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THE LOCAL MUNICIPAL LAWS OF THE UNITED STATES, AFFECTING CONDITIONS OF FREEDOM AND ITS CONTBABIES, CONSIDEBED 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,1 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
Ante, § 347.
512 THE PEOPLE OF THE STATES.
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
1 Ante, §§ 330-346.
POLITICAL PEOPLE OF THE STATES. 513
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 government1 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 municipal3 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,4) 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.5
1 Ante, § 424. * Ante, § 354 and note.
* 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, § 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.
4 Ante, § 352.
• Ante, :;;5 335-346. 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 dUtiiictioii 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 Remains, 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. L * Ante, §. 855.
514 BASIS OF STATE GOVERNMENTS.
§ 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.1 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
LIBERTY UNDER STATE GOVERNMENTS. 515
people; the limitation of the power of the Government being made in written Constitutions, both by absolute reservations of power and by prescribing forms, in which only the powers granted shall be exercised. The Constitutions of the several States, like that of the United States, are evidence of the fact that the people of those States hold the supreme power, and have the same character of public and private law (in the primary sense of a rule) determining the political liberties of private persons, because they have rights secured to them thereby as individual members of the integral body-politic.1
§ 475. The modal existence of the sovereignty of a state and the form of its instrumental government being, essentially, its constitution, and these State Governments being founded on the political rights of individuals, who, as natural persons, are also subject to the Government of the State, these Governments are republican, according to the definition before given.' Although the meaning of the term in the Constitution of the United States has never been judicially determined, yet, since no appeal has hitherto been made to the Government of the United States, under that guarantee, from any quarter,' it is to be presumed that all the State Governments have a republican form.
§ 476. There being then in all the States a law, proceeding from the ultimately sovereign people, establishing a Government distinct from and subordinate to that sovereign, that freedom of action which has herein before been called social or civil liberty may also have, in the local law of each State, a constitutional basis; or, by being acknowledged or established by the authority which constitutes the Government, may be independent of the power held by the latter.
§ 477. When the powers held by the national Government
'Ante,% 359. 'Ante, §§ 355-357.
* That is, no direct appeal to the administration. There are many publications by private persons, singly or associated, appealing to public sentiment, in which it is held that the holding of slaves is now illegal in every one of the States, because contrary to national law contained in this and other provisions of the Constitution; see the Unconstitutionality of Slavery, by Lysander Spooner, p. 105; Abolition Documents,No. 2, containing a speech in House of Rep. April 4, 1856, by Mr. Granger, of New York, among many other publications of "anti-slavery" associations.