it can only belong to those who were legally, or by those laws, persons.

§ 415. As was before shown, when territories inhabited by a people living in that social form which is known as a state among civilized nations pass under the dominion of new political sovereigns, the laws which thereafter are in force in those territories are still, both in their territorial and personal extent, those which previously existed therein, and which are not inconsistent with the supremacy of the new power. Still more evidently is this the case when such change of sovereignty is only domestic or civil, and when the new depositaries of power rest their claims on the maintenance of previously existing laws. Unless therefore there was something in the assumption of the totality of sovereign power by the people of the colonies, and in the establishment of the present public law of the United States, by which the foundations of civil society were broken up, and all rights reinvested on principles of some so-called natural law, as interpreted by the actors in the transaction, different from the law of natural reason juridically declared and contained in the previous law, there was nothing in those political changes to alter the condition or status of the inhabitants by the then existing private law; or to affect rights of persons, so far as private and not political or public; and the private law of the Anglo-American colonies must be taken to have continued to be the law of the new States, until changed by new legislative action, according to the location of supreme authority by the public law, and the subordinate judicial application of natural

reason.

§ 416. The sovereignty of any state being, of necessity, the first principle of its own law, all propositions necessary, as assertions of fact, to support that sovereignty, or which have been publicly and authoritatively assumed to support it, may be taken to be recognized by that law. The act of the Continental Congress of July 4, 1776, declares the independence or sovereignty of the States, or of the nation; but the propositions advanced

to justify the act, in the statement of the reasons or causes inducing it, can have legal force only on the ground of their necessary connection with it.

The preamble of the act of declaration announces its object to be to set forth the reasons which justify the colonies in severing the political bonds which had connected them with Great Britain and in assuming "an equal and separate station among the powers of the earth." It also contains certain general propositions, declaratory of rights, not only of communities, but also of private individuals. "We hold these truths to be selfevident, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed; that, whenever any form of government becomes destructive of those ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations on such principles, and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness."

Although from the form of statement these propositions are made a part of the foundation for a declaration of political independence by the representatives of pre-existing political bodies, i. e., the States or colonies, it is plain, both from the rest of the document and from history, that, if the claims of those colonies rested ultimately on the rights of private persons inhabiting their jurisdictions, it was on those rights as they existed by and in the public and political law, and as they were vested in those persons by the constitution of the empire, as hereditary and attaching to them in the character of members of existing political and civil bodies, and not in individual or relative rights as attributed by private law in social relations; and that if rights in that sense were also implied in the argument, it was not necessary to refer to any law of nature, as determining private relations, to support the measures of the revolution.

This further appears from the instrument itself, in the enumeration of the acts on the part of the king of Great Britain,

therein complained of; which were alleged to be violations of previously existing laws, public or private, and of constitutional principles. If it was intended to argue that the natural liberty of all men, individually and apart from all human laws, gave them the right to resist the imperial authority, it is evident that the resistance might have been made at any previous time at which the inhabitants of the colonies had thought proper to separate; which was never pretended. If the meaning is that the violation of natural liberty or of inalienable rights occurred by the violation of the civil and political liberties of the colonists, it is nothing more than the assertion that those civil and political liberties, as held by them under the public and private law, were such as the law of nature justified, without asserting that that law demanded their extension beyond the limits assigned by existing municipal law and political constitution.'

§ 417. Whatever may be the true theory of the seat of sovereignty, jus summi imperii, at the separation of the colonies from Great Britain, there, indisputably, was no grant of power to this Continental Congress to affect the status of persons, or to alter the basis of private law affecting the rights and relations of private persons as such. The instructions given to the dele

See 1 Lieber's Civ. Lib. and Self Gov., 278; Bentham, Principles of Morals and Legislation, c. XVII., § 27, note, after referring to these expressions in the declaration -"Who can help lamenting that so rational a cause should be rested upon reasons so much fitter to beget objections than to remove them? But with men who are unanimous and hearty about measures, nothing so weak but may pass in the character of a reason; nor is this the first instance in the world where the conclusion has supported the premises, instead of the premises the conclusion."

I

3 Dallas' Rep. 199, (1796), by Mr. Justice Chase: "It has been inquired what powers Congress possessed from the first meeting in September, 1774, until the ratification of the Articles of Confederation on the first of March, 1781. entertain this general idea that the several States retained all internal sovereignty, and that Congress properly possessed the great rights of external sovereignty."

Compare Mass. Quart. vol. I., p. 482.

It may be noticed that this declaration is, in form, the statement of facts,-modes of action, not rules of action. It is, if any thing, a definition, and to it may be applied a remark of M. Charles Comte, Traité de la Propriété, Tom. II., c. 48: "Definitions given by the legislative power may be useful, when they contain a command, or a prohibition, or when their object is to determine acts which individuals are bound to perform, or to abstain from; but when they have no other object than to make known the nature of things, they are useless and dangerous, and should be left to science. In the doctrines of fact, a legislator has no more authority than a simple individual, unless we admit, as a principle, that he is infallible." Reddie's Inquiries, Elementary, &c., 209.

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gates to the Congress by the several colonial conventions and assemblies, prior to the Declaration of Independence, contained an express reservation to each colony of the sole and exclusive regulation of its own internal government, police and concerns and whatever may have been the actual limits of that local sovereignty which was thus asserted, this reservation proves that Congress the existing organ of the national authority—had not these powers. Nor was there any actual exercise of authority, as national or federal, by that Congress, during its existence, intended directly to affect the status of persons within the limits of State jurisdictions, except in freeing indentured servants and slaves who had served in the army; and that only by making compensation to their masters.

Whatever declarations of the nature of supreme power, or of the individual or relative rights of the inhabitants, may have proceeded from that Congress, they can be taken to have legal authority only when necessarily assumed as principles justifying the exercise of the powers actually vested in them, and by which they had a very limited power of legislation.'

If these propositions in the declaration are to be taken in the sense of assertions of the right of all mankind to personal

The opposite conclusion is expressed by Mr. Sumner in his speech in the U. S. Senate, Aug. 26, 1852. Thirdly. According to a familiar rule of interpretation, all laws concerning the same matter, in pari materia, are to be construed together. By the same reason, the grand political acts of the nation are to be construed together, giving and receiving light from each other. Earlier than the Constitution was the Declaration of Independence, embodying, in immortal words, those primal truths to which our country pledged itself with its baptismal vows as a nation. 'We hold these truths to be self-evident,' says the nation, that all men are created equal, that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.' But this does not stand alone. There is another national act of similar import. On the successful close of the revolution, the Continental Congress, in an address to the people, repeated the same lofty truth. Let it be remembered,' said the nation again, 'that it has ever been the pride and the boast of America, that the rights for which she has contended were the rights of human nature. By the blessing of the Author of these rights, they have prevailed over all opposition, and FORM THE BASIS of thirteen independent states.' Such were the acts of the nation in its united capacity. Whatever may be the privileges of States in their individual capacities, within their several local jurisdictions, no power can be attributed to the nation, in the absence of positive, unequivocal grant, inconsistent with these two national declarations. Here, sir, is the national heart, the national soul, the national will, the national voice, which must inspire our interpretation of the Constitution, and enter into and diffuse itself through all the national legislation. Thus again is freedom national."

liberty or to a legal condition of freedom, and were as such unnecessary to the vindication of the acts of the revolutionary Congress, it is evident that it did not come within the scope of the powers of that body to declare them, and that they have no force in affecting legal rights, either in the general law of the nation or in that of the several States.

§ 418. The doctrines of this state paper, except in their connection with political relations, never obtained the force of law by their promulgation therein, either in the national or State jurisdiction, nor have any legislative or judicial authorities, under the constitutional division of sovereign powers, ever recognized the instrument as affecting the previous foundation of the laws of personal condition in this country. The only occasion for regarding these propositions as a standard of conduct for private persons, is found in comparing them with the private relations and public career of those who subscribed them.'

The same remarks apply to the declaration of Congress, July 6, 1775, giving the reasons for taking up arms against the British Crown.

§ 419. There is apparently nothing in the signification of the Constitution, or of the public acts of the people of the United States in their united or national possession of sovereignty, which can be justly construed into a universal attribution of the rights of legal personality, or a voluntary abnegation of this power over personal condition; whatever recognition there may

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No written declaration of political principles can be construed or interpreted without reference to its actual correspondence with the acts and circumstances of its authors. In 1297, at a time when the King of England was, practically, an absolute monarch, and a large portion of the community were in a state of villenage, the writs issued by Edward I. for the assembling of a Parliament contained this sentence: "What concerns all should be supported by all, approved by all, and common danger should be repelled by all." From this public act some have argued a legal right thereafter to universal representation, or the right of every one not to be taxed without his consent. See Wade's History of the Middle and Working Classes, p. 450.

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Chief Justice Taney, in Dred Scott's case, 19 Howard, pp. 409, 410, citing these clauses in the declaration, can hardly be supposed to have intended to argue more from their existence than is argued in the text above: that is, only that they are not to be taken as a juridical act altering the status or civil condition of persons of African descent, as it then existed in the colonies. The Chief Justice refers, as has here been done, to the history of the times and of the authors of the instrument, to prove that they are not to be so interpreted. On page 410-"It is necessary to do this in order to determine whether the general terms used in the Constitution of the United States, as