480

COMMON LAW OF THE STATES.

action; and common law in any State of the Union is therein the supposed will of the State sovereignty in reference to an immense variety of action. Its identification with the State or local sovereignty is inferred from the fact, that by the Constitution of the United States the State has power to control action in those possible natural relations which are now or have been determined by rules judicially known as common law rules." But the powers of the national Government over the action of persons, within the limits of the States at least, are derived by specific grants, and to suppose that the common law is a rule of action enforceable by that Government would be to attribute a rule of action to its authority, without reference to the nature of its powers to make a rule. Congress, in the exercise of its legislative powers, might adopt a rule previously expressed in "common law;" but the extent and force of that adoption would be limited by the grant of power in the Constitution. "Common law," therefore, is not the territorial law of the United States as one domain, even if any system of rules is recognized as common law, distinct from the juridical will of some one State of the Union in which the English law of the individual and relative rights of private persons has, in a modified form, acquired a territorial extent.

§ 429. But laws apply as personal laws as well as territorial laws; or, have a personal extent which may be distinguished from their territorial extent; and where the national Government has power to administer law between persons (from a grant of power over them as specified persons) without reference to the administration of any particular system of laws, if those persons have sustained relations under the law, having territorial extent in some State, which is in such State known as (6 common law," there the national Government may be said to have a common law jurisdiction, in applying it to persons over whom it has this personal jurisdiction.

Thus the judicial power of the United States, applying to cases, is described by cases under certain laws, and cases between certain persons. Although the laws under which the first class of cases may arise are only the law contained in the Con

NO COMMON LAW OF THE UNITED STATES.

481

stitution, treaties, and the legislation of Congress, the cases between persons may be cases at common law; in which instances the common law enforced by the national judiciary will be the law of the local domain under which the person, upon whom the national jurisdiction has attached, may have sustained relations and have acquired rights or incurred obligations.'

§ 430. If the common law in any jurisdiction is that law which is judicially recognized as the rule of natural reason,2 it might appear strange that such a law should not be a part of the national municipal law. But it is to be remembered that the legal coercive effect of the common law of England or of any State of the Union does not depend upon its actual accordance with natural reason, but upon its acceptation as such by the possessor of sovereign power. Now the United States have established a national rule only in regard to certain specified matters or relations. It is, therefore, as to such only that the national judiciary can enforce a rule of action, however derived, either from a legislative act, or from a judicial interpretation of natural reason. As to such only can the judiciary apply natural reason according to standards identified with the will of the United States as one nation. But, in considering the jurisdiction of the national judiciary over persons and the laws which it may apply, a distinction is to be made between their having authority to ascertain the rule of natural reason applying to certain relations or conditions of action, and their having authority to enforce a rule over certain persons which is derived from natural reason by, or according to the judgment of, another possessor of sovereign power, not identified with the United States in their national capacity. Before any rule derived by a judicial reference to natural reason can be enforced by the national Government it must be identified either with the will of the United States, or with that of some single State; and the criterion of those matters or relations as to which the United States can be taken to have given a rule of action is in the Constitution only.3

1 Ante, § 368. Duponceau on Jurisdiction, p. 47.

2 Ante, § 35.

The question, here made, is of the law by which civil rights and obligations may be created or become existent; and whenever in the national jurisprudence they are

482

NATIONAL COMMON LAW.

§ 431. Common law then (including herein the law of nations, jus gentium or universal jurisprudence, so far as it is a law of personal condition') is in each State alterable only by the State power; except so far as limited by the constitutional provisions before referred to.

If, as has sometimes been asserted, Christianity, or the code of morals known as the Christian, ever had legal effect either as part of the "common law of England" and America or of the law of nations among nations called Christian,' its continuance, with legal authority in determining the relations and rights of persons, is not maintained by any constitutional provisions giving it the effect of a national law for the United States. And, whatever may be the degree of correspondence between that code and the existing laws of the United States, its recognition as a judicial rule within any State of the Union depends solely on the separate sovereignty of the State.

§ 432. How far the "common law" may be a national law, in the sense of a law resting on the power represented by the national Government in the Territories, District of Columbia, &c., is a question of that one of the local municipal laws, as before defined, which may therein prevail. Because those Territories, &c., are, in reference to the rest of the Union and in point of severalty of jurisdiction, like the several States.'

recognized as effects of common law, that law is also known as local municipal law. This is the general rule, at least as to those rights and obligations which constitute the personal condition or status of private persons. But when the judicial power of the U. S. is exercised, under the Constitution, to actualize or realize (ante, p. 59, n.) those effects, the national courts must (in the absence of statute) adopt a rule of natural reason determined by general principles of jurisprudence. (Ante, § 29-36.) This must be a customary or common law identified with the juridical will of the nation, the authors of the Constitution, and not with that of any one of the local sovereignties. So, when "cases at law and equity" arising under this Constitution, &c, are to be decided in the national tribunals, the cases are to be distinguished according to the jurisprudence of England as familiarly known here, (Story's Comm. § 1645, and the rules of remedy are not the practice of some State, "but according to the principles of common law and equity as distinguished and defined in that country from which we derived our knowledge of those principles." (Robinson v. Campbell, 3 Wheaton, 212, 221, 223; 1 Kent, 342.) So that there is a sense in which a national common law may be said to exist and be adopted by the Constitution to the extent of making it "a rule in the pursuit of remedial justice in the courts of the Union." (Story's Comm. § 1645 and § 158, note.) Whether the courts of the U. S. have jurisdiction to punish acts which, though not made punishable by the legislation of Congress, are criminal by such a national common law, is a different question. Comp. 1 Kent's Comm. Lect. xvi; Rawle on the Const. ch. 28; Duponceau's Treatise; 1 Tucker's Bl. App. E.

Ante, § 110.

Ante, § 174.

3

Ante, § 397. Duponc. on Jurisd. 29, 30.

STATUS FIXED BY THE STATES.

483

§ 433. There is therefore nothing in the Constitution of the United States which (either by abnegation of the power to establish a chattel condition as a personal distinction, or by attributing the legal rights of persons to all mankind, or by an adoption of the English "common law" in respect to individual and relative rights as a national and territorial law) determines the civil condition or status of natural persons under a law having national extent, to be recognized throughout the dominion of the United States and to be enforced by the national Government.

Further, the powers specifically granted to Congress, for enacting laws to have national extent, are not of such a nature as to determine those rights of persons the possession or nonpossession of which is the most important element of a free condition or of its contraries; that is, individual rights,' even independently of those restrictions on the national Government which have the character of a bill of rights; and even the personal application of the reservations against the powers of the national Government, in favor of specified rights of private persons, is not determined by the Constitution itself.

§ 434. On the other hand the restrictions in the Constitution of the United States, on the powers held by the States severally, are not of such a nature as to limit their power in the creation of local law affecting private rights, except in a few relations, not embracing those rights which distinguish a legal status or condition of persons, and in certain specified international and quasi-international relations. The power therefore of determining by personal laws the condition of individuals and their enjoyment of civil liberties belongs to the States, as the proper object of their own municipal (internal) law, under that share of sovereign power which remains in them severally, subject only to the undetermined effect of the national guarantee for a republican government, and restrained, in its application to persons, by general international obligation, (law in an imperfect sense,) and the law (in the strict and proper sense) of the Constitution having similar effect with coercive authority over private individuals.

484

STATUS FIXED BY THE STATES.

§ 435. The power over civil liberty and the legal possession of the rights of private persons being, to this degree, within the powers of the States severally, they, by their own local law, determine within their own territory even the personal application of the constitutional reservations in favor of "the people" against the powers of the national Government; that is, it would seem that in each State it remains for the State to determine who constitute the individuals of that "people" who, by legal capacity for the rights referred to in those provisions, are not to be prohibited by the national Government "from assembling peaceably for the redress of grievances," whose "right to keep and bear arms shall not be infringed," who are to be "secure in their persons, houses, and possessions against unreasonable search or seizure." For since the legal unreasonableness of a search or seizure depends upon the legal nature of the rights of personal liberty, personal security, and private property, (where distinctions can be made between natural persons according to the degree in which they possess those rights,) if the States determine the legal capacity of persons, that determination will operate in reference to the judicial and executive powers of the national Government, when they act upon the same persons. And even supposing that no law of Congress had been made, or could be made, to affect relations founded on such personal distinctions, yet it may be supposed that the constitutional obligation of the United States, to maintain by force the domestic tranquillity of each State, might give occasion for the recognition of those distinctions by the national executive and judiciary.2

§ 436. During the connection of the American colonies with the British empire, as before shown, the common law rights of Englishmen were established, by that law, for the white inhabitants, at least, of each colony, by the imperial as well as the local sovereignty; and the same law, as personal to those colo

1 Art. I., II., IV., of Amendments.

Art. IV. sec. 4. "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature or of the executive, (when the legislature cannot be convened,) against domestic violence."