existing fact, to be recognized judicially as the basis of public and private law.

Second, it is direct legislation, by the exercise of the sovereign powers held by the people of the United States as a political unity, and is either public or private law.

The public law is that which constitutes the Government of the United States,-creating thereby a source of private law; and those provisions which create relations in which the several States or the Government of the United States are, in their political capacity, the subjects of rights or obligations.

The private law of the Constitution is contained in those provisions which create relations in which private persons are the subjects of rights or obligations anterior to and independent of the legislation and powers of the national Government, and render those relations independent of the powers held by the several States. Therefore, although the subject of examination, the condition of persons in respect to freedom and its opposites, is a department of private relations, and belongs strictly to private municipal law, as before defined, the necessary subjection of that law to the power of the state renders a preliminary reference to the public law of the Constitution necessary, to determine the sources from which laws affecting those relations may originate, and the reciprocal limitations or restrictions on those sources of law, in respect to their extent or jurisdiction, as an essential element of the condition of persons subject to the law proceeding from them.

§ 360. Whatever may be the true doctrine of the essential political existence of the people of the United States, it must be taken as the first principle of public law (the law in the

'Mr. Calhoun, 1 Works, p. 191, &c.,-distinguishing between the constitutionmaking and the law-making powers "- -appears to have held that the Constitution of the U. S. has nothing of the character or operation of private law, or that it does not maintain, of its own force, any rights or obligations of private persons. Mr. Benton, in his Examination of the Dred Scott case, p. 14, &c.,-holding that the Constitution does not "act of itself anywhere, and that it required an act of Congress to put it into operation before it had effect anywhere,"-appears to hold the same doctrine. Mr. Benton cites Webster and Clay as being of the same opinion, and then shows that Mr. Calhoun held the contrary, in maintaining that, by the operation of the Constitution alone, slavery exists in all the territories of the U. S.

2

Ante, § 25.

primary sense), proceeding from the rightful possessors of sovereignty that by the written Constitution they have created a Government, which, in the powers given it, is to be considered rightfully authoritative within the territorial limits of the dominion of that people. From an examination of the Constitution, in relation to this its effect, it is evident that the Government thus constituted or created is not the possessor of the sovereignty or supreme powers, which it may exercise, in consequence of an absolute political transfer of those powers from the people. This is shown by the fact that this Government is established in three distinctly organized parts, each holding one of the necessary and natural means or functions by which supreme powers are exercised: but neither, in itself alone, constituting supreme or sovereign power; which, to be such, must be uncontrollable not only in its ultimate effect, but also in the mode of its action, The legislative, judicial and executive functions, though each indispensable to the independent exercise of political power, and commonly designated as sovereign powers, are not such, properly speaking; but are the modes in which supreme and sovereign power is manifested. But since these, combined in their action, produce the effects of independent and absolute supremacy, the powers vested in the Government established by the Constitution, are, in their exercise and in the view of public law, supreme and of the nature of sovereign national power wherever existing; and they therefore act directly, and without reference to any other power, on all persons and things within their determined jurisdiction or territorial dominion.'

§ 361. These powers are not, in legal consideration at least, the less supreme or sovereign from being separated, in their exercise, from the other general powers of a national sovereignty, vested in the several states of the Union ; though in practice

1 1 Calhoun's W., p. 163,-that the Government acts as the Government of one nation, whatever theory may be adopted of the location of sovereign power.

The Constitution of the U. S. is part of the whole law prevailing in any one State. And the Government of the U. S. and that of the State are equals and co-ordinates therein-cach representing sovereign power. (1 Calhoun's W., p. 167.) But this is perfectly consistent with a national possession of those powers which have been

it may sometimes be otherwise. The Constitution does not, in making this division between the national Government and the several States, define the extent or full sum of all the powers belonging of right to a sovereign state or nation; or all the power which such a state may rightfully exercise in restraining the action of private persons. And it is not here material to inquire whether the powers vested in the Government of the United States are the only powers belonging to the united people of the States as a preëxisting political unit; or, in other words, whether the entire residue of sovereign powers, not granted to the Government, is, independently of the Constitution, ultimately vested in the people of all as one, or in the people of the States severally: this depending upon political theories of the antecedent political existence of the States, as before mentioned. It is sufficient in this respect for juridical purposes, that the tenth Article of the Amendments declares that the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively or to the people." It has already been shown that since "the people" which in the Constitution appears as the delegating or constituting power had, as a matter of fact, existed in the political capacity of the people of distinct States, and, though united into one nationality, had always acted under forms recognizing such an existence, the powers which are thus declared to be reserved "to the people" must be held by the people in their several capacity, that is, by the several political persons or bodies known each as the people of a State of the United States, and these reserved powers can therefore, under the present Constitution of sovereignty, be exercised. only by each singly in and for its own territory. This is the necessary inference from that recognition of the people which must precede the recognition of the Constitution.1

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intrusted to the Government of the U. S.; and it is not necessary to deny that the latter is the instrument of the integral American people, in order to maintain that the powers of the State government are equally sovereign in their nature, as is said by Mr. Calhoun, on p. 168; or to hold, with his speech in the Senate, 9th April, 1834, that each State has two Constitutions, i. e., that the State Constitution and the Constitution of the U. S., are Constitutions for the inhabitants by being both co-ordinately derived from the State, or the people of the State.

1 Ante, § 343.

§ 362. There are, however, certain powers belonging to sovereign nationality, necessarily existing somewhere, which, if not granted to the Government nor prohibited to the States, can hardly be said to exist at all in the several States; or, if existing, they are, by division, very different in effect from the same power used by the people nationally, or as one: a difference arising from physical conditions of territory and situation. For example, the power to acquire foreign territory and to exercise sovereignty over it. For if this power were not invested in the national Government, and if the States were not under the Constitution prevented from exercising it, yet their intrinsic power of acquisition under international law is very different in the hands of the nation acting as one, and in the same people acting as distinct states for that end. The same may be said of that right possessed by every national sovereignty, in some undefined measure, to change the law of nations, when applied in international law regarded as a rule of action for states, but as law in the imperfect sense.1

§ 363. The expression of the will of the supreme legislative authority, not that will itself, constitutes the law. From the very nature of sovereign national power, the law, or this expression, is always in a certain sense arbitrary, that is, dependent on that will. But in order that freedom, as the condition of a private person, subject to that will, may be said to have coëxistence with law, it is necessary that that law should be a rule of action already to some degree fixed, and not identified with mere arbitrary will. In order that freedom and its opposites may be legal conditions, there must be a previous publication of the rules of action or the laws which can affect freedom of action. So far as liberty consists in a high degree of guarantee against arbitrary rule, in the sense of ruling without law, it is secured to all under the Constitution of the United States, in reference to the powers intrusted to the National Government, and, to a less extent, in reference also to the powers of the sev

1 See ante, § 38.

2 "La liberté, c'est le droit de faire tout ce que les lois permettent."-Montesquieu. "Libertas est potestas faciendi id quod jure liceat."-Cicero.

eral States, by declaring the seat or investiture of all sovereign political power, the establishment of a judiciary, and its independence of the other functions of government.'

§ 364. From the two-fold nature of the Constitution, in being both the evidence of a fact and also the promulgation of a rule of action, the question of the relative extent of the judicial power of the United States is one which is, perhaps, essentially indeterminable. A law in the secondary sense-a state of things exists independently of any superior cause or author, and is maintained in its own existence. The possession of sovereign underived power is proved by itself. The fact of that possession does not result from a rule established by a superior will, but is proved in the actual possession or exercise of that power. But to the vitality of a law which is a rule of action a judicial function is essential. The judiciary, where the investiture of power to promulgate coercive rules of action for private individuals is determined by a law in the primary sense, becomes the test of the extent of that power.

The Government of the United States derives all its powers from a law, properly so called, contained in the written Constitution of the United States. The exercise of any powers by that Government is, therefore, a proper subject of judicial power proceeding from the authors of that law.

On the other hand the States, or the people of the several States, though not each severally possessed of all the powers of sovereignty, yet do, according to the view hereinbefore expressed, , hold their powers by right above law, or by a law of their existence, which is law in the secondary sense only, and their possession of those powers is only proved by the Constitution of the United States, as evidence, not derived from it as from a law in the proper sense. But since the Constitution of

'So if the several States create law by their sovereign powers, the judiciary of each State (supposing a republican State Government to exist, having the judicial function of the State separately invested) decides on the validity of laws proceeding from the legislative exercise of the state power.

2 That is, its extent as compared with other judicial power, that proceeding from the several States. The extent of the judicial power of the U. S. is described in the Constitution, Art. III. sec. 2.