331. Freedom or liberty, taken even in the widest or most general sense that of the mere negation of restraint, must vary in significancy according to the nature of the subject of which it is predicated, or the capacities of that subject for acting or being acted upon.

When freedom or liberty is attributed to a being capable of choice and action, and is not taken as the simple negation of restraint, but as a positive condition of moral privilege in reference to some rule of action, it varies in its significancy, not only ac

'This term, primarily signifying supreme or sovereign power in the abstract, or the possession of that kind of power (Webster's Dict.), is often used also, as here, for the concrete,-the power and the possessor of it.

BASIS OF PERSONAL CONDITIONS.

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ording to the object or purpose of the rule, but also as that ile may vary in its absoluteness or necessity, and in its relaons to space and time.

When the terms freedom and liberty or their opposites are sed to express the condition of a natural person, who is a memer of some civil society or state, and that condition is considered part from all ethical views of its naturalness or inherent corespondence with the nature of man, and only as consisting of a ariety of rights or obligations in certain legal relations deternined by the positive law, based on the authority of that civil ociety or state,' it cannot be described without at the same ime defining the law, which originated these relations, in its absoluteness or necessity, and in its temporal and territorial

extent.

When describing freedom and its opposites as the effect of the laws of the United States, it is therefore proper to consider those laws in their necessity, authority and jurisdiction; as well as in their object, or their direct effect upon personal condition by the creation of legal relations.

These attributes of the nature of law, which are therefore, of necessity, limitations of the existence of freedom and its opposites, are incidents of that relation of superior and inferior, which is an essential element or constituent of a law in the primary sense.

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§ 332. Since each national sovereignty is the ultimate or supreme authority for the law of that national domain in which it is supreme, (in the sense given to the word law in the previous chapters,) it is not to be considered as being itself dependent on that law for its existence, or its possession of that supreme authority; which possession can be said to be fixed and determined only by those general principles which are, in fact, a law only in the secondary sense, and constitute that "natural or necessary law of nations" which has been referred to in the first chapter. This existence, or this possession of sovereign power must be assumed as rightful in every applica

Ante, §§ 4-43

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tion of rules of action which are called its municipal or national law.

The question of the seat or investiture of sovereign power can therefore be a historical question only, or a question of fact, as that of its nature and extent is ethical. These are essentially political, and not legal questions. Or, although they may be called topics of public law, it is of law in a sense antecedent to legislation or jurisdiction, which is the manifestation of a sovereignty, of law in the secondary sense-the statement of a mode of action.

§ 333. But although the possession of sovereign power is not determined by the law, it is the first necessity of judicial action, in recognizing any precepts as law, to acknowledge their source as being the sovereign or "supreme power of the state;" since the law in asserting its authority claims its origin in that power. In this view the political principle of the seat of sovereignty becomes also the fundamental doctrine of municipal (national) law.

The possession of sovereignty being a fact, and not an effect of law, whatever written memorials or declarations of the rightfulness of any national sovereignty may exist, they can only proceed from itself, and they can only be taken as historical evidences of its existence; not as law controlling that possession of sovereign power which they assert. And the authors of those declarations must always be supposed to have the right to substitute others of different tenor and equal juridical authority. There can therefore be no written constitution of government so authoritative in its nature or expression as to determine the rightful sovereignty-the rightful holders of that rightful supreme power; since before that constitution has effect as law it must be recognized to be the act of sovereign powerpower above all law in the ordinary sense."

§ 334. While therefore those written instruments which are

Luther v. Borden, 7 Howard U. S. Rep. pp. 39, 51-58.

De Maistre, on the Generative Principle of Political Constitutions, Transl., Boston, 1847; 18mo, p. 41. "The more we examine the influence of human agency in the formation of political constitutions, the greater will be our conviction that it enters there only in a manner infinitely subordinate, or as a simple instrument; and I do

FORCE OF CONSTITUTIONS.

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known as the Constitutions of the several States and of the United States, and legislative or juridical power derived from them are juristically assumed to be the foundation of all legal rights and obligations existing within the domain occupied or held by those States, that assumption involves a previous political recognition of some existing sovereignty or possession of supreme power within that dominion, and the conception of the absoluteness, necessity, and temporal and territorial extent of the positive law contained in those Constitutions, or derived from them, will depend upon the political theory of the investiture of that sovereign power from which they proceed. At the same

not believe there remains the least doubt of the incontestable truth of the following propositions:

"1. That the fundamental principles of political constitution exist before all written law.

"2. That constitutional law is, and can only be, the development or sanction of an unwritten pre-existing right.

"3. That which is most essential, most intrinsically constitutional and truly fundamental is never written, and could not be without endangering the state.

"4. That the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles."

See also the preface to the same essay, p. 11.

The ideas of De Maistre are correct when the question is what determines the existence of sovereignty, or the investiture of sovereign power? No written constitution can exist a priori, or have an a priori authority. There must have been an existing sovereignty to originate such constitution. The fallacy in his writings lies in confounding law, in the primary sense, with a mode of action; and law, in the ordinary sense or legislation, with political ethics. A similar fallacy is common with authors of the extreme opposite school. De Maistre says: Because it is impossible to establish a supreme government without acknowledging the existence of an anterior sovereign, therefore all actual sovereignties are the creation of the Deity, and arise independently of man's agency which may be admitted. But he then asserts that sovereignty can never be in the nation or people; because, he asserts, the Deity has never actually sanctioned popular sovereignty, but, always, monarchical sovereignty; professing to learn this from history: that is, he asserts this as a law in the secondary sense. But here he assumes that he, or some one, can determine the will of the Deity and interpret facts by it: for he asserts that no actual possession of power by the people has ever been a legitimate possession. But he who could interpret facts by an assumed law of the Deity would be the only earthly sovereign. De Maistre describes the legitimacy of monarchy as power above law, and "legitimate usurpation," that is, the continued fact proves its own lawfulness. But the same criterion has legitimated popular sovereignty in America; unless his own standard of duration also is to be received. "On nous cite l'Amerique; je ne connais rien de si impatientant que les louanges décernés à cet enfant au maillot; laisser le grandir." By his argument there can be no legitimate sovereignty in the United States, nor, by consequence, any law: unless the act of George III. in the treaty of peace, 1783, may be, on his principles, a legitimate grant of power.

In the same manner Tucker, Paine and others would prove that no sovereign power can be held except by a compact of the individual members of society; and that all juridical power previously exercised throughout the world, antecedent to the American Revolution, was illegitimate; or that no law existed before that time. But, in fact, their argument would equally prove that no law, even now, exists in the United States.

time the existence of that sovereignty is part of the customary or unwritten jurisprudence of the land, whatever may have been its comparative duration; that jurisprudence being entirely historical, as opposed to analytical; or, nothing else than the mere history of the acquisition and continued possession of sovereign power.

§ 335. The events which may be regarded as the continuous act by which these Constitutions were produced, and the words and expressions which made part of those acts and of their record, must determine the existence of that sovereignty which has given these Constitutions their force. But since the political significance of all events, not resulting from positive law, must always be liable to variety of appreciation, in view of different doctrines of political expediency, different political theories may be derived from those events, leading to different juristical views of the legal force and extent of the provisions of these Constitutions. For this reason every historical narrative of these events must be liable to exception in view of some one of those theories, or, to change the form of expression, the narration will be also the exposition of some of those theories.

§ 336. The nature of civil government and of positive law is such that in every state there must be some persons who actually hold, use or enjoy the power or right of the state or of civil society to create coercive rules of action for individual members of the state, and some whose legal liberty of action is determined by those rules.'

1Austin's Prov. Jurisp., p. 255. "An independent political society is divisible into two portions; namely, the portion of its members which is sovereign or supreme, and the portion of its members which is merely subject. The sovereignty can hardly reside in all the members of society, for it can hardly happen that some of the members shall not be naturally incompetent to exercise sovereign powers," &c.

Papers, &c., Juridical Soc., Vol. I. Part I., London, 1855, p. 30. On the Concep tion of Sovereignty, &c., by A. S. Maine, LL.D. "First then, the human superior, who is to be sovereign, must be determinute. He need not be a single person or monarch. There can be no grosser mistake than this, though it is constantly perpetrated by jurists whose place of birth leads them to associate "sovereignty" with "despotism," and who are perpetually committing themselves to propositions which, if construed rigorously, would either deny the existence of governments like our own and that of the United States, or at all events brand them with the stigma of illegitimacy. Nor again can "sovereignty" be said to reside in the entire community-an error the exact opposite of the misapprehension just alluded to, and one to which French writers on public law seem especially liable. Their meaning may perhaps be that no body of individuals,