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NO UNIVERSAL ATTRIBUTION OF BIGHTS. 471
liberty or to a legal condition of freedom, and were as such unnecessary to the vindication of the acts of the revolutionary Congress, it is evident that it did not come within the scope of the powers of that body to declare them, and that they have no force in affecting legal rights, either in the general law of the nation or in that of the several States.
§ 418. The doctrines of this state paper, except in their connection with political relations, never obtained the force of law by their promulgation therein, either in the national or State jurisdiction, nor have any legislative or judicial authorities, under the constitutional division of sovereign powers, ever recognized the instrument as affecting the previous foundation of the laws of personal condition in this country. The only occasion for regarding these propositions as a standard of conduct for private persons, is found in comparing them with the private relations and public career of those who subscribed them.'
The same remarks apply to the declaration of Congress, July 6, 1775, giving the reasons for taking up arms against the British Crown.
§ 419. There is apparently nothing in the signification of the Constitution, or of the public acts of the people of the United States in their united or national possession of sovereignty, which can be justly construed into a universal attribution of the rights of legal personality, or a voluntary abnegation of this power over personal condition ; * whatever recognition there may 472 Object or The Constitution.
1 No written declaration of political principles can be construed or interpreted without reference to its actual correspondence with the acts and circumstances of its authors. In 1297, at a time when the King of England was, practically, an absolute monarch, and a large portion of the community were in a state of villenage, the writs issued by Edward I. for the assembling of a Parliament contained this sentence: "What concerns all should be supported by all, approved by all, and common danger should be repelled by all." From this public act some have argued a legal right thereafter to universal representation, or the right of every one not to be taxed without his consent. See Wade's History of the Middle and Working Classes, p. 450.
* Chief Justice Taney, in Dred Scott's case, 19 Howard, pp. 409, 410, citing these clauses in the declaration, can hardly be supposed to have intended to argue more from their existence than is argued in the text above: that is, only that they are not to be taken as a juridical act altering the status or civil condition of persons of African descent, as it then existed in the colonies. The Chief Justice refers, as has here been done, to the history of the times and of the authors of the instrument, to prove that they are not to be so interpreted. On page 410—" It is necessary to do this in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions."
be in the same instrument of rights in the people, as certain determinate masses of individuals, by those provisions which are of the nature of public and private law, or bills of rights, and are national in their jurisdiction or extent.
§ 420. The object of the Constitution is "to secure liberty to the people of the United States ;" but for that purpose it establishes a Government, and invests it with powers to act upon all persons within the United States; and at the same time it acknowledges the possession of the residue of sovereign powers to be in the several States, or the several people of each State, as a distinct political personality. The liberty therefore which is recognized by the Constitution, in this declaration of its
But, from the mode of statement employed in the next sentence of the Opinion, it might seem that the Chief Justice was not satisfied with drawing only such a negative conclusion from those clauses, but found, in the ivry expression* Ihfmselres, a direct averment that negroes were not to be considered capable of legal rights, and even that they were property and not persons. For, having on the preceding pages cited the customary and statute law of the colonies and the empire recognizing slavery and the civil disabilities of free negroes, and having, just before the sentence above quoted, said: "We refer to these historical facts for the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted." He then (after the sentence first quoted) says: "The language of the Declaration of Independence is equally conclusive. It begins," &c.
If one says—" Feed oats to all my horses,"—it might be shown, aliunde, that he means only all his white horses. But it could hardly be concluded from the words themselves, that his black horses were not to have any. That the negative conclusion, in the text above, is the gist of the argument in the Opinion, appears further from page 110: "The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day, would be so understood. But it is too clear to dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for, if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with," &c. &c.
Much has been written respecting Mr. Jefferson's claim to originality in his part of the composition of the Declaration. But it may be noticed, that the excellence of the composition is, precisely, in its want of originality. It has been proved that the most striking expressions were only adoptions of forms of speech, which were familiar to all who had spoken or written on the issues of the Revolution, and chiefly derived from the writings of Locke, Shaftesbury, Algernon Sidney, and other writers of similar political opinions It was, for thU retuon, a successful utterance of the ideas of the people of the colonies, (whatever may be thought of the philosophical accuracy of those ideas.) and not to be construed by the habits of thought of the Committee of Congress who reported it. If it had been original with that Committee, and if Mr. Jefferson, as is admitted, bore the principal part in its composition, it should be interpreted by his peculiar views. And that he, individually, gave a universal personal extent to such expressions, irrespective of distinctions of color or race, is abundantly proved from his written works.
LIBERTIES UNDER LAW. 473
object, comprehends the idea of law as well as of liberty; and consists in relations wherein the right of one man is associated with the duty of forbearance in another; and both right and duty are consequences of that relation of superior and inferior which is implied in every law, strictly so called. The Government of the United States being itself subject to the supreme power which establishes the Constitution, the liberty of individuals recognized by it may be said to consist in the restraints on the Government in the exercise of powers vested in it by law, as well as faculties of action in private persons; although it is not necessary to infer from this language of the Constitution that liberty of condition is promulgated by it as by a personal law of universal application.
§ 421. The people of the United States, the authors of the Constitution, may also in the same instrument, by their joint action, restrain the exercise of the powers held by the States severally over individuals; constituting therein a legal liberty for the persons subjected to those powers; each State being thereafter bound by a duty of forbearance similar to that binding on the national Government; though, from the intrinsic nature of its political existence, that duty, regarded as duty of the State in its political capacity, is rather the consequence of an international law or compact, than of a law in the strict sense; while the liberties arising from it, to the individual, and the corresponding duties of all private persons are, in resting upon the Constitution, of a truly legal character, and are founded on a national municipal law, binding on all private persons as a law in the strict sense.
§ 422. The public law of the United States, determining the legal extent of the powers held by the national Government and the restrictions on the powers of the States, is therefore also private law in being the law of the liberty of private persons. The liberties of legal persons which might be guaranteed by the Constitution, and thus rest upon a law having both a territorial and a personal extent or character, are either political or civil.
The entire sovereignty of the United States, that is, the sum of the sovereign powers held by the States both unitedly
474 POSSESSION OF POLITICAL LIBERTY.
and severally, being recognized in the Constitution to be held by the people of those States, this sovereignty has the national character exclusively, as opposed to a private character, according to the distinction made in the use of those terms in a former chapter ;' and the law, in acknowledging that sovereignty, recognizes the possession of political rights by the individuals constituting the people; while at the same time the possession of sovereignty by the people in their double political character— as one nation, and as separate political bodies,—is a fact antecedent to and lying at the foundation of all law in the primary sense,—all rules of action to be judicially recognized in this country as the positive law. The possession of those rights constitutes liberty in one of its forms of existence, viz., political liberty, as before defined ;* and is necessarily a private right in individuals, i. e., the right of a private person.
But in considering freedom of action in civil or social relations, as a topic of private law, political liberty needs not to be farther considered except so far as it is connected with civil liberty in being, necessarily, a legal attribution of the capacity for the rights of a legal person, and inconsistent with the condition of a thing, or of the object of the rights of others; and also in supposing, in its possessors, a legal liberty of choice and action totally incompatible with the existence of an involuntary subjection, in social relations, to another person. This political liberty, as the right of the individual member of the civil state, is determined by some law, in the proper and ordinary sense; and, for the present purpose, the most essential consideration in regard to it is the foundation upon which it rests, in the public law of the United States; or the location of that power of sovereignty which originates that political right.
§ 423. If the possession of political liberty by individuals is not fixed, in the Constitution, by the national exercise of this power on the part of the people of the United States, (that is, by private law contained in the Constitution,) it must, under the constitutional distribution of power, be vested either in the
1 Ante, § 354 and note. « Ante, § 352.
ITS POSSESSION, HOW DETERMINED. 475
national Government or in the several States. But though the possession of political rights hy individuals is a fact which enters into the actual continuation of the national Government, and the exercise of those sovereign powers in and by the Constitution which, by the force of such exercise, constitute the people of the several States into one nation or state among the other "powers of the earth," there is nothing in the Constitution itself which determines who are the individuals that are to constitute the political people of that nation, or who are, in other words, to enjoy this liberty of action, in respect either to the political existence of the nation, or that of the several States. The only provisions in the Constitution which directly affect political rights or privileges, are those which limit the qualifications for office, or determine political capacities in respect to the organization of the national Government. These, in determining the instruments of supreme power, or the persons to whom it shall be intrusted, are public law as well as a law determining the rights of private individuals; and, though they are material for securing political freedom to the people of the United States in their character of an embodied state or nationality, or, in other words, for maintaining the national possession of sovereignty in its present form, and hence, derivatively, for securing all individual freedom of action, they are not necessary to be here considered.
§ 424. Since therefore the possession of those rights of action which constitute political freedom in private persons must be determined by some who are vested with sovereign power, the power to determine that possession must either be vested in Congress or be reserved to the States respectively, or the people of those States, as together exercising the sum of sovereign legislative power not already exercised in the Constitution.
If the term " republican government" implies the possession of political liberties by any of those who are also individually subject to the supreme power of the state, the provision in the Constitution that the United States shall guarantee to every State of the Union a republican form of government,1 taken in con
1 Art. IV. Sec. 4: "The United States shall guarantee to every State in this Union a republican form of government."