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126 SOURCE OF LAWS.
they had themselves shared by their representatives; and, because unrepresented in parliament, they denied its power to legislate for them in local matters.1
§ 131. But the power of sovereignty to alter all private law must have existed somewhere, so far as such a power can exist; and, as to the colonies, it was to be found, according to either the tory or the liberal theory—in the parliament of England, the king and the colonial legislature; according to the nature of the subject, either severally, or all united. The limits between these co-existing sources of law were never systematically defined, and naturally received a variety of construction. But, whatever may have been the true legal limits of the power of parliament in reference to the colonies, since their international and commercial policy still continued, of necessity, to be connected with that of England, the statutes of parliament affecting such relations must have been indisputably operative during the colonial period.8
The legislative declarations of the colonial governments, in the nature of bills of rights, even if not intended only as bulwarks against arbitrary executive power, seem to be founded on the theory that a parliament, or the constituted legislature, is the depositary of the sum of sovereign power, and the source and ultimate arbiter of all law; * and this, whether the colonial legislature was considered as formed by royal charter, or by the voluntary consent of the freemen of the colony.4
It has sometimes been asserted by English jurists that the power of the British parliament is controlled, to some degree, by common law; which control might be exercised by the judges, in declaring its acts void; and that under the term common law
'• 1 Banc. 442. Duponceau on Jurisdiction, Pref. ix. Declaration of the Congress of the nine Colonies, 1765 :—Story's Comm., § 190. 1 Pitkin's Hist. 235, 286, 340, 344.
* Smith's Wealth of Nations, B. iv. c. 7. 1 Chalmers's Opinions, p. 201. Chitty on Prerogative, c. iii. Stokes: Const of the British Col. Declaration of Rights of the Continental Congress, 1774, Resol. 4. Story's Comm. § 194, note. Virginia Report of 1799, (alien and sedition laws,) Randolph's Ed. 1850, p. 212. Curtis's Hist, of the Constitution, L, p. 20, 21, and generally on these points, Story's Comm. B. i., c. 16, 17.
* This is the doctrine of 1 Chalmers's Opinions, p. 1.
* Unless in Connecticut and Rhode Island, during the early periods of their political existence, the body of the electors or "freemen," may be taken to have been the actual government and possessor of political power. Compare Bancroft's Hist voL I., for the political history of these colonies.
LEGISLATIVE POWEB. 127
natural right or reason is included, as a rule of distinct existence, capable of being separately recognized by the tribunal. Thus Sir Henry Finch, in a Treatise on the law of England, pp. 74-76, declares, that positive statutes contrary to common law, reason and nature are void; and in Bonham's case, 8 Coke, 118, it is said, "and it appears in our books, that in many cases common law doth control acts of parliament; for when an act is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such acts to be void;" citing some of the older cases, wherein common law rules of the most constant application have been used to limit the apparent effect of Acts of parliament. And by Hobart, C. J. it is said that "an act of Parliament made against natural equity, as to make a man judge in his own cause, is void in itself, for jura naturae sunt immutabilia, and they are leges legum." (Day v. Savage, Hobart's R. 87.) Holt, C. J. in The city of London v. Wood, 12 Modern R. 688, says that parliament can do no wrong; though it may do several things that look pretty odd; that it may discharge a man from his allegiance, but cannot make one that lives under a government both judge and party; that it cannot make adultery lawful, though it may annul the marriage of A with B and make her the wife of C." But Coke, in 4 Institutes, 36, says of the power of parliament, that "it is transcendent and absolute, and that it cannot be confined, either for causes or persons, within any bounds." And Blackstone, in 1 Comm. p. 161, says that "it can do every thing that is not naturally impossible," that "it hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or criminal; this being the place where that absolute despotic power, which in all governments must reside somewhere, is intrusted by the constitution of these kingdoms." 1
With regard to laws impossible to be executed they must be of necessity, legally as well as naturally, void, since no judicial
1 And compare Bacon's Abridg Statutes, A. Dwarris on Statutes, pp. 642-647. The passages in Bracton, Fleta and the Mirrour which speak of the law of nature as immutable by the legislative power of the state, are only repetitions of the language of Justinian's Institutes, and must receive the same exposition. See the next chapter.
128 LEGISLATIVE POWER.
or executive power can give them an effect contrary to their own nature. Blackstone says, Comm. vol. 1, p. 91: "Acts of parliament that are impossible to be performed are of no validity; and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are, with regard to those collateral consequences, void. I lay down the rule with these restrictions; though I know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, I know no power in the ordinary forms of the constitution that is vested with authority to control it: and the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable, the judges are at liberty to reject it: for that were to set the judicial power above that of the legislative, which would be subversive of all government." Mr. Christian's note to this passage concludes as follows :—" but where the signification of a statute is manifest, no authority less than that of parliament can restrain its operation." The conclusion of Sir Matthew Hale respecting the power of parliament is equal to a definition of the supreme legislative and judicial power of every state or nation:—"this being the highest and greatest court over which none other can have jurisdiction, if by any means a misgovernment should any way fall upon it, the subjects of this kingdom are left without all manner of remedy." 1 From these various authorities it may be inferred to be the theory of the public municipal (national) law of the British Empire,' that the entire sovereignty of the nation is vested, or as may be said, has primordial existence (by right above law), in the legislating body or bodies—king, lords or commons, or the three united; including under this designation all colonial or local legislative bodies. All that sovereign power
1 The statute Confirmatio Chartarnm, 25 Edw. 1. c. 1. declares that the great charter shall be held for common law; and the statute of Westminster, 42 Edw. 3, c. 1: "It is asserted and accorded that the great charter and the charter of the forest be holden and kept in all points, and if any statute be made to the contrary, that shall be holden for none." See Co. Lit. Proeme to 2d. Inst. An Act of parliament is thus the authority for the restriction of parliament by common law.
'The question of the limitation of the legislative function of the English government, under the British constitution, is a question of public municipal (national) law, which ought to he distinguished from the politico-ethical question, noted in the first chapter, respecting the authority of a law of nature; being distinct questions: the one of law, positive law,—the other of ethics or political science.
LAW AND LIBERTY. 129
in any nation may do, this organized body or incorporated government may do.
§ 132. But whatever may have been the extent of the power residing in the British parliament alone, or in it together with the provincial governments, to determine the laws which should prevail territorially in the American colonies, the common law of England was always regarded in each of the colonies, for many years anterior to the revolution, as a law of national as well as local extent, determining the rights of the colonists of English birth and their descendants, as fully as those of nativeborn subjects of the same race residing in England: and no permanent alteration of common law liberties, as to them, occurred during the period of the union with the mother country.1
§ 133. As has been remarked in the first chapter (§ 42), the term liberty, when used to express an actual condition of privilege enjoyed by a person living in political or civil society, can only be described as the effect of laws resting on the sovereign power of some state or separate political society,—-positive law, in the comprehensive sense in which it had been herein before used: while, in the conception of that effect, as constituing a condition either of liberty or its opposite, not only the purpose and object of the law must be considered, but also its character as a relation between superior and inferior, or in other words, its source, authority and extent.
Regarding law only as the expressed will of a sovereign, or of a possessor of that sovereign and supreme authority which must in every state have intrinsically the same nature, and liberty only as the result of law,—every condition of privilege, or degree of liberty which may in different states be attributed to private persons may be said to have the same foundation. Where a distinction is observed in the nature of municipal law, as
1 American Tracts, London, 1766, Dummer's Defence of the New England charters, p. 49. And compare the cases cited in note to § 126. The paper hy Bentham, 1803, entitled, "A plea for the constitution,'' and relating to the illegality of certain local laws in New South Wales, will be found interesting in connection with the subject of this chapter. So also Lang's Freedom and Independence for the Golden Lands of Australia, London, 1852.
130 LIBERTY CIVIL AND POLITICAL.
being either public or private, the freedom of action which is enjoyed by private persons in a state or political society may be called the result of private law. But since there must be in all states a public law, or law of political constitution, by which the source, duration and extent of the private law is determined,1 the effect of that public law is always an essential element of the liberty enjoyed by private persons in the ordinary relations of civil society, those which are ordinarily considered distinct from the public or political relations of the state.
§ 134. Whatever condition of a natural person, who is a member of a civil state, may be called liberty, must be juridically known as composed of individual and relative rights; since it consists in relations existing under law: and those rights may be called liberties—though with constant reference to the existence of law. In all states wherein a public law, or law of political constitution (in any proper sense of the word law), can be said to exist, a distinction may be made between that liberty of the individual members of political society which exists in civil or social relations, (which may be termed liberty by private law,) and liberty of action in connection with the public and political life of the state, (liberty by public law.) The first might also be properly distinguished as social or civil liberty; the second, political liberty." But since, wherever the last can be said to exist, the first, or liberty by private law, acquires a distinctive part of its nature in the guarantees afforded to it by the public law,—in such states the definition of the term civil liberty includes the basis of private rights in the public law; since the nature and existence of private law is itself the topic of a law in the strict sense of the word.
§ 135. When in English and American jurisprudence civil liberty, in general, or any particular right or liberty is spoken of as the result of the law of England, and attributed to any private persons subject to the sovereignty of the British empire, the political foundation of the law by which the rights of private persons are defined is always indirectly referred to, and the
1 Bacon, De Aug. Scien. L. 8, o. 3, 10. Aphorism 3. "At Jus Privatum sub tutela Juris Publici latet."
• Comp. 1 Bla. Comm., p. 126, n. by Christian; Chipman, on Gov., p. 59. Whewell: EL Mor. & PoL, § 535, distinguishes between tocial freedom and political freedom.