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APPLIED INTERNATIONAL LAW..
nation having in this respect a peculiar law,' a jus proprium, differing more or less from that of other nations, according to the greater or less degree in which it may be historically connected with them, or in which it may have with them a community of origin and language, and a political affinity.?
Though always supposed to conform to a general law prevailing among all 1stions, public international law, the “law of nations" in that sense; and by English and American jurists it is rarely distinguished by any other name. Compare este p. 88, note. By the French writers it is designated droit gouvernemental extericar; by the Germans, äusseres Regierungsrecht, or äusseres Staatsrecht; Falck's Jurist. Ency. 88 45, 135.
i Thus, whether an administrative Government (not identical with the ultituste possessor of sovereign power) may or may not at its discretion deliver, to the custody of foreign states, persons who are demanded as obnoxious to the punitory law of such states; or, if it may so surrender such persons, whether the act requires the co-oper. ation of two or more of the three functions of power, when separately invested, aze questions not determinable by public international law alone, simply as a general rule among nations, but depend very much on the internal public law of the state and of its form of government; which, therefore, must always be taken into account in the application of an international treaty for such extradition or rendition.
Falck's Jurist, Encycl. $ 135, Fr. ed. “On distingue avec raison, du droit des gens positif de chaque état particulier, le droit des gens positif universel, attendu qu'on peut apercevoir, au moins entre les peuples qui entretiennent ensemble beaucoup de relations, un accord sur les règles de droit positif aux-quelles ils conforment leurs setions et d'après lesquelles ils veulent qu'elles soient jugées."
THE LOCAL MUNICIPAL LAWS OF THE UNITED STATES, AF
FECTING CONDITIONS OF FREEDOM AND ITS CONTRARIES, CONSIDERED IN CONNECTION WITH PRINCIPLES OF PUBLIC AND PRIVATE LAW WHICH HAVE BEEN STATED IN PREVIOUS CHAPTERS.
$ 468. Reference has already been made, in the eleventh chapter,' to the fact that at the date of the Revolution the geographical limits of the original colonies were not definitively settled. The present limits of the older thirteen States and of the States Kentucky, Vermont, and Maine, were determined by various agreements between the States, to which it is not necessary to refer more particularly, and by the cession or grant of portions of the territory claimed by them, or by some of them, to the Confederation or to the United States in their national or federal capacity. These older States will herein be taken to have had their present boundaries from the period of the separation of the colonies from the British empire. The effect of the different cessions of territory made by some of those States to the United States, in determining the existence of local laws in and for certain limits, will be considered in the history of the laws of the Territorial jurisdictions and new States afterwards formed in the territory ceded.
$ 469. It has already been shown that the people, who (under the name of the people of the United States” in the preamble to the Constitution) appear as the constituting and delegating
person, and the people who, in the tenth Article of the Amendments, are declared to be, in the alternative with the States, the possessor, by reservation, of the powers not granted to the national Government, are of necessity to be recognized as already existing in the form, organization, and political personality of the people of " several States," although having, antecedently to the Constitution, a national organization and integral political personality. The existence of the political people of each several State is, therefore, not a result of the Constitution, (as of a law in the primary sense,) but only a fact proved or asserted by it, (as by a law in the secondary meaning of the term.)' And, in accordance with the view which is herein before taken of the nature of the Constitution of the United States and of the meaning of the term law when spoken of as determining the actual investiture of sovereignty, the supreme and independent powers which, according to that Constitution, are vested in the several States or the several political people of those States are not taken to be held by such States or people under a law in the strict sense contained in the Constitution ; but that possession must be considered antecedent to law, in the sense of a rule, and co-ordinate with the possession of other sovereign powers by the same States, or the people of the same States, united. The Constitution, in determining this relation also, being a law in the secondary sense only, the statement or evidence of an existing fact. Though in reference to persons who are the instruments or the subjects of that power, it has the effect of law in the primary sense, or of a rule of action.
§ 470. As, therefore, the possession by the united people of those powers which in the Constitution are granted to the national Government is a fact underlying the national municipal law, it is in like manner the first or basal principle of the local law of each of the several States of the Union that the people thereof, as a political personality, pre-existent to the State Government or the organized instrument of that sovereignty, are the actual continuing and original possessors of that separate share of sovereignty spoken of in the Constitution of the United
Ante, 88 330–346.
States as being “reserved to the States or to the people.” As the political existence of the people of each State is not caused by the Constitution of the United States, neither is the possession of those powers by that people an effect of the same; neither fact being established by it for the future ; unless the guarantee for a republican government has the effect of securing such a popular or public (national), as opposed to private, investiture of the political sovereignty to be exercised severally in such State over persons and things therein.
$ 471. Although the fact of the possession of this share of powers by the several people of one of the States is thus a fact antecedent to the recognition of the positive law of that State, its local municipal law, yet the mode in which individual inhabitants are to participate in that sovereignty and be individual members of the political people, (which is political liberty considered as the right of private persons, according to previous definition,') is the consequence of a rule of action made positive law by the will of that political integer, the political people of the State. Which law is private law, in respect to its effect upon natural persons, though public law in its relation to the existence of the State.
$ 472. In each State of the Union, on the assumption of political sovereignty by the confederated colonies in the Revolution, the laws determining the actual constitution or composition of the political people of the colony continued, by the very fact of the assumption of independent supreme power by the people of the United States, and were established in the successful maintenance of that assumption."
? Ante, $ 424.
? Ante, § 354 and note. 9 Municipal law of the State, meaning that law which is both internal and international in personal extent, and which, in its kind, is more properly called national, as derived from the exercise of independent sovereign power such as belongs to states or nations, ante, S 9. But, to avoid confounding it with that law which is herein called national from its origin in the will of the United States as an integral nation or state, the word municipal is here used for the State law. Compare ante, p. 222, note.
* Ante, $ 352.
5 Ante, $$ 335–346. The people of the U. S. are primarily known as the people of the several States (ante, $ 343). If, therefore, the doctrine of the social compact has ever been realized in the political history of this country, it must have been in the existence of some several State or States. But neither the history of the States nor that of the Union exhibits any illustration of the compact which might not, with equal propriety, be called a usurpation (ante, p. 120, note 2). Using the metaphysical distinction between an idea of the reason and a conception of the understanding, it may be said: “Reflect on an original social contract, as an event or historical fact, and its gross improbability, not to say impossibility, will stare you in the face. But an ever originating social contract as an idea, which exists and works continually and efficaciously in the moral being of every free citizen, though in the greater number unconsciously, or with a dim and confused consciousness, - what a power it is!" Coleridge's Literary Remaing, vol. iii. p. 34, in note to the following from Hooker's Ecclesiastical Polity, C. X. 8, p. 308: “Of this point, therefore, we are to note, that sith men naturally have no free and perfect power to command whole politic multitudes of men, therefore utterly without our consent we could in such sort be at no man's commandment living. And to be commanded we do consent, when that society whereof we are part, hath at any time before consented, without revoking the same after by the like universal agreement. Wherefore, as any man's deed past is good as long as himself continueth, so the act of a public society of men done five hundred years sithence standeth as theirs who presently are of the same societies, because corporations are immortal; we were then alive in our predecessors, and they in their successors do live still. Laws therefore human, of what kind soever, are available by. consent." And see Coleridge On the Constitution of the Church and State according to the Idea of each, ch. i.
§ 473. The law of political rights, or of the political liberty of private persons, is the fundamental law of any state wherein sovereignty is a public or popular (national) right, as contrasted with private right, and the essential fact of its constitution, whether written or unwritten.' In the several States of the Union this law, of the possession of political liberty by private persons, has been determined by the same acts by which Governments, distinct from and subordinate to the political people of such State, have been founded, formed, or constituted. And, from the mode of existence of that “people of the United States,” which established the national Constitution, the possession of political liberty by private persons is, in reference to the sovereign powers which are, in each State, held by that people with national extent or for the purposes of their national (federal) existence, determined by the same acts. In other words, the laws, which in the several States determine the individuals composing the political people of each State, determine also the composition of the political people of the United States acting as one, or so far as they are one people or integral body.
§ 474. In all the existing States of the American Union the political people of each have founded Governments for the administration of their share of sovereign powers, delegating to those Governments, with limitations, the powers of the State or
? Ante, &. 355.