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516 EXTENT OF THE STATE POWER.

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.1 POWER OF STATE GOVERNMENTS. 517 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.1

1 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 assumed 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 jurisprudence. 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, particularly 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 propositions 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.

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.

518 POWER OF STATE GOVEBNMENTS.

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.1 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 sovereignty 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 a 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

1 Ante, p. 424.

s Ante, § 363. 2 Curtis' Hist. Cons. 8. Wynehamer agd. The People, 3 Kemui, 391. 1 Ante, § 131.

POWER OF STATE GOVERNMENTS. 519

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;1 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.3

§ 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,4 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, §§ 129, 130.

* See the case of Wilkinson t. 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.

* Ante, § 137.

6 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 purposes 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 aulturrity. 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, 666; Daah r. Van Kleeck, 7 Johnson, 477; Goshen v. Stonington, 4 Conn. 225.

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

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. Wynehamer c. 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."

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