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A CONSTITUTED GOVERNMENT. 421
but in those of the first class, or of the national character, the more widely national the possession of sovereignty, or, the larger the actual and relative number of the persons holding political rights, and the greater the equality of those rights, the stronger is the natural necessity for a Government, i. e., a politically organized instrument of government, distinct from the national possession of original sovereign power, though dependent upon it for its existence. In such states the word constitution has a more extended meaning than it can have in the public law of states of the other class; since it includes a law in the strict sense, under which the Government is constituted ; and by determining the connection of that Government with the ultimate sovereignty of the nation, the constitution, in this case, gives to the political liberty of the individual still more of the nature of a legal right. Since such a state is republican, by the existence of political freedom, as the right of individual members of the nation, under law properly so called, the Government in this case is republican, whatever its form, when the political right of the individual subject continues to be exercised, in manifesting the supreme national will, independently of the legislative power of such constituted Government, which can only be in the ordinary creation and continuance of the actual agents or instruments of government.l When civil freedom is made by the sovereign power independent of the mechanical Government, it acquires a constitutional character ; for it can only be infringed by a change in the constitution of the Government, or the public law under which that Government exists; and in such a constitution there is a part which is truly private law, as well as public law.
§ 358. Since all rights of natural persons in a civil state are to be considered, in law, as finally dependent on the will of the sovereign power, it is of the first importance, in a legal view of
1 Mr. Calhoun, in his Disquisition on Government, 1 Works, p. 8, considers that the Government is in all instances necessarily identical with the original possessor of national or sovereign power, though he there speaks of the possibility of a constitution controlling such a Government; and, on page 12, of the right of suffrage as a power above that of the Government. In his Essay on the Constitution of the U. S., he speaks of the sovereign power as being in "the people."
422 PUBLIC LAW FOB LIBERTY.
freedom or its opposites in any state or nation, to exhibit the rights in which that freedom or the obligations in which those opposites consist, in their connection with or dependence on the public law of the state. Those rights which constitute political liberty (though private in attaching to private persons—the subjects of private law), are properly described as effects of public law; but in exhibiting the foundation (duration, extent, legal necessity) of those rights which constitute civil liberty under private law, not only must the relations established by that law be shown, but also the dependence of that law upon the public law of the constitution of the state and of its Government.
In those states wherein the supreme power or sovereignty is of a private nature, as before defined, there is little or no room for any consideration of this kind; since all laws, affecting the civil or social rights of the subject of the state, proceed from a political authority entirely distinct from and superior in its existence to any of his legal rights. In states wherein the sovereignty has any thing of the national character, where all rights of private persons may have to a greater or less degree a recognized co-existence with the sovereign power, the law of those rights has a more complicated nature; being both public and private law. The legal nature of those rights which constitute civil liberty necessarily becomes still more complicated under a state, of this class, wherein the sovereign powers, inherent in a state or nation, are divided or are invested in severalty.
§ 359. The present Constitution of the United States being recognized to proceed directly from the legitimate and supreme source of power, its provisions become the highest rule of law in determining the relations of all persons and things which can be affected by them.
The Constitution has a twofold aspect:
First,—which has been already considered—it is a declaration of the location of sovereign power in the people of the United States as one, and in the people of the several States as separate polities; equivalent, legally, to the evidence of a pre
PRIVATE LAW IN THE CONSTITUTION. 423
existing fact, to be recognized judicially as the basis of public and private law.
Second,—it is direct legislation, by the exercise of the sovereign powers held by the people of the United States as a political unity, and is either public or private law.
The public law is that which constitutes the Government of the United States,—creating thereby a source of private law; and those provisions which create relations in which the several States or the Government of the United States are, in their political capacity, the subjects of rights or obligations.
The private law of the Constitution is contained in those provisions which create relations in which private persons are the subjects of rights or obligations anterior to and independent of the legislation and powers of the national Government, and render those relations independent of the powers held by the several States.1 Therefore, although the subject of examination,—the condition of persons in respect to freedom and its opposites, is a department of private relations, and belongs strictly to private municipal law, as before defined," the necessary subjection of that law to the power of the state renders a preliminary reference to the public law of the Constitution necessary, to determine the sources from which laws affecting those relations may originate, and the reciprocal limitations or restrictions on those sources of law, in respect to their extent or jurisdiction, as an essential element of the condition of persons subject to the law proceeding from them.
§ 360. Whatever may be the true doctrine of the essential political existence of the people of the United States, it must be taken as the first principle of public law (the law in the
1 Mr. Calhoun, 1 Works, p. 191, &c.,—distinguishing between "the constitutionmaking and the law-making powers"—appears to have held that the Constitution of the U. S. has nothing ofthe character or operation of private law, or that it does not maintain, of its own force, any rights or obligations of private persons. Mr. Benton, in his Examination of the Dred Scott case, p. 14, &c.,—holding that the Constitution does not "act of itself anywhere, and that it required an act of Congress to put it into operation before it had effect anywhere,"—appears to hold the same doctrine. Mr. Benton cites Webster and Clay as being of the same opinion, and then shows that Mr. Calhoun held the contrary, in maintaining that, by the operation of the Constitution alone, slavery exists in all the territoriet of the U. S.
* Ante, § 25.
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primary sense), proceeding from the rightful possessors of sovereignty that by the written Constitution they have created a Government, which, in the powers given it, is to be considered rightfully authoritative within the territorial limits of the dominion of that people. From an examination of the Constitution, in relation to this its effect, it is evident that the Government thus constituted or created is not the possessor of the sovereignty or supreme powers, which it may exercise, in consequence of an absolute political transfer of those powers from the people. This is shown by the fact that this Government is established in three distinctly organized parts, each holding one of the necessary and natural means or functions by which supreme powers are exercised: but neither, in itself alone, constituting supreme or sovereign power; which, to be such, must be uncontrollable not only in its ultimate effect, but also in the mode of its action. The legislative, judicial and executive functions, though each indispensable to the independent exercise of political power, and commonly designated as sovereign powers, are not such, properly speaking; but are the modes in which supreme and sovereign power is manifested. But since these, combined in their action, produce the effects of independent and absolute supremacy, the powers vested in the Government established by the Constitution, are, in their exercise and in the view of public law, supreme and of the nature of sovereign national power wherever existing; and they therefore act directly, and without reference to any other power, on all persons and things within their determined jurisdiction or territorial dominion.1
§ 361. These powers are not, in legal consideration at least, the less supreme or sovereign from being separated, in their exercise, from the other general powers of a national sovereignty, vested in the several states of the Union ;a though in practice
1 1 Calhoun's W., p. 163,—that the Government acts as the Government of one nation, whatever theory may be adopted of the location of sovereign power.
* The Constitution of the U. S. is part of the whole law prevailing in any one State. And the Government of the U. S. and that of the State are equals and co-ordinates therein—each representing sovereign power. (1 Calhoun's W., p. 167.) But this is perfectly consistent with a national possession of those powers which have been
DIVISION OF SOVEREIGN POWERS. 425
it may sometimes be otherwise. The Constitution does not, in making this division between the national Government and the several States, define the extent or full sum of all the powers belonging of right to a sovereign state or nation; or all the power which such a state may rightfully exercise in restraining the action of private persons. And it is not here material to inquire whether the powers vested in the Government of the United States are the only powers belonging to the united people of the States as a preexisting political unit; or, in other words, whether the entire residue of sovereign powers, not granted to the Government, is, independently of the Constitution, ultimately vested in the people of all as one, or in the people of the States severally : this depending upon political theories of the antecedent political existence of the States, as before mentioned. It is sufficient in this respect for juridical purposes, that the tenth Article of the Amendments declares that "the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people." It has already been shown that since "the people " which in the Constitution appears as the delegating or constituting power had, as a matter of fact, existed in the political capacity of the people of distinct States, and, though united into one nationality, had always acted under forms recognizing such an existence, the powers which are thus declared to be reserved "to the people " must be held by the people in their several capacity, that is, by the several political persons or bodies known each as the people of a State of the United States, and these reserved powers can therefore, under the present Constitution of sovereignty, be exercised only by each singly in and for its own territory. This is the necessary inference from that recognition of the people which must precede the recognition of the Constitution.1
intrusted to the Government of the U. S.; and it is not necessary to deny that the latter is the instrument of the integral American people, in order to maintain that the powers of the State government are equally sovereign in their nature, as is said by Mr. Calhoun, on p. 168; or to hold, with his speech in the Senate, 9th April, 1834, that each State has two Constitutions, i. e., that the State Constitution and the Constitution of the U. S., are Constitutions for the inhabitants by being both co-ordinately derived from the State, or the people of the State. 1 Ante, § 843.