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§ 435. The power over civil liberty and the legal possession of the rights of private persons being, to this degree, within the powers of the States severally, they, by their own local law, determine within their own territory even the personal applica tion of the constitutional reservations in favor of "the people" against the powers of the national Government; that is, it would seem that in each State it remains for the State to determine who constitute the individuals of that "people" who, by legal capacity for the rights referred to in those provisions, are not to be prohibited by the national Government "from assembling peaceably for the redress of grievances," whose right to keep and bear arms shall not be infringed,” who are to be "secure in their persons, houses, and possessions against unreasonable search or seizure." For since the legal unrea sonableness of a search or seizure depends upon the legal nature of the rights of personal liberty, personal security, and private property, (where distinctions can be made between natural persons according to the degree in which they possess those rights,) if the States determine the legal capacity of persons, that determination will operate in reference to the judicial and executive powers of the national Government, when they act upon the same persons. And even supposing that no law of Congress had been made, or could be made, to affect relations founded on such personal distinctions, yet it may be supposed that the constitutional obligation of the United States, to maintain by force the domestic tranquillity of each State, might give occasion for the recognition of those distinctions by the national executive and judiciary.

§ 436. During the connection of the American colonies with the British empire, as before shown, the common law rights of Englishmen were established, by that law, for the white inhab itants, at least, of each colony, by the imperial as well as the local sovereignty; and the same law, as personal to those colo

1 Art. I., II., IV., of Amendments.

Art. IV. sec. 4. “The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature or of the executive, (when the legislature cannot be convened,) against domestic violence."

STATUS FIXED BY THE STATES.

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nists, had a territorial extent and recognition throughout the colonies as one national dominion, irrespectively of the local legislature, and that personal law or those personal rights were guaranteed by the united power of the empire. But there being nothing in the Constitution, except as above stated, to limit the powers of the States in affecting or altering "common law rights" by their municipal (internal) laws, it seems that the rights or liberties of private persons have no longer the same basis in the undivided sovereignty of a nation, as formerly; and, therefore, not the same security for their permanence in a State of the Union as formerly in the colony; the power to affect those liberties having passed into the States as divided into distinct political bodies of local jurisdiction, irrespectively of the sovereignty existing in the States united, except where controlled by the provisions of a quasi-international character.

Whether civil or social liberty has, in consequence of this political change, a better or a worse foundation in the present United States than in the former colonies of Great Britain, is an inquiry which is not embraced in that legal view of the subject which is herein taken.

CHAPTER XV.

OF THE NATIONAL MUNICIPAL LAW OF THE UNITED STATESTHE SUBJECT CONTINUED OF THE PERSONS WHO MAY APPLY THAT LAW BY THE EXERCISE OF JUDICIAL POWER.

§ 437. Under every form of government the investiture of the power to apply the law is a circumstance to be considered in determining those conditions of private persons which may be established under law. It may here be assumed that, in a republican government, this power should always be distinguished, in its exercise, from the power to promulgate lawsthe legislative or juridical power. The coercive application of the laws of a country is by the instrumentality of ministerial or administrative functionaries co-operating with the judicial. It may be difficult to distinguish, in every instance, between the persons so co-operating, as being either administrative or judicial officers. But in a government wherein the three. functions of sovereign power are separately invested, the judicial function becomes the test of the administrative or ministerial.'

§ 438. Whatever may be the intended operation of the national municipal law of the United States in causing rights or obligations, incident to conditions of freedom or its contraries, in

1 But legislative assemblies are considered as holding the judicial function to a certain extent, (1 Peters' R. 668,) with the powers incident to courts of law; in the exercise of which their judgment is final, whether the occasion for it arose in the course of the legislative or of some other function. Cushing's Law of Legislative Assemblies, Part III. ch. iii, iv. In 2 Kent's Comm. 30, note, the author seems to think that the American legislative bodies are (in the absence of any constitutional provisions) as uncontrollable in this respect as the English houses of parliament.

OF THE JUDICIAL POWER.

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private persons, the investiture of the judicial function, by which its application as a coercive rule is to be determined, is an important incident of those conditions.

In the previous chapter it was necessary to consider the relative extent of the judicial functions derived from the United States and from the several States, in applying the Constitution operating as the supreme public law and the evidence of the location of sovereign juridical power. The question, of jurisdiction under the national municipal law, which is here presented, is also a question of the public law; although here regarded, mainly, as one of private law; that is, one in reference to the relations of private persons.

§ 439. This question, respecting the exercise of the judicial function in carrying into effect the national municipal law, arises from the fact that, within the limits of each State of the Union, the sum of sovereign power over the territory of such State and all persons and things therein is divided between the particular State and the national Government of the United States in their national capacity; and that, since the powers held by each are sovereign in their nature, the governmental organization of each must include tribunals for the execution of the law derived from the powers so held by it.

Now, though the tribunals thus constituted by these coordinate possessors of sovereignty have jurisdiction over the same territory and the same persons, the tribunals deriving their authority from one of them will not, necessarily, have the power to apply the law proceeding from the juridical powers held by the other.

§ 440. Since the three functions of political power must be united in the hands of its ultimate possessor, (if it is sovereign political power,) it is evident that, in order that the powers of each of these two political entities or personalities may be actually sovereign and independent, the judicial function, for the administration of the law proceeding from either, must be exercised by its own instruments. By the concurrence indeed of the two political sources of law, the tribunals ap1 Ante, p. 424.

1

pointed by either one might administer the law derived from the legislative or juridical power of the other; in which case the judicial function of each would merely be exercised by the same persons; while still having an essentially independent political existence, or being still derived from different political

sources.

§ 441. If this question of the exercise of judicial power in applying the national municipal law be thus made with reference to the jurisdiction of the State courts, it becomes equally a question of the local municipal law of those States, the subject of the next chapter; as it is here a question of the national law.

§ 442. The law, whose judicial application is to be here considered, includes that which has an international effect between the States, (being herein distinguished from other portions of the national law by the character of the persons to whom it applies,) and which is to be separately considered, in succeeding chapters, under the name of the domestic international law of the United States; or, at least, it includes that portion of that international law which has a quasi-international effect between the States, in being derived from the Constitution and identified with the national municipal law in its authority.1

443. In the sixth Article of the Constitution of the United States it is declared, that "this Constitution and the laws of Congress made in accordance with it shall be the supreme law of the land, and all State courts shall be bound by it, any thing in the laws of the States to the contrary notwithstanding." And since the several States, or the people of the States, who within their several State limits possess in severalty certain sovereign powers, united in establishing the Constitution of the United States and in authorizing Congress to legislate, for certain purposes, with national extent, it might be argued, from this fact alone, that the national municipal law is the legislative will of each several possessor of State power. It would seem, therefore, that the judicial tribunals under that State power would have jurisdic

1 Ante, § 402, 1.

21 Calhoun's Works, p. 252.