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SOVEREIGNTY IN THE TERRITORIES. 411 of the United States. Whatever doubt may have originally existed as to the power of the Government created by the Constitution to make these acquisitions for the United States, their present title or sovereignty in those territories must be taken to be legal and perfect.
It may be assumed that under that division of the sum of sovereign power which is made in the Constitution, every several State or the people of any several State are precluded from that external exercise of political power by which, under public international law, territory is acquired or political dominion geographically extended. The power then, which must still exist, necessarily belongs to the people of the United States or the integral nation. Hence, on the acquisition of territory by the national Government, it was the dominion of the integral people of the United States, not that of the several States, which was extended; having the same effect as in the territory ceded by the original States. This dominion was, of necessity, by the exercise of the sum of sovereign powers ; that is, both the powers vested in the national Government by the Constitution, which have like extent throughout the entire domain of the United States, and the powers which, in a State, are exercised by its several people.
§ 349. In the territory thus held by the United States, whether ceded by the older States or otherwise acquired, this absolute or undivided sovereignty has existed until by the will of its possessors—the people of the United States, (indicated by their only known instrument, the national Government,) a political people has been recognized in certain districts of that territory, and that people has. as a corporate political body, consented to assume and have been declared by Congress to hold, in and for a particular district, the sovereignty held by the people of a several State under the Constitution; that is, a certain share of sovereign power to be exercised severally within the limits of such district, thereafter to be known as a State, and the residue of sovereign powers to be exercised in union with the other States. By which act the political people of these districts has become added to the constituting people of the
412 CREATION OF NEW STATES.
United States, that is, to those from whom the Constitution of the United States derives its vitality. Hence the admission of new States, formed within the territory of the United States, may, from the moment of such admission, be regarded as the autonomic development of sovereignty, and not an act taking place under law in the ordinary sense.1
§ 350. Within the entire national domain of the United States sovereign power is exercised either together by the political people of a State, being one of the United States, and the integral people of the United States, or else by the people of the United States, solely ; and no law can be recognized within that domain which does not derive its authority from one of these sources.
The "people" of the United States and of the several States, though claiming to hold their collective powers by a right antecedent to all positive law, being a body existing through custom and prescription, are always (in the legal point of 'view) distinct from any collection of persons, however large, even though of citizens' and electors, when acting in any other
1 This formation and admission of a State of the United States is the action of two parties, two political persons, exercising certain powers as sovereign. It is an autonomic contract or agreement, above positive law, (law in the ordinary sense,) not under it.
The will of one, the new State, is that of those who, in a corporate capacity or as one political person, would become the political people of the new State at the moment of its existence. A method for ascertaining their corporate will may have been indicated under some law for the exercise of the electoral franchise by the individual constituents. Its requisitions may have been complied with. But (if it is admitted that the will of this people and the will of the majority of the individual constituents are identical) the result (a vote) may or may not accord with the will of this corporate people. For this people, or a majority of them, may have declined to indicate their will under the law.
To all persons who do not represent these two parties in their autonomic action, the result under the law is conclusive. Such persons are bound to find the will of the corporate people in the resulting vote, and to recognize no other indication of that will.
But the other sovereign party—the United States or those who represent them in this autonomic action—Congress, (and the less so if they made the law,) are not thus bound under law. They may regard better evidence of the will of the party they are compacting with; if any there be. For here they are autonomic.
That evidence might be found in criminal acts; in acts of violence, wrong and outrage. But if it should be more indicative of the will of the other party, (the people of the future State,) than the vote under law, Congress may with perfect consistency disregard the latter.
* Dred Scott's case, 19 Howard's R., 404. Opinion of the Court, "The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'Sotereign people' and every citizen is one of this people, and a constituent member of this sovereignty." The term citizen may unquestionably be properly thus employed, because this is one of the senses in which it is vernacularly used. But it is equally true that it may be properly employed where it cannot have this signification.
THE CONSTITUTING PEOPLE. 413
mode than those known to these Constitutions and the laws and usages which have been established or confirmed under them, even though those persons should be a majority of the electors or the whole mass of the electors.1 The present powers of this "people" are vested by political changes, established by autonomic force, and legitimated only by their peaceful>and uninterrupted continuance." The rights of this "people" are not, in any legal sense, dependent on the theory of natural society or the consent of individuals as natural persons. All within the actual geographical limits occupied or held by them and the nation which they claim to represent, are each, however, free in legal condition, absolutely subject to their authority ; without regard to any assent or acquiescence, express or implied.3
In the same opinion it was, however, held that the individuals constituting this "sovereign people ''—" the political body," &c., are not known by their possession of the elective franchise. For after concluding that a negro is not a citizen of the United States, it is said, p. 422, "Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote, * a * yet they are citizens."
The various meanings in which the term citizen may be used, and in which, it is herein held, it is used in the Constitution of the U. S., will be considered in some of the succeeding chapters.
1 As matter of law, strictly defined, this is a necessary conclusion ; and, hence, that a Constitution cannot legally be changed, except in such manner as may have been in the same Constitution provided. But, the possession of sovereignty being a fact, and not the result of law, it is evident that a new Constitution may, at any time, become operative, independently of the provisions of the former. However, the establishment of such a Constitution would, strictly speaking, be a revolutionary act—an act above all law.
* Luther v. Borden, 7 Howard, U. S. Rep. Elisha Williams in report of N. Y. Const. Convention of 1821, p. 248. Webster's Works, VI., 217; Calhoun's Essay, 1 Works, pp. 169, 188.
• Story's Comm., §§ 327—330.
Memoirs of F. Perthes, vol. IL, p. 285. (Liberalism and the Political Constitutions of Germany, 1822-1825.) "The constitutions desired were rather to be the offspring of that political understanding which is always and everywhere the same; accordingly they' were not to presuppose the existence of any established authority, and were to be for all nations essentially alike. To liberalism of this sort, Perthes was a decided opponent. He wrote: 'Men must be governed, and they wish it too; but as they can be governed only by men, every government must depend on some human accessory, be it a seneschal or a scullion, a major's wig or a corporal's staff. It is useless to fret and kick against the pricks; and though you were to set up among us a political idol from France or America, it would only be a new Baal, that would burst when his time came.' Again, 'you consider the exclusive majesty of the law, a phrase of noble and profound import Yes, indeed, it sounds fine in the ears of our age, but profound
414 MAJESTAS, LEGIBUS SOLUTA.
§ 351. The power held by the "people" of the several and United States is of the highest class of power known to human laws. It is the same power as that which formerly resided, as to the same territory, in the colonial Governments and the parliament and king of Great Britain, and is absolute as the supreme national power in any community. It is power superior to all law; unless it be those principles which have been called the law of nature, natural justice, natural reason, &c, and even practically considered, superior to those principles; since it is amenable to no tribunal for disregarding them, except as they may be vindicated in public international law. It is of the same nature as that of the English parliament, when it is said of it that it can do any thing, not absolutely impossible, and superior to it, if that of parliament be controlled by common law; not being constitutional power, but power above the constitution.
If any rights can be said to be vested in individual members of the nation independently of political sovereignty, whether they be the same as those held by private persons before the Revolution or not, they rest as legal rights, within the jurisdiction of this "people," on their acknowledgment of them as their highest guarantee or sanction.
"None on earth, neither people nor monarch, neither all, many, few, or one, have a right to do what they like. None, not even unanimous millions, have a right to do what is unjust."1 Natural reason, right, or equity is unalterable. But if it be violated here, by this sovereign will, there is no power known to the law, that can resist its decree, nor any judicial tribunal that can overrule its commands.11
it is not: it is nothing in fact, but empty sound, for majesty of the law without authority of the lawgiver is mere nonsense. Majesty must have a body, monarchical or republican, as you please, but a body; and law presupposes an authority not made, but previously existing: which is precisely what our whimsical age is ever denying in one form or another.'"
1 Lieber, Pol. Eth., B. II., § 188.
'Harvey and others r. Decker and Hopkins, 18 Walker's Mississippi R. 36, an I Wheeler's Law of Slavery, 343. Otis' Rights of the CoU, 1 Am. Tracts, p. 12. J. Q. Adams in an oration July 4th, 1831, (1 Story's Comm., p. 145, n.,) denied that "an absolute, uncontrollable, irresistible and despotic power " is essential to sovereignty, or that the doctrine was admissible in the jurisprudence of the United States. The question is nearly the same with that of a natural law in general jurisprudence. See ante, §§ 3-8, and of the power of parliament over common law, ante, § 131.
CONDITIONS OF FREEDOM AND BONDAGE CONSIDERED WITH REFERENCE TO THE PUBLIC LAW OF THE UNITED STATES.
§ 352. It was observed in the previous chapter that in every state or nation there must be some natural persons who are to be considered as actually holding, using or enjoying the power or right of the state, or of society, to create rules of action for the individual members of the state or nation, and some whose liberty of action is to be regarded as being determined by those rules.1 This right of action in the first class of persons, or the fact of their holding this power, is said to be determined by the public law of the state; but that which is here called law has rather the character of a law in the secondary sense, or of a mode of action, than of a law in the primary sense, or that of a rule; since the fact is the judicially recognized origin of all rules of action having coercive force upon private individuals. This right of action in this class of persons in a state, though it may in a certain sense be called a right or liberty, is then, strictly speaking, above law; since it is presupposed in the judicial recognition of every coercive rule, and referred to as being the source of its authority. The action which is contemplated by this so-called public law, being political or connected with the very existence of the state, the right of action may be called political liberty. That liberty of action which is determined by the law proceeding from those who possess this political liberty, since it exists in social relations, or the ordinary relations of
* Ante, § 386.