§ 351. The power held by the "people" of the several and United States is of the highest class of power known to human laws. It is the same power as that which formerly resided, as to the same territory, in the colonial Governments and the parliament and king of Great Britain, and is absolute as the supreme national power in any community. It is power superior to all law; unless it be those principles which have been called the law of nature, natural justice, natural reason, &c., and even practically considered, superior to those principles; since it is amenable to no tribunal for disregarding them, except as they may be vindicated in public international law. It is of the same nature as that of the English parliament, when it is said of it that it can do any thing, not absolutely impossible, and superior to it, if that of parliament be controlled by common law; not being constitutional power, but power above the constitution.

If any rights can be said to be vested in individual members of the nation independently of political sovereignty, whether they be the same as those held by private persons before the Revolution or not, they rest as legal rights, within the jurisdiction. of this "people," on their acknowledgment of them as their highest guarantee or sanction.

"None on earth, neither people nor monarch, neither all, many, few, or one, have a right to do what they like. None, not even unanimous millions, have a right to do what is unjust.” Natural reason, right, or equity is unalterable. But if it be violated here, by this sovereign will, there is no power known to the law, that can resist its decree, nor any judicial tribunal that can overrule its commands.2

it is not: it is nothing in fact, but empty sound, for majesty of the law without authority of the lawgiver is mere nonsense. Majesty must have a body, monarchical or republicar, as you please, but a body; and law presupposes an authority not made, but previously existing: which is precisely what our whimsical age is ever denying in one form or another.'"

'Lieber, Pol. Eth., B. II., § 133.

Harvey and others v. Decker and Hopkins, 18 Walker's Mississippi R.. 36, and Wheeler's Law of Slavery, 343. Otis' Rights of the Col., 1 Am. Tracts, p. 12. J. Q. Adams in an oration July 4th, 1831, (1 Story's Comm., p. 145, n.,) denied that "an absolute, uncontrollable, irresistible and despotic power" is essential to sovereignty, or that the doctrine was admissible in the jurisprudence of the United States. The question is nearly the same with that of a natural law in general jurisprudence. See ante, §§ 3-8, and of the power of parliament over common law, ante, § 131.

CHAPTER XII.

CONDITIONS OF

FREEDOM AND BONDAGE

CONSIDERED WITH REFERENCE TO THE PUBLIC LAW OF THE UNITED STATES.

§ 352. It was observed in the previous chapter that in every state or nation there must be some natural persons who are to be considered as actually holding, using or enjoying the power or right of the state, or of society, to create rules of action for the individual members of the state or nation, and some whose liberty of action is to be regarded as being determined by those rules. This right of action in the first class of persons, or the fact of their holding this power, is said to be determined by the public law of the state; but that which is here called law has rather the character of a law in the secondary sense, or of a mode of action, than of a law in the primary sense, or that of a rule; since the fact is the judicially recognized origin of all rules of action having coercive force upon private individuals. This right of action in this class of persons in a state, though it may in a certain sense be called a right or liberty, is then, strictly speaking, above law; since it is presupposed in the judicial recognition of every coercive rule, and referred to as being the source of its authority. The action which is contemplated by this so-called public law, being political or connected with the very existence of the state, the right of action may be called political liberty. That liberty of action which is determined by the law proceeding from those who possess this political liberty, since it exists in social relations, or the ordinary relations of

• Ante, § 336.

private persons under a civil state, may be called social or civil liberty; and the law which creates this liberty may be more properly called private than public law, since it affects persons in private relations, or establishes relations between persons having a private capacity or condition.'

§ 353. Although that which is here denominated political liberty must, necessarily, in every state be vested in or enjoyed by some determinate persons, there may be great differences of fact and law between various states in the distribution of that right or power of action. In some states it may be found to be possessed by a proportionately large number of those who also, by the private law, enjoy civil liberties. But, the larger the proportionate number of those individuals who possess this right or power, the less probable does it become that its possession by any one of those individuals should be independent of any external will, or should be a right above law; and the more probable will it be that the right or power, here called political liberty, will acquire a legal character, like that of the right called civil liberty, by being dependent on the will of a person, or number of persons, distinct from the individual holder of the right. Where a large number of persons are equal, or nearly equal, in their possession of this right, that equality can hardly be otherwise manifested than by accepting the will of the whole body, or of certain parts or proportions of the whole number of individuals, as the expression of the supreme or sovereign will. In that case the possession of this right by any one individual is founded on a will superior to and distinct from his own; and

1 Rogron, Code Civil Expliqué.--Lib. I., tit. i. c. i. "Les droits de l'homme en societé sont politiques ou civils. Les droits politiques sont les droits dont les citoyens jouissent par rapport au gouvernement, et qui leur permettent de participier à la puissance publique; savoir, de voter dans les assemblées electorales, d'être elûs et admissibles à tous les emplois, à toutes les dignités, etc. Les droits civils, sont les droits on certains advantages dont les citoyens jouissent entre eux et qui leur sont garantis par la loi civile. Les principaux sont le droit de puissance paternelle, ou maritale, tous les droits de famille, ceux d'être nommé tuteur, de succéder, de disposer de ses biens et d'en recevoir par donation entre vifs et par testament. Les droits civils se trouvent particulièrement enumérés dans l'article 25."

Lord John Russel, in his Essay on the History of the English Government, distinguishes civil, personal, and political liberty. This distinction might be proper where the existence of a class of persons, not enjoying personal liberty, is recognized by private law.

INVESTITURE OF SOVEREIGNTY.

417

therefore, as to him, or regarded as the right of a natural person, it is the result of a law in the strict sense; although the possession of the power by the collective mass of which he forms a part is anterior to all law in the strict sense. In this instance political liberty is a legal right of a private person; though existing by public law.

In other states, that right of action, which is here called political liberty, may be so enjoyed by a few or by one, that those few or that one must be regarded as individually identified with the state, or the supreme source of law, independently of any other person or persons; and political liberty, not being exercised by any who are individually subject to the state, or to those who possess its power, must be said to have no legal existence; that is, though the right must exist somewhere, it is not created by law in the primary sense. The possession of the right is said to be ascertained by public law, but by law only in the sense of the statement of a fact or condition.1

§ 354. There is then a distinction in the mode of existence of political states which is more material, in determining the nature of freedom in those states, than any derived from those differences between forms of government which distinguish them as republican, monarchical, aristocratic, democratic states. This distinction is founded on a difference in the location of the ultimate sovereign power; and by it all states can be distinguished into two classes, viz. :

First Those wherein the ultimate sovereign power is by fact and law vested in the nation at large, or in individuals of that nation, who are at the same time politically and legally, as individuals, the subjects of that power.

Second: Those wherein that power is by fact and law vested in a single individual, or in a limited number of persons, distinct in political and legal relations from the body of the nation, and not individually subject to any other law, in the strict sense, than that proceeding from themselves.2

'In jurisprudence, the location of sovereign power is a question of fact. In an ethical view, the fact is according to the moral judgment of the observer. Compare the method of reasoning in Lieber's Political Ethics, B. 2, ch. 6.

2 Lieber's Pol. Eth., vol. 1, p. 404, note citing Arist. Pol. iii. 7, 1 Ethics, viii. 12,

§ 355. The name republic or commonwealth, which has been applied without much discrimination to many very various forms of a state, can with propriety be given only to states of the first class above described. In those of the second class, the state power, or the sovereignty, has a private character, the nature of a private right; though above all rights conferred by the law in its ordinary sense. If by the constitution of a state is meant merely the legal recognition of the existing investiture of sovereignty, a state of either class may be said to have a constitution; but in those of the second it will be only equivalent to the simple fact of the possession of sovereign power. In the first class of states only, it acquires the character of a law; since each individual, participating in the possession of supreme power, or enjoying this political liberty, holds that political right by the expressed will of an integral sovereign personality, to which he is subject. In such states, therefore, there is a true law, coexistent with the fact of the investment of sover

vol. II. p.64, A. B.Casaubon. M. De Tracy's commentary on Montesquieu's Spirit of Laws; Phila. 1811, page 12: "Confining myself, then, wholly to the fundamental principles of civil society, disregarding the difference of forms, neither censuring nor approving any, I will divide all governments into two classes, one of these I will denominate national, in which social rights are common to all (nationaux ou de droit commun); the other special, establishing or recognizing particular or unequal rights.

"In whatever manner governments may be organized, I shall place in the first class all those which recognize the principle, that all rights and power originate in, reside in, and belong to, the entire body of the people or nation; and that none exists but what is derived from and exercised by the nation; those, in short, which explicitly and without reserve maintain the maxim expressed in the parliament of Paris, in the month of October, 1788, by one of its members, namely, .. Magistrates, as magistrates, have only duties to perform (n'ont que des devoirs); citizens alone have rights (les citoyens seuls ont les droits); understanding by the term magistrate, any person whatever who is invested with a public function.

*

(p. 13) "On the other hand, I call all those special governments, whatever may be their forms, where any other sources of power or rights, than the general rule of the nation, are admitted as legitimate; such as divine authority, conquest, birth in a particular place or tribe, mutual articles of agreement, a social compact, manifest or tacit, where the parties enter into stipulations like powers foreign to each other," &c. See this distinction adopted by Lanjuinais' Constitutions, tom. 1, pp. 13, 14.

See also Sir William Temple's Essay on Government, p. 2, and a somewhat similar distinction by Grotius, B. et P., L. i., 3, 12,L. ii. 6, 3, between regna patrimonialia and usufructualia; rejected by Heineccius, J. Nat. et Gen., L. 2, c. 7, § 147.

'P. A. Jay, in Report N. Y. Const. Conven. of 1821, p. 200.

Acts of Vienna Congress; June, 1820, art. 57. "As the German Confederacy, with the exception of the free cities, is composed of sovereign princes, so must in consequence of this fundamental idea the collected power of the state remain united in the