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426 LIBERTY BY LAW OF GOVERNMENT.
§ 362. There are, however, certain powers belonging to sovereign nationality, necessarily existing somewhere, which, if not granted to the Government nor prohibited to the States, can hardly be said to exist at all in the several States ; or, if existing, they are, by division, very different in effect from the same power used by the people nationally, or as one: a difference arising from physical conditions of territory and situation. For example, the power to acquire foreign territory and to exercise sovereignty over it. For if this power were not invested in the national Government, and if the States were not under the Constitution prevented from exercising it, yet their intrinsic power of acquisition under international law is very different in the hands of the nation acting as one, and in the same people acting as distinct states for that end. The same may be said of that right possessed by every national sovereignty, in some undefined measure, to change the law of nations, when applied in international law regarded as a rule of action for states, but as law in the imperfect sense.1
§ 363. The expression of the will of the supreme legislative authority, not that will itself, constitutes the law. From the very nature of sovereign national power, the law, or this expression, is always in a certain sense arbitrary, that is, dependent on that will. But in order that freedom, as the condition of a private person, subject to that will, may be said to have coexistence with law, it is necessary that that law should be a rule of action already to some degree fixed, and not identified with mere arbitrary will.3 In order that freedom and its opposites may be legal conditions, there must be a previous publication of the rules of action or the laws which can affect freedom of action. So far as liberty consists in a high degree of guarantee against arbitrary rule, in the sense of ruling without law, it is secured to all under the Constitution of the United States, in reference to the powers intrusted to the National Government, and, to a less extent, in reference also to the powers of the sev
1 See ante, § 38.
* "La liberté, c'est le droit de faire tout ce que les lois permettent."—Montesquieu. "Liberiat eat potestas faciendi id quod jure liceat."—Cicero.
EXTENT OF JUDICIAL FUNCTION. 427 eral States, by declaring the seat or investiture of all sovereign political power, the establishment of a judiciary, and its independence of the other functions of government.1
§ 364. From the two-fold nature of the Constitution, in being both the evidence of a fact and also the promulgation of a rule of action, the question of the relative extent of the judicial power of the United States is one which is, perhaps, essentially indeterminable.3 A law in the secondary sense—a state of things exists independently of any superior cause or author, and is maintained in its own existence. The possession of sovereign underived power is proved by itself. The fact of that possession does not result from a rule established by a superior will, but is proved in the actual possession or exercise of that power. But to the vitality of a law which is a rule of action a judicial function is essential. The judiciary, where the investiture of power to promulgate coercive rules of action for private individuals is determined by a law in the primary sense, becomes the test of the extent of that power.
The Government of the United States derives all its powers from a law, properly so called, contained in the written Constitution of the United States. The exercise of any powers by that Government is, therefore, a proper subject of judicial power proceeding from the authors of that law.
On the other hand the States, or the people of the several States, though not each severally possessed of all the powers of sovereignty, yet do, according to the view hereinbefore expressed,3 hold their powers by right above law, or by a law of their existence, which is law in the secondary sense only, and their possession of those powers is only proved by the Constitution of the United States, as evidence, not derived from it as from a law in the proper sense. But since the Constitution of
1 So if the several States create law by their sovereign powers, the judiciary of each State (supposing a republican State Government to exist, having the judicial function of the State separately invested) decides on the validity of laws proceeding from the legislative exercise of the state power.
* That is, its extent as compared with other judicial power, that proceeding from the several States. The extent of the judicial power of the U. S. is described in the Constitution, Art. III. sec. 2.
'Ante, § 346.
428 NATIONAL JUDICIAL POWER.
the United States is, in each State, the highest or ultimate rule of positive law for all natural persons not identified with the possessors of sovereignty,1 the judiciary, in applying that law, must determine on the powers held hy the several States under the Constitution. The extent of the powers of the State Govern ments is, therefore, also primarily,3 a question under the Constitution of the United States falling within the judicial power.
§ 365. The declaration, that the Constitution of the United States is the supreme law in each State, proceeds from the author of the Constitution, the integral people of the United States. This declaration then has the force of law in each State by the will of the integral people of the United States, not by the several will of the people of the State. Now, to the existence of every law, a judicial function, co-ordinate with the legislative, is essential. If the law is supreme, that judicial function is supreme which emanates from the author of the law, otherwise the law would not be supreme. But the Constitution of the United States is confessed to be the supreme and absolute law, in either characteristic, (i. e., as a rule of action or evidence of the location of power) being based upon the will of the ultimate possessors of sovereign power. If so, the judicial power accompanying this supreme legislative rule, or proceeding from the promulgators of the rule, must also be supreme wherever that rule has extent.
The Constitution declares that the judicial power of the United States shall be vested in a certain judiciary,3 forming part of the Government constituted by the possessors of ultimate sovereignty. The judicial power of the United States can be nothing else than the power to administer judicially that law which is the supreme rule declared by the constituent people of the United States, and the law being supreme the judicial
1 Art. VI, 2d clause, "This Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall bo the supreme law of the land, esi tho judges in every state shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding."
'That is, when no reference is made to the State constitution, and when the question is, in fact, what are the powers of the constituent people of a State?
• Art. III., sec. 1.
PLACE OF THE JUDICIARY. 429
power accompanying that law or derived from that people is supreme. And when in the first section it is said, "the judicial power of the United States shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish,"—though the word supreme cannot, in this connection, be taken to mean judicial supremacy absolutely, or in reference to all judicial administration of the national jurisprudence,1 but evidently designates supremacy relatively to the co-existence of inferior courts clothed with the judicial power of the United States, yet, from the nature of the authority on which that jurisprudence rests, the highest judicial court created under this Constitution is supreme in all questions arising under the Constitution. Its supremacy being limited only by the fact that the possession of sovereign powers—those held by the United States and granted to a national Government on the one hand, and, on the other, those held by each State severally—is not the result of a rule contained in the Constitution, but is a fact proved by it.
§,366. The judicial function of the Government of the United States determines, therefore, the recognition of all coercive rules of action for private persons within the limits of the United States; or, is the final test of all action of that Government affecting liberty or freedom of action, and of the limits of the powers remaining in the several States to affect it. That it has that extent is a necessary inference from the nature of the Constitution as law;' and with reference to this quality of the Constitution must the clause be construed which defines the extent of the judicial power, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution,"3 which
1 Meaning all rules which derive their force from the national will, though they may be applicable by a judiciary deriving its power from one of the several States.
* Ency. Am. VII., (App. by Judge Story,) pp. 581, 582.
* The judiciary thus decides on the powers which may be exercised by the co-ordinate executive and legislative functionaries of the national Government, and by the State Governments; but only when the rights and obligations of private persons, as affected by those powers, come before it in a caie. The judiciary cannot, from the nature of the judicial function, decide prospectively on the powers of the executive and legislature or of the State Governments. They must always, in the first instance, judge for themselves, 1 Kent's Comm. 7th ed. p. 497, 22d Lect. Curtis' Comm. p. 94. Benton's Examination of the Dred Scott case, pp. 3, 4. I
430 SUPREMACY OF JUDICIARY.
must include questions of the location of power, so far as it is a thing determined by the Constitution as a law in the primary sense, or so far as it is distinct from that fact of the investiture of original power of which the Constitution is the evidence and not the cause.
Since an essential part of every judicial act is to recognize the supreme power which promulgates law, every judicial officer in the United States decides the constitutionality of any law, governing the case before him. as legitimately proceeding either from those powers which are vested in the national Government, or those remaining in a State. And since all acts of power proceeding from any person or political body who is not identified with the sovereign possessor of the original power of the state, must, within that state, be based on some law,—rule of action, and may be tested by the judicial function of the instrument of government, the decision of the supreme national judiciary is, to the individual, in any part of the United States, the rule of his obedience until one or the other of those possessors of original sovereign power, that is, the United States or the single State claiming local jurisdiction, by action as a sovereign abort lata, causes a different recognition of the source of law. If then it is supposed that a usurpation of the powers distributed according to the Constitution may occur, either on the part of the national Government or of a State, the question of usurpation or non-usurpation is, according to the highest law, now existing, to be determined, for the individual natural persons concerned, by the judiciary of the United States.1
§ 367. By the "judiciary" act of Congress, September 24, 1789, § 25,' which the Supreme Court has decided to be consti- 1 Bank of U. S. v. Norton, 3 Marshall's Ky. R. 423; Braynard t>. Marshall, 8 Pick. 196; Hempstead t>. Reed, 6 Conn. R. 493; Commonw. r. Lewis, 6 Binney, 272; Ewbank v. Poston, &c, 5 Munroe's Ky. R. 294; Bodley r. Gaither, 3 of tamt, 58; Lessee of Jackson v. Burns, 3 Binney, 84.
* "Sec. 25. A final judgment or decree in any suit, in the highest court of law or equity in a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of such their validity, or where is drawn in question the con