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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.!
§ 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 Státes 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, S 359.
? Ante, SS 355-357. 3 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.
and those possessed by the several States, or by the people of each respectively, are to be discriminated in reference to their possible effect upon civil liberty, there is this very important difference between them, that the powers of the first are ascertained by their being distinctly and separately enumerated in the Constitution of the United States, and its allotted share of supreme powers consists only in those specified and such as are necessarily concomitant in order to render them operative. These powers, therefore, being granted in words having a precise and ascertained legal meaning, their boundaries may be defined with some degree of certainty. But the powers which, according to the evidence of the same instrument, are vested in the States or the people of the States severally, are described by way of residue, or reservation; or, as being all sovereign state power not granted to the national Government nor prohibited to the States.
$ 478. It was herein before considered a necessary judicial doctrine and the first principle of positive law, (the subject of jurisprudence,) that sovereign power may always ordain that to be law which it has the physical force to make a coercive rule.'
' Ante, $ 15. Since the distribution of the sum of powers (inherent in civil society and separately held by each independent nation or state) which are to be exercised in each State of the Union, is known by the delegation of specified powers to the national Government, the proposition in the text is more immediately connected with the local municipal laws than with the national municipal law of the U. S. It is here as sumed as axiomatic; no other proof being attempted than that offered in the first chapter, so far as that may show its harmony with other principles of general juris prudence. That there are many persons occupying distinguished social and political positions in this country, who hold that a condition of slavery, whether chattel slavery or the involuntary servitude of a legal person, is not, cannot be, and never has been lawful or legal, is not disputed. But they do not, for that reason alone, constitute juridical authority, nor are they juristical authority, if the doctrine advocated involves a denial of the fundamental principle of all positive law. It will not be attempted to select, from the writings of such persons, any as being of more authority than others, But among them Mr. (Senator) Seward's will be allowed a distinguished position; and, in illustration of such opinions, reference may be made to his Works, particularls vol. i. pp. 66, 71, 80, 312, 494, 514. Such assertions may be perfectly unanswerable, because they are stated as a priori principles requiring no proof; or, the only proof is founded on an assumption that the author's idea of right is the state's conception of a jural rule, regula juris. In this respect they are neither better nor worse than prope sitions diametrically contradictory, such as are sometimes put forth by defenders of negro slavery. Compare the writings of Chancellor Harper, Governor Hammond, Dr. Sims, and Professor Dew, in a publication entitled, The Pro-slavery Argument, 12mo. Phila. 1856. These writers have rather the better, in this at least, that they do in some degree recognize a standard of right derived a posteriori, and independent of their individual moral judgment, and profess to find it in the history of civil societies.
But it was also insisted that there may be such a recognition of a moral rule for states or nations, that it must always be judicially presumed to be the constant will of the sovereign power, until positively repudiated by it.'
If it were supposed that a constituted Government could receive from the sovereign people, by grant, the whole of their power over each subject person or thing, then the Government might, as sovereign, repudiate all former restrictions acknowledged by the sovereign people, its creator and predecessor. But since by the fundamental law (law in the secondary sense) of each State of the Union the ultimate sovereignty of the people confessedly subsists as fully as at the time of the original constitution of the Government, if any abnegations of power on the part of the people existed at the time of the creation of the Government, they would still remain as the expressed will of the ultimate sovereign and limit the power of the administrative instrument.
Upon the supposition then, that in a state wherein the supreme power is publicly or popularly (nationally) invested, the organized Government may hold, by representation, all the power, belonging to the political sovereign creating it, which is not necessarily withheld by the fact of its subordinate existence, it is first of all important, for ascertaining the power of the several State Governments to affect civil liberty, to determine whether there are any principles, besides the law contained in the Constitution of the United States, which can be taken to be a moral rule restraining the action of the ultimate sovereignty in any of those States or in the people thereof, and, therefore,
Whether their induction is correct is another question. In a miscellany, entitled, Leisure Labors, by Joseph B. Cobb, Esq. 12mo. New York, 1858, it is asserted, p. 360, not only that neither the national nor any State Government can abolish slavery in any local jurisdiction of the U. S., but even, pp. 367, 387, that in Greece and Rome the government could not (i e., had not the political power to) “ destroy the relation of master and slave, or deprive the first of the labor and value of the last."
From the language of Mr. Justice Catron, in Dred Scott's case, 19 Howard, 519, it might be inferred that in his view man is properly described as property, or that under the term property men, as well as other things, are included; and that a freeman is well defined as a man owned by himself! "The plaintiff (Scott] claims to have acquired property in himself, and became free by being kept in Illinois during two years,"
* Ante, pp. 460, 461.
necessarily binding on their several subordinate or constituted Governments.
$ 479. But where any administrative Government subsists under a form determined by law, properly so called it is evident that it cannot itself wield the whole of sovereign state power, one of whose characteristics is to be exercised in any form or mode its possessor may choose to employ.' In each State of the Union there is such a Government, acknowledged to subsist by the will of the sovereign people thereof, or to be subject to the public law creating it. So far as civil liberty consists in being controlled only by known laws proceeding from rightful authority, it is secured under each State Government, as under the Government of the United States, by those provisions of the public law which separate the functions of power and prescribe the forms of legislation."
$ 480. In most of the older fifteen States a written Constitution of Government replacing the former colonial public law, and expressly founded on the assertion of the existence of a sorereignty in the people of the State, distinct from and superior to the powers exercised by the Government, was established during the revolutionary period, or before the establishment of the existing Constitution of the United States. But in two, viz., Connecticut and Rhode Island, while the people were acknowledged by the acts of the local legislative body, as well as in the formation of the national Constitution, to be the actual possessors of sovereignty, the form of the local Government remained such as it had been under the colonial charters, until : much later period, there being no specific acts of assumption of sovereignty by the political people of the former colony in any delegation of powers to newly constituted State Governments.
In these States, however, the popular investiture of local sovereignty had been more distinctly recognized, during the colonial period, than in the other provinces.
In these States, therefore, anterior to the adoption of a written State Constitution, the distinction between the power
Ante, p. 424. * Ante, s 363. 2 Curtis' Hist. Cons. 8. Wynehamer agst, The People, 3 Kernan, 391.
of the State and that of the administrative Government may not have been so clearly defined as in others. The separate or residuary powers of the State or of its people under the national (federal) Constitution being held by its administrative Government very much in the same manner as the sovereignty of the British empire is by parliament; or, at least, as the local colonial sovereignty claimed by the colonists had been held by the colonial Governments ;' there being no positive restriction of the legislature other than the anterior colonial legislative declarations of rights, corresponding to the English Bill of Rights and the Great Charters. There was, therefore, no visible restriction of the power of the legislatures of those States, during the period referred to, more than on that of the ultimately sovereign people, except such as was found in the nature of its political form or mode of existence with the three functions of power separately invested.
$ 481. But though this might be the strict view of the then existing constitution, in these instances, still it could never have been practically held that the power of the legislative body was absolute over all private rights and relations, even where not controlled by the political union with the other States.
The common law of England, having a distinctly personal character as the law of individual rights, and the principles of civil liberty proclaimed in the previous legislative history of the colony had, practically, the force of a written Constitution in restraining legislative discretion, and with greater distinctness than the common law of England in restraining parliament."
* Ante, $ 131.
See the case of Wilkinson v. Leland and others, 2 Peters, 627, where the powers of the legislature of Rhode Island, there then being no other Constitution than the Colonial Charter, were considered.
• Fletcher v. Peck, 6 Cranch, 135; Marshall, C. J., “It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power." Calder v. Bull, 3 Dallas, 387; Mr. Justice Chase, “ I cannot subscribe to the omnipotence of a State legislature or that it is absolute and without control ; although its authority should not be expressly restrained by the Constitution or fundamental law of the State. The people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The pur