a. Law resting on the source of the national municipal law, and therefore identified in authority with the first of these subdivisions. b. Law resting on the source of that local municipal law in reference to which the relations of the foreign aliens are considered, and therefore identified with it in its authority, as law in the strict sense. § 404. Wherever sovereign national power is divided between different depositories, freedom or its opposites may be considered in reference to the action of each possessor of any portion of that power: because every exercise of power limits or extends freedom of action in some relation. When freedom and its opposites are considered as legal conditions, consisting in different degrees of liberty of action in various relations created by law, the whole of jurisprudence is nothing else than the definition of those conditions. The further consideration of freedom and its opposites in the United States is to be made by tracing the effects of the laws, included under the division above made, in creating or sustaining rights and obligations incident to the condition or status of private persons. CHAPTER XIV. THE NATIONAL MUNICIPAL (INTERNAL) LAW OF THE UNITED STATES-ITS EFFECT UPON CONDITIONS OF FREEDOM AND ITS OPPOSITES. § 405. Since the freedom herein to be considered is only such legal freedom from the control of others and general liberty of social action as includes the possession of individual rights and legal capacity for the ordinary relative rights attributed to persons in a civil state, and bondage, or servitude is viewed as a condition consisting in a greater or less diminution of such possession or capacity, (whether including the idea of chattel condition or not,) the several divisions of the private law of the United States, given in the preceding chapter, will hereinafter be regarded in respect to its effect on the possession or enjoyment of these rights, or as forming a law of status or personal condition. The first division of private municipal law in the preceding chapter, was that called national municipal law; which was defined to be that contained in the Constitution, or proceeding from the legislative power of the national Government, and having general extent and effect upon persons and things throughout the dominion of the United States, whether States or Territories. § 406. In the introductory analysis of the topics of the law, or of jurisprudence, it was shown that the first distinction known to the law is that between persons and things; and that, under any system of law wherein that distinction is attached to natural persons, the attribution of the legal character of a thing, or of an object of rights exclusively, is a denial, in the most absolute form, of liberty of action under law. This distinction being analytically, or logically, anterior to a description of the rights of persons, like that under Blackstone's analysis, and necessarily considered as a mark of status or condition in the civil law sense; which comprises those legal principles which attribute or deny personality and a capacity for legal rights to human beings.' All law is, in a certain sense, a limitation of freedom; and the national municipal law, herein before defined, by creating rights and obligations in various relations, throughout its jurisdiction, defines or limits freedom in each local State jurisdiction, as does also the local municipal law of the State. But the establishment of such a distinction between natural persons as gives to one the legal character of an object, only, of the rights of another, or even gives to one such a right of personal control over another, as constitutes the relation of master and servant, without the consent of the latter-even when his legal personality is recognized, is the result of a single and distinct exercise of sovereign legislative power; and therefore in a state, wherein it is distributed between several distinct depositories, can be vested in one only of the possessors of that kind of power. § 407. The Constitution does not contain any definition or limitation, of the sovereign powers belonging to a political state or national sovereignty. Therefore, according to the distribution of sovereign powers contained in or evidenced by the Constitution which has been stated in the previous chapter, it may be inferred, that the power to establish this distinction is either granted by the Constitution to the national Government, or, if not prohibited to the States, remains with them, as one of the 1 Ante, § 44. And, in a certain sense, it is true that liberty is a thing impossible; as said by some; Nodier's Jean Sbogar, (a novel said to have interested Napoleon,) ch. 13. Ruskin's Seven Lamps: the Lamp of Obedience. Amer. ed., p. 165. The idea is not very new. Eurip. Hec. 1. 864.— Ους ἔστι θνητῶν ὅστις εστ ̓ ἐλεύθερος . . reserved powers, spoken of in the tenth Article of the Amendments. But the extent to which sovereign national power may rightfully proceed in affecting the condition of individual members of society being taken to depend upon the will or judgment of the state, or of the actual possessors of its powers, as constituting the only legal test of the just and natural powers of the state, it may first of all be questioned whether the people of the United States, as the possessors of that sovereign power, have, either as one national sovereignty, or as different communities uniting in the exercise of separate powers, so limited that power in their own hands, that the establishment of this distinction in the legal condition of natural persons can no longer be legally considered within the limits of the highest power known (under law) in the United States; and consequently may not be juridically said not to exist, either in the powers of the Government of the United States, or among those of the several States. In other words, the inquiry may be made whether any recognition has been made by the actual and ultimate sovereign from whom the Constitution, regarded as public and private law, proceeds, of the innate and necessary personality of all men; such as necessarily attributes to all a legal capacity for rights, opposed to the condition of a thing, and implies the possession of individual rights by all natural persons, especially of the right of personal liberty. In like manner as it may be considered acknowledged by all Christian sovereignties, that each individual human being has a right to life, independently of the will of the supreme power of the state, which right is not to be infringed except on forfeiture for crime. Such an acknowledgment may not be found embodied in specific declarations, but may justly be inferred from the public action of Christian states, if not of all nations, to be received by them as a natural principle. A similar acknowledgment might exist in regard to personal liberty, or all individual rights. Such declaration could not indeed coerce with any legal force the supreme national power; or, in the United States, the ultimately sovereign people. The solemn recognition by WHETHER ACKNOWLEDGED BY THE CONSTITUTION. 461 that sovereign, of rights in individuals, would however be a moral security against the action even of that sovereign power itself; being public expressions of great principles of political ethics, and in the nature of a recognition of natural law, or of an assertion of natural reason by the highest earthly authority, which would prove, to all subject to that power, the deepest attainable basis for liberty by or with law.1 § 408. The written Constitution of the Government of the United States being the highest law known therein, by being the controlling expression of sovereign will, wherever its provisions can apply, it must here be looked to as the determining criterion of what may be a principle of public or private law. There might be, in the Constitution, declarations which would have various effects as law upon the rights of persons, determining either the nature and number of those rights, (as topics of private law,) or their extent in reference to the different depositaries of power, (as topics of public law.) Provisions might exist therein, applying to all or to some natural persons within the dominion of the United States, such as would necessarily imply a legal personality, and capacity for rights in legal relations; or they might be such as would establish the possession of specific rights by all, or by some, equivalent to establishing a condition of freedom, in a greater or less measure, for all included under those provisions. Provisions having such effect, as private law, would be also public law, in respect to either or both of the two depositaries of sovereign power recognized by the Constitution; and would 2 Comp. Burke in debate on India Bill, Parl. Hist., vol. xxxiii, 315; Smith's Comm., p. 257. M. B. de Constant, Œuvres, tom. i, p. 189: "Sans vouloir, comme l'ont fait trop souvent les philosophes, exagérer l'influence de la vérité, l'on peut affirmer que, lorsque de certains principes sont complétement et clairement démontrés, ils se servent en quelque sorte de garantie à eux-mêmes. Ils se forment a l'égard de l'évidence une opinion universelle qui bientôt est victorieuse. S'il est reconnu que la souveraineté n'est pas sans bornes, c'est-à-dire, qu'il n'existe sur la terre aucune puissance illimitée, nul, dans aucun temps, n'osera réclamer une semblable puissance. L'expérience même le prouve déjà. L'on n'attribue plus, par exemple, à la société entière, le droit de vie et de mort sans jugement. Aussi nul gouvernement moderne ne prétend exercer un pareil droit. Si les tyrans des anciennes républiquès nous paraissent bien plus effrénés que les gouvernans de l'histoire moderne, c'est en partie à cette cause qu'il faut l'attribuer. Les attentats les plus monstrueux du despotisme d'un seul furent souvent dus à la doctrine de la puissance sans bornes de tous.' |