520 STATE CONSTITUTIONS. § 482. In each of the several States written Constitutions are now in existence, adopted by the political people of each, having the effect of private as well as of public law. The scope of legislative power in the local Government is, therefore, more definitely determined than during the colonial period; though its extent must still be a question in many cases, since it is impossible to define it completely by any written instrument, even if such instrument should be enlarged to the dimensions of a code. The judiciary of each State in deciding upon the constitutional extent of the legislative power is obliged to refer, in all cases, to previously existing rules, affecting relations of private persons, as guides to the construction and interpretation of the poses for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal or State legislature cannot do without exceeding their authority. There are certain vital principles in our free republican Governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof the Government was established. But an Act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments founded on express compact and on republican principles, must be determined by the nature of the power on which it is founded. A few instances," &c., &c. (Italicised as in Rep.) See also Wilkinson v. Leland, 2 Peters, 656; Dash v. Van Kleeck, 7 Johnson, 477; Goshen v. Stonington, 4 Conn. 225. To the contrary seem to be, Bradde v. Bramfield, 2 Watts and Serg. 285; Harvey v. Thomas, 10 Watts, 66; Senator Verplank in Cochran v. Van Surlay, 20 Wendell, 381. See the opinions compared in E. Fitch Smith's Comm. ch. vii. Wynehamere. The People, 3 Kernan, 391, Comstock, J., "I entertain no doubt that, aside from the special limitations of the Constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are by the Constitution distributed to other departments of the Government. It is only the legislative power' which is vested in the Senate and Assembly. But where the Constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said, (Fletcher v. Peck, supra,) How far the power of giving the law may involve every other power in cases where the Constitution is silent, never has been and perhaps never can be definitely stated.' That very eminent judge felt the difficulty; but the danger was less apparent then than it is now, when theories alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of Government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of Government." POWERS ORIGINAL IN THE STATES. 521 written Constitution itself; and, therefore, in some degree, to recognize another law existing independently of the constituted legislature. It will always be difficult to determine what portion of the law existing at any one particular time is fundamental and constitutional; what part is to be regarded as fixed in the will of the constituting authority and to be judicially supposed to have been taken by it for a principle limiting all republican governments. It is also always necessary to discriminate a "natural and necessary law of nations," applied to the internal existence of states. This, perhaps, is nearly the same as the distinction of laws into laws in the primary and in the secondary senses;1 a law or usage being considered to have the character of natural or necessary law of nations, (whether affecting private persons or states,) where it has always been judicially viewed as the statement of a mode of action or a recognition of a condition of things; as, for example, the principle alluded to by Holt, of a man's not being ever a judge in his own cause.2 Being private as well as public law, the various constitutional provisions which may affect freedom or its contraries in the limited sense herein particularly considered, will be properly comprehended in a historical summary of the legislation of the several States affecting this topic. § 483. It has been herein before supposed that by the Revolution a certain national or general authority became transferred from the king and parliament of England to the integral people of the United States. This is taken to be a necessary assumption from the recognition of the present Constitution and the events which caused that recognition. But the same reasoning led to the conclusion that whatever powers the present Constitution declares to be vested in the several States, were in fact vested in them by the Revolution, or rendered by it entirely independent and sovereign, and were not derived from that Constitution. 3 According to this view there was no longer a national central power, maintaining within each State the common law of rights 1 Ante, §§ 48, 49. 'Ante, p. 127. 'Ante, § 469. 522 POWER OVER PERSONAL CONDITION. and privileges of persons of European or Caucasian race, as it had been sustained under the British imperial power; except as it might be sustained internationally or quasi-internationally between the States, operating as public and private law. And, if there had been any national law affecting the condition of other persons to whom the common law of England did not apply as a personal law, it also ceased to have a national extent on the occurrence of the same events; or had, thereafter, only such effect as was derived from the international provisions of the Constitution. Hence, whether there would have been a common law in each State which, in the absence of a State Constitution, could have been judicially recognized as a check on the legislature, would be, in each State, before and after the adoption of a State Constitution, a question of the same sort as that of the effect of common law in England against the power of parliament. § 484. But though the common law or every national law of the rights of persons may have ceased to have any continuing basis in a national authority, it is plain that, on the principle of the continuous existence of laws, the distinction of two races and of two personal laws applying to those races would continue to be recognized by the judicial tribunals of each State, in the same degree as before, until changed by the thereafter several and independent legislative power thereof; and that the laws which before were received in the State, as personal laws applying to aliens and as private international law, would continue to be recognized; until changed by the State for its own limits, or by the national power held by the general Government over this class of persons in all the States. § 485. The fourth of the Articles of the Confederation of November 17, 1777, may have been intended to secure in the several States some international allowance of rights and obligations which had before had a personal and national extent in all the colonies as parts of the British empire. But the effect of this Article on personal condition does not seem to have ever been made a subject of judicial inquiry during the existence of the Confederation. The Article may be thought to have the THE POWER IN THE STATES. 523 form of private law, that is, law which of itself maintains the existence of legal rights in private persons. But since the enacting power was not represented by a general administrative Government, organized with an investiture of the three functions of sovereignty for the purpose of applying municipal (internal) law, the rights declared by that Article had no national guarantee available for the private persons by whom they might have been claimed ; and the Article must have depended on the several juridical will of each State for its coercive effect, having in that respect only the force of a public international compact. It would appear, therefore, that until the formation of the present Constitution of the United States the only restriction on the legislative power of the several States, in reference to persons domiciled in other States of the Union, would (irrespectively of restrictions in the Constitutions of these States themselves) have been these treaty provisions in the Articles of Confederation, and the undetermined force of common law to preserve itself, in its own courts, against the action of a legislating Government. § 486. The sum of all sovereign powers to affect private persons in any part of the United States may, or may not, have been exercised, during the Revolutionary period or during the Confederation, in a different manner, or according to a somewhat different distribution of those powers, from that existing under the present Constitution. But, for the present purpose, it is enough to know that the powers vested in the Continental Congress or in the Congress of the Confederation were certainly not greater, in any respect, than those now vested in the present national Government, and did not, in legislation, act so directly on private persons within the limits of the several States. No change, therefore, could have been made in the status or condition of private persons within the several States by the national legislation of the United States anterior to the present national Constitution. § 487. Since the provisions of the Constitution of the United States which create or maintain relations of private persons do not determine the possession of individual rights, except inter 524 POWER OVER PERSONAL CONDITION. nationally or quasi-internationally, and the powers of the national Government over persons and things within the limits of the several States can determine only certain relative rights not primarily entering into the relations of legal status or condition,' the laws affecting individual rights and relations incident to conditions of freedom or its contraries within the States must 1 Ante, p. 483. The expression "freedom and its opposites," has been used repeatedly in previous chapters. A note in Coleridge's Church and State, p. 24, has suggested that the term contrary should have been employed instead of opposite. "Let me call attention to the essential difference between opposite' and 'contrary.' Opposite powers are always of the same kind, and tend to union, either by equipoise or by a common product. Thus the and poles of the magnet, thus positive and negative electricity are opposites, sweet and bitter are contraries. The feminine character is opposed to the masculine: but the effeminate is its contrary. Even so in the present instance, [the topic which he here considers,] the interest of permanence is opposed to that of progressiveness; but so far from being contrary interests, they, like the magnetic forces, suppose and require each other." In some recent defences of negro slavery the argument is based on the idea that freedom and slavery are not contraries, but opposites; or that they "suppose and require each other." A prominent example is found in the speech of Senator Hammond, of South Carolina, in the recent debates on the Kansas question, in the U. S. Senate, March 4, 1858. "In all social systems there must be a class to do the menial duties, to perform the drudgery of life. That is, a class requiring but a low order of intellect and but little skill. Its requisites are vigor, docility, fidelity. Such a class you must have, or you would not have that other class which leads progress, civilization, and refinement. It constitutes the very mud-sill of society and of political government; and you might as well attempt to build a house in the air, as to build either the one or the other, except on this mud-sill. Fortunately for the South, she found a race adapted to that purpose to her hand. A race inferior to her own, but eminently qualified in temper, in vigor, in docility, in capacity to stand the climate, to answer all her purposes. We use them for our purpose, and call them slaves. We found them slaves by the common consent of mankind,' which, according to Cicero, 'lex nature est,' the highest proof of what is Nature's law. We are old-fashioned at the South yet; it is a word discarded now by ears polite.' I will not characterize that class at the North with that term; but you have it; it is there, it is everywhere, it is eternal. 6 "The Senator from New York said, yesterday, that the whole world had abolished slavery. Aye, the name, but not the thing; all the powers of the earth cannot abolish that. God only can do it when he repeals the fiat, 'the poor ye always have with you;" for the man who lives by daily labor, and scarcely lives at that, and who has to put out his labor in the market, and take the best he can get for it; in short, your whole hireling class of manual laborers and 'operatives,' as you call them, are essentially slaves. The difference between us is, that our slaves are hired for life and well compensated; there is no starvation, no begging, no want of employment, among our people, and not too much employment either. Yours are hired by the day, not cared for, and scantily compensated, which may be proved in the most painful manner, at any hour, in any street in any of your large towns. Why, you meet more beggars in one day, in any single street of the city of New York, than you would meet in a lifetime in the whole South. We do not think that whites should be slaves either by law or necessity. Our slaves are black, of another and inferior race. The status in which we have placed them is an elevation. They are elevated from the condition in which God first created them, by being made our slaves. None of that race on the whole face of the globe can be compared with the slaves of the South. They are happy, content, unaspiring, and utterly incapable, from intellectual weakness, ever to give us any trouble by their aspirations. Yours are white, of your own race; you are brothers |