§ 431. Common law then (including herein the law of nations, jus gentium or universal jurisprudence, so far as it is a law of personal condition') is in each State alterable only by the State power; except so far as limited by the constitutional provisions before referred to.

If, as has sometimes been asserted, Christianity, or the code of morals known as the Christian, ever had legal effect either as part of the "common law of England" and America or of the law of nations among nations called Christian, its continuance, with legal authority in determining the relations and rights of persons, is not maintained by any constitutional provisions giving it the effect of a national law for the United States. And, whatever may be the degree of correspondence between that code and the existing laws of the United States, its recognition as a judicial rule within any State of the Union depends solely on the separate sovereignty of the State.

§ 432. How far the "common law" may be a national law, in the sense of a law resting on the power represented by the national Government in the Territories, District of Columbia, &c., is a question of that one of the local municipal laws, as before defined, which may therein prevail. Because those Territories, &c., are, in reference to the rest of the Union and in point of severalty of jurisdiction, like the several States.

recognized as effects of common law, that law is also known as local municipal law. This is the general rule, at least as to those rights and obligations which constitute the personal condition or status of private persons. But when the judicial power of the U. S. is exercised, under the Constitution, to actualize or realize (ante, p. 59, n.) those effects, the national courts must (in the absence of statute) adopt a rule of nat ul reason determined by general principles of jurisprudence. (Ante, § 29-36.) This must be a customary or common law identified with the juridical will of the nation, the authors of the Constitution, and not with that of any one of the local sovereignties. So, when "cases at law and equity" arising under this Constitution, &c, are to be decided in the national tribunals, the cases are to be distinguished according to the jurisprudence of England as familiarly known here, (Story's Comm. § 1645,) and the rules of remedy are not the practice of some State, "but according to the principles of common law and equity as distinguished and defined in that country from which we derived our knowledge of those principles." (Robinson v. Campbell, 3 Wheaton, 212, 221, 223; 1 Kent, 342.) So that there is a sense in which a national common law may be said to exist and be adopted by the Constitution to the extent of making it "a rule in the pursuit of remedial justice in the courts of the Union." (Story's Comm. § 1645 and § 158, note.) Whether the courts of the U. S. have jurisdiction to punish acts which, though not made punishable by the legislation of Congress, are criminal by such a national common law, is a different question. Comp. 1 Kent's Comm. Lect. xvi; Rawle on the Const. ch. 28; Duponceau's Treatise; 1 Tucker's Bl. App. E.

Ante, § 110.

Ante, § 174.

Ante, § 397. Duponc. on Jurisd. 29, 30.

§ 433. There is therefore nothing in the Constitution of the United States which (either by abnegation of the power to establish a chattel condition as a personal distinction, or by attributing the legal rights of persons to all mankind, or by an adoption of the English "common law" in respect to individual and relative rights as a national and territorial law) determines the civil condition or status of natural persons under a law having national extent, to be recognized throughout the dominion of the United States and to be enforced by the national Government.

Further, the powers specifically granted to Congress, for enacting laws to have national extent, are not of such a nature as to determine those rights of persons the possession or nonpossession of which is the most important element of a free condition or of its contraries; that is, individual rights,' even independently of those restrictions on the national Government which have the character of a bill of rights; and even the personal application of the reservations against the powers of the national Government, in favor of specified rights of private persons, is not determined by the Constitution itself.

§ 434. On the other hand the restrictions in the Constitution of the United States, on the powers held by the States severally, are not of such a nature as to limit their power in the creation of local law affecting private rights, except in a few relations, not embracing those rights which distinguish a legal status or condition of persons, and in certain specified international and quasi-international relations. The power therefore of determining by personal laws the condition of individuals and their enjoyment of civil liberties belongs to the States, as the proper object of their own municipal (internal) law, under that share of sovereign power which remains in them severally, subject only to the undetermined effect of the national guarantee for a republican government, and restrained, in its application to persons, by general international obligation, (law in an imperfect sense,) and the law (in the strict and proper sense) of the Constitution having similar effect with coercive authority over private individuals.

1 Ante, § 139.

§ 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 application 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 unreasonableness 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 inhabitants, at least, of each colony, by the imperial as well as the local sovereignty; and the same law, as personal to those colo

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."

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 laws― the 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.1

§ 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

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.