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private persons under a civil state, may be called social or civil liberty; and the law which creates this liberty may be more properly called private than public law, since it affects persons in private relations, or establishes relations between persons having a private capacity or condition.1
§ 353. Although that which is here denominated political liberty must, necessarily, in every state be vested in or enjoyed by some determinate persons, there may be great differences of fact and law between various states in the distribution of that right or power of action. In some states it may be found to be possessed by a proportionately large number of those who also, by the private law, enjoy civil liberties. But, the larger the proportionate number of those individuals who possess this right or power, the less probable does it become that its possession by any one of those individuals should be independent of any external will, or should be a right above law; and the more probable will it be that the right or power, here called political liberty, will acquire a legal character, like that of the right called civil liberty, by being dependent on the will of a person, or number of persons, distinct from the individual holder of the right. Where a large number of persons are equal, or nearly equal, in their possession of this right, that equality can hardly be otherwise manifested than by accepting the will of the whole body, or of certain parts or proportions of the whole number of individuals, as the expression of the supreme or sovereign will. In that case the possession of this right by any one individual is founded on a will superior to and distinct from his own; and
1 Rogron, Code Civil Explique.—Lib. I., tit i. c. i. "Les droits de 1'homme en society sont politique? on civils. Les droits politiques sont les droits dont les citoyena jouissent par rapport an gouvernement, et qui leur permettent de participier a la puissance publique; savoir, de voter dans les assemblies electorates, d'etre elus et admissibles a tons les emplois, a toutes les dignites, etc. Les droits civils, sont les droits on certains advantages dont les citovens jouissent entre eux et qui leur sont garantis par la loi civile. Les principaux sont le droit de puissance paternelle, ou maritale, tons les droits de famille, ceux d'etre nomine tuteur, de succeder, de disposer de ses biens et d'en recevoir par donation entre vifs et par testament. Les droits civils se trouvent particulierement enumeres dans l'article 25."
Lord John Ilussel, in his Essay on the History of the English Government, distinguishes civil, personal, and political liberty. This distinction might be proper where the existence of a class of persons, not enjoying personal liberty, is recognized by private law.
INVESTITURE OF SOVEREIGNTY. 417
therefore, as to him, or regarded as the right of a natural person, it is the result of a law in the strict sense; although the possession of the power by the collective mass of which he forms a part is anterior to all law in the strict sense. In this instance political liberty is a legal right of a private person; though existing by public law.
In other states, that right of action, which is here called political liberty, may be so enjoyed by a few or by one, that those few or that one must be regarded as individually identified with the state, or the supreme source of law, independently of any other person or persons; and political liberty, not being exercised by any who are individually subject to the state, or to those who possess its power, must be said to have no legal existence; that is, though the right must exist somewhere, it is not created by law in the primary sense. The possession of the right is said to be ascertained by public law, but by law only in the sense of the statement of a fact or condition.1
§ 354. There is then a distinction in the mode of existence of political states which is more material, in determining the nature of freedom in those states, than any derived from those differences between forms of government which distinguish them as republican, monarchical, aristocratic, democratic states. This distinction is founded on a difference in the location of the ultimate sovereign power; and by it all states can be distinguished into two classes, viz.:
First: Those wherein the ultimate sovereign power is by fact and law vested in the nation at large, or in individuals of that nation, who are at the same time politically and legally, as individuals, the subjects of that power.
Second: Those wherein that power is by fact and law vested in a single individual, or in a limited number of persons, distinct in political and legal relations from the body of the nation, and not individually subject to any other law, in the strict sense, than that proceeding from themselves."
1 In jurisprudence, the location of sovereign power is a question of fact. In an ethical view, the fact is according to the moral judgment of the observer. Compare the method of reasoning in Lieber's Political Ethics, B. 2, ch. 6.
• Lieber's Pol. Eth., voL 1, p. 404, note citing Arist. Pol. iii. 7, 1 Ethics, viii. 12, vol. II. p.64, A. B.Casaubon. M. De Tracy's commentary on Montesquieu's Spirit of Laws; Phila. 1811, page 12: "Confining myself, then, wholly to the fundamental principles of civil society, disregarding the difference of forms, neither censuring nor approving any, I will divide all governments into two classes, one of these I will denominate national, in which social rights are common ta all (nationaux ou de droit commun); the other special, establishing or recognizing particular or unequal rights,
418 SOVEREIGNTY AND CONSTITUTIONS. § 355. The name republic or commonwealth, which has been applied without much discrimination to many very various forms of a state, can with propriety be given only to states of the first class above described. In those of the second class, the state power, or the sovereignty, has a private character, the nature of a private right; though above all rights conferred by the law in its ordinary sense.l If by the constitution of a state is meant merely the legal recognition of the existing investiture of sovereignty, a state of either class may be said to have a constitution; but in those of the second it will be only equivalent to the simple fact of the possession of sovereign power. In the first class of states only, it acquires the character of a law; since each individual, participating in the possession of supreme power, or enjoying this political liberty, holds that political right by the expressed will of an integral sovereign personality, to which he is subject. In such states, therefore, there is a true law, coexistent with the fact of the investment of sover
"In whatever manner governments may be organized, I shall place in the first class all those which recognize the principle, that all rights and power originate in, reside in, and belong to, the entire body of the people or nation; and that none exists but what is derived from and exercised by the nation; those, in short, which explicitly and without reserve maintain the maxim expressed in the parliament of Paris, in the month of October, 1788, by one of its members, namely, . . . Magistrates, as magistrates, have only duties to perform (n'ont que des devoirs); citizens alone have rights (les citoyens Beuls ont les droits); understanding by the term magistrate, any person whatever who is invested with a public function.
* • * • (p. 13) "On the other hand, I call all those special governments, whatever may be their forms, where any other sources of power or rights, than the general rule of the nation, are admitted as legitimate; such as divine authority, conquest, birth in a particular place or tribe, mutual articles of agreement, a social compact, manifest or tacit, where the parties enter into stipulations like powers foreign to each other," &c. See this distinction adopted by Lanjuinais' Constitutions, torn. |1, pp. 18,14.
See also Sir William Temple's Essay on Government, p. 2, and a somewhat similar distinction by Grotius, B. ct P., L. i., 3, 12. L. ii. 6, 3, between regna patrimonialia and usufructualia; rejected by Heineccius, J. Nat. et Gen., L. 2, c. 7, § 147.
1 P. A. Jay, in Report N. Y. Const. Conven. of 1821, p. 200.
Acts of Vienna Congress; June, 1820, art. 57. "As the German Confederacy, with the exception of the free cities, is composed of sovereign princes, so must in consequence of this fundamental idea the collected power of the state remain united in the
LIBERTY AND CONSTITUTIONS. 419
eignty, which is the cause of the law.1 The public law, which is mainly a law in the secondary sense,—the statement of a fact, or of a mode of action, and the private law, which is mainly a law in the primary sense,—a rule of action, here become, to a certain degree, identified. Only in this class of states can it be said that the constitution of the state establishes political freedom, or political liberty, as the right of an individual subject or citizen ; and in such States, this liberty, though a private right, regarded as attaching to that individual, exists by public, rather than by private law.
§ 356. Freedom of the individual in social relations, or civil liberty, according to the definition above given, which is freedom by private law, may evidently vary greatly in its nature or quality of privilege; since it may include a greater or less variety of rights of action in those relations. This freedom must, to some degree, exist in every state; since rights of persons arise in every relation established by law. When the idea of political liberty, as above defined, is excluded from the definition of civil liberty, it is evident that any degree of civil liberty which can practically exist in one of the above described classes of states, may also exist in the other. But in neither class of states, more than in the other, does any particular degree of this freedom necessarily exist; because in each it depends directly upon the will of a sovereignty personally distinct from the individual subject. But in the first class of states,—while it is equally dependent on the sovereignty of the nation,—the more general the extent and security of political freedom, or the more widely national * the constitutional sovereignty, the more probable is it that a high degree of civil liberty will be found to accompany political; or to be possessed by those at least who by
ruler of the state, and the sovereign by the constitution can be bound to co-operate with the chambers, only in the practice of definite rights."
Art 58. The sovereign princes united in the confederacy shall be hindered or limited, in their federal obligations, by no provincial constitution.
North Brit Kev., Aug. 1855, p. 229, Am. Kepr—"Our position, that in every mediaeval state the governing body had a locu* standi of its own which it was constitutionally entitled to defend against the public will," &<■
1 Lex facit quod ipse sit Rex.—Bracton, L. 1, fol. 5; L. 3, fol. 107.
'National not being here used in distinction from federal, as in the preceding chapter, but in distinction from private or special, as those terms are employed by M. de Tracy in the note on the last page.
420 LIBERTY AND CONSTITUTIONS.
the public law possess political liberty; since in this class of states, the public law gives to the subjects of private law, or to a large proportion of the subjects of private law, the right to participate, in a greater or less degree, in making that law.1 Civil and political liberty, as rights of persons, according to the definitions here given, are therefore intimately connected, though not necessarily coexistent. And it is only in states of the first class that civil or social liberty can have a constitutional foundation; that is, an existence connected with the public law.1
§ 357. In a state of the widest national basis, or most popular constitution of sovereignty, wherein political rights are most widely and equally distributed, the liberty of the individual subject or citizen is ever in fact dependent by public law on the will of the majority of those who equally share those rights; though his equality in the possession of political power is a bulwark to each one against a diminution of his civil liberty by that will.3 In every state the more intimate the connection between the possessor of sovereignty and the mechanical Government, or the instruments of the ordinary government of the state, the greater must be the facility for a legal invasion of the liberty of the individual subject, as previously recognized by law; or the easier the process by which the law, public or private, which defines his rights, may be changed. In states of the second class, this connection is absolute identity;'
1 Penn's Preface to his frame of government for Pennsylvania, 1682. Marshall's Life of Washington, 1 voL, note iv. "Thirdly,—I know what is said by the several admirers of monarchy, aristocracy, and democracy, which are the rule of one, a few, and many, and are the three common ideas of government when men discourse on the subject. But I choose to solve the controversy with this small distinction, and it belongs to all three, any government is free to the people under it (whatever be the frame) where the laws rule and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion."
* Lanjuinais' Constitutions, t. 1, p. 97, "S'il n'y a des lois constitutionelles, ou de moins politique?, les droits prives, pour les quelles tout existe, n'ont point de garantie."—This is his translation of Bacon's—sub tutela juris publici latet jus privatum.
3M. Benj. Constant; Coll. des Ouvrages Politiques; Paris, 1818, Tom. 1, p. 174, n. "M. de Montesquieu, comme la plupart des ecrivains politiques, me semble avoir confondu deux choses, la liberte et la garantie. Les droits individuels, e'est la liberie': les droits sociaux, e'est la garantie. L'axiome de la souveraineto du peuple a etc consider*; comme un principle de liberte; e'est un principle de garantie. II est destine a empechcr un individu de s'emparer de l'autorite qui n'appartient qu'a l'association entiere; mais il ne decide rien sur la nature et les limites de cetto autorite."
4 The form of government becomes merely what has of late been denominated bureaucracy. See Licber, Civil Lib. and Self-Gov., vol. I., p. 182, and Polit. Eth. voL I., p. 397.