TERRITORIAL JURISDICTION.

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§ 347. The geographical dominion of any possessor of sovereign power, is, in jurisprudence, determined in the same Amanner as the seat or investiture of that power; that is, by the actual exercise of that power, in reference to certain territory. The exercise of such power being essential to the existence of law, regarded as the rule proceeding from the holder of that power, its legitimacy is a political question and not a legal one,

Blackstone, App. passim; 1 Calhoun's W. p. 190; Baldwin's Const. Views, pp. 75-81. In connection with this doctrine, it is maintained by some, that, by the adoption of the Constitution a perpetual grant, cession, or absolute transfer of a portion of the sovereign powers of each State was made, and that the powers now held by the Government of the U. S. are possessed, as of inherent right, either by that Government or by the people of the U. S. regarded as one political body; the residue of power being held by each State severally, and as before. Apparently so in Dred Scott's case, 19 Howard's R. 441, opinion of the court; see also, I Curtis' Hist. of the Const. 331.

Under another theory, the States or the people of the several States are regarded as still continuing individually sovereign states in the fullest sense; and as continuously and presently delegating a portion of the sovereign power, still inherently possessed by them, to a jointly deputed government adapted to certain common interests and objects. Under this theory the Constitution is regarded as the written evidence of a treaty, compact, contract, league, federative union, &c., between sovereigns each severally having power to judge of the nature and obligation of that contract, and to terminate its duration and effect upon itself according to its several autonomic judg ment; limited only by such principles as may limit the action of all sovereign states or nations. See, especially, Calhoun's Works, vol. i. p. 161, iii. 149. Resolutions and Speech in Senate, Feb. 26, 1833, in vol. ii. 262, and in the same vol. p. 34; Report of Committee in S. C. Convention, Nov. 24, 1832. Baldwin's Const. Views, passim.

This theory of a league or federative union may have modifications, under different views of the nature or obligation of the contract and grant; all, with greater or less consistency, agreeing in ultimately placing an entire national sovereignty in the people of each State, severally. Compare debate in U. S. Senate on Mr. Foot's resolution, in 1830; 4 Elliott's Debates, p. 315-330; 3 Webster's Works, p. 248, 270; Story's Comm. § 321 and the references; De Tocqueville's Democracy, &c., part 1, ch. viii.; 1 Tucker's Bl. Comm. App. pp. 65, 175, 187.

Another theory, the extreme opposite of that last stated, appears to have had its advocates. This regards the United States or the people of the United States, as a pre-existing political unity, independently of the Constitution, holding the entirety of ultimate sovereign power, and supposes the States or the several people of those States to hold their several powers by the will or consent of the whole people or nation, or by public law emanating from that integral possessor of undivided sovereign power, and expressed in the Constitution. See Dane's Abridgment, § 2, p. 10, &c. Judge Story, citing this authority, seems to have inclined to the same view, though contenting himself with opposing the doctrine that the States are severally sovereign; Story's Comm. B. III. c. 3, and the copious references to leading opinions.

These two theories have this point of resemblance, that the present 'location of the ultimate sovereignty is, by each, considered the same which had existed from the first moment of separation from Great Britain, viz., originally, and now, ultimately, in the nation; or originally, and now, ultimately, in the States severally. (1 Calhoun's Works, 162-165, calling the Constitution a change of organization only.)

Further, these two theories would be equally supported by the doctrine assumed by many as an axiom, that sovereign power, to be such, must of necessity be ultimately found concentrated or centralized in some one political unity; either a single person, or a collection of persons acting as one. (1 Calhoun's Works, p. 122, 140.)

except in connection with public international law, which is law only in an imperfect sense.1

The colonies which formed the States of the American republic at the period of separation from the British empire were thirteen; viz., Virginia, Maryland, Massachusetts, New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, North and South Carolina, and Georgia. At that period the boundaries of some of these States under their colonial patents and charters were unsettled, and the claims under the patents, in many instances, conflicting. Under the political relations of the States bearing these names, these claims have been adjusted and their boundaries settled as they are at present. Portions of Virginia, New York, and Massachusetts have, with the consent of those States and of the national government, been organized as the several States, Kentucky, Vermont, and Maine; with like investiture in the political people of each as in the people of the other States, of a several possession of sovereign powers for local or State purposes, and of other sovereign powers in common with the people of the original States for national purposes. The remainder of territory not included within the present limits of the claimant States was ceded by them to the United States or the people thereof, with all rights of sovereignty over the same, though in certain cases with stipulations, the effect of which will be hereafter noticed. This territory consisted of all that district west of the thirteen original States, and, exclusive of Kentucky, as far as the Mississippi river and the eastern limits of the French province of Louisiana, bounded on the north by the British possessions lying on the St. Lawrence and the great lakes, and on the south by the Floridas, then belonging to Spain.

§ 348. In addition to this territory ceded by the several States, the United States have acquired by treaty or conquest, legalized, so far as treaties and conquests can be said to be legalized, by international public law-the territories completing the geographical dominion now known to the rest of the world as that

1 Luther v. Borden, 7 Howard, 56.

SOVEREIGNTY IN THE TERRITORIES.

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If the United States. Whatever doubt may have originally xisted as to the power of the Government created by the Contitution to make these acquisitions for the United States, their ›resent title or sovereignty in those territories must be taken to be legal and perfect.

It may be assumed that under that division of the sum of sovereign power which is made in the Constitution, every several State or the people of any several State are precluded from that external exercise of political power by which, under public international law, territory is acquired or political dominion geographically extended. The power then, which must still exist, necessarily belongs to the people of the United States or the integral nation. Hence, on the acquisition of territory by.the national Government, it was the dominion of the integral people of the United States, not that of the several States, which was extended; having the same effect as in the territory ceded by the original States. This dominion was, of necessity, by the exercise of the sum of sovereign powers; that is, both the powers vested in the national Government by the Constitution, which have like extent throughout the entire domain of the United States, and the powers which, in a State, are exercised by its several people.

§ 349. In the territory thus held by the United States, whether ceded by the older States or otherwise acquired, this absolute or undivided sovereignty has existed until by the will of its possessors-the people of the United States, (indicated by their only known instrument, the national Government,) a political people has been recognized in certain districts of that territory, and that people has, as a corporate political body, consented to assume and have been declared by Congress to hold, in and for a particular district, the sovereignty held by the people of a several State under the Constitution; that is, a certain share of sovereign power to be exercised severally within the limits of such district, thereafter to be known as a State, and the residue of sovereign powers to be exercised in union with the other States. By which act the political people of these districts has become added to the constituting people of the

United States, that is, to those from whom the Constitution c the United States derives its vitality. Hence the admission c new States, formed within the territory of the United States. may, from the moment of such admission, be regarded as the autonomic development of sovereignty, and not an act taking place under law in the ordinary sense.'

§ 350. Within the entire national domain of the United States sovereign power is exercised either together by the politi cal people of a State, being one of the United States, and the integral people of the United States, or else by the people of the United States, solely; and no law can be recognized within that domain which does not derive its authority from one of these

sources.

The "people" of the United States and of the several States, though claiming to hold their collective powers by a right antecedent to all positive law, being a body existing through custom and prescription, are always (in the legal point of view) distinct from any collection of persons, however large, even though of citizens2 and electors, when acting in any other

This formation and admission of a State of the United States is the action of twe parties, two political persons, exercising certain powers as sovereign. It is an autonomic contract or agreement, above positive law, (law in the ordinary sense,) not under it.

The will of one, the new State, is that of those who, in a corporate capacity or as one political person, would become the political people of the new State at the moment of its existence. A method for ascertaining their corporate will may have been indicated under some law for the exercise of the electoral franchise by the individual constituents. Its requisitions may have been complied with. But (if it is admitted that the will of this people and the will of the majority of the individual constituents are identical) the result (a vote) may or may not accord with the will of this corporate people. For this people, or a majority of them, may have declined to indicate their will under the law.

To all persons who do not represent these two parties in their autonomic action, the result under the law is conclusive. Such persons are bound to find the will of the corporate people in the resulting vote, and to recognize no other indication of that will.

But the other sovereign party-the United States or those who represent them in this autonomic action-Congress, (and the less so if they made the law,) are not thus bound under law. They may regard better evidence of the will of the party they are compacting with; if any there be. For here they are autonomic.

That evidence might be found in criminal acts; in acts of violence, wrong and outrage. But if it should be more indicative of the will of the other party, (the people of the future State,) than the vote under law, Congress may with perfect consistency disregard the latter.

Dred Scott's case, 19 Howard's R., 404. Opinion of the Court, "The words 'people of the United States' and citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sov

THE CONSTITUTING PEOPLE.

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mode than those known to these Constitutions and the laws and usages which have been established or confirmed under them, even though those persons should be a majority of the electors or the whole mass of the electors. The present powers of this "people" are vested by political changes, established by autonomic force, and legitimated only by their peaceful and uninterrupted continuance. The rights of this "people" are not, in any legal sense, dependent on the theory of natural society or the consent of individuals as natural persons. All within the actual geographical limits occupied or held by them and the nation which they claim to represent, are each, however, free in legal condition, absolutely subject to their authority; without regard to any assent or acquiescence, express or implied."

ereign people' and every citizen is one of this people, and a constituent member of this Sovereignty." The term citizen may unquestionably be properly thus employed, because this is one of the senses in which it is vernacularly used. But it is equally true that it may be properly employed where it cannot have this signification.

In the same opinion it was, however, held that the individuals constituting this "sovereign people "- -"the political body," &c., are not known by their possession of the elective franchise. For after concluding that a negro is not a citizen of the United States, it is said, p. 422, “Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote, * yet they are

citizens."

The various meanings in which the term citizen may be used, and in which, it is herein held, it is used in the Constitution of the U. S., will be considered in some of the succeeding chapters.

As matter of law, strictly defined, this is a necessary conclusion; and, hence, that a Constitution cannot legally be changed, except in such manner as may have been in the same Constitution provided. But, the possession of sovereignty being a fact, and not the result of law, it is evident that a new Constitution may, at any time, become operative, independently of the provisions of the former. However, the establishment of such a Constitution would, strictly speaking, be a revolutionary act-an act above all law.

'Luther v. Borden, 7 Howard, U. S. Rep. Elisha Williams in report of N. Y. Const. Convention of 1821, p. 248. Webster's Werks, VI., 217; Calhoun's Essay, 1 Works, pp. 169, 188.

Story's Comm., §§ 327-330.

Memoirs of F. Perthes, vol. II, p. 285. (Liberalism and the Political Constitutions of Germany, 1822-1825.) "The constitutions desired were rather to be the offspring of that political understanding which is always and everywhere the same; accordingly they were not to presuppose the existence of any established authority, and were to be for all nations essentially alike. To liberalism of this sort, Perthes was a decided opponent. He wrote: 'Men must be governed, and they wish it too; but as they can be governed only by men, every government must depend on some human accessory, be it a seneschal or a scullion, a major's wig or a corporal's staff. It is useless to fret and kick against the pricks; and though you were to set up among us a political idol from France or America, it would only be a new Baal, that would burst when his time came.' Again, you consider the exclusive majesty of the law, a phrase of noble and profound import. Yes, indeed, it sounds fine in the ears of our age, but profound