460

NATURAL RIGHTS ACKNOWLEDGED.

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."

462

RIGHTS AS AGAINST THE GOVERNMENT.

control the exercise of one, or the other, or both of the two classes of powers separately invested in them, viz. those invested in the national Government, for national extent, and those remaining in the States, to take effect within their local jurisdictions; or those invested in the national Government, to act locally in specified territories.

§ 409. In all states wherein the mechanical Government is distinct, in the mode of its existence, from the ultimate national sovereign, and acts only in forms prescribed by public law, the constitution of the Government is, in itself, to a greater or less degree, a guarantee of just laws for the people governed; since the ordinary instrument of authority is liable to control by the ultimate sovereign, in case of an abuse of the power intrusted to it; even when it is not specified, by public law establishing that form of Government, wherein such abuse shall consist; or, in other words, when the power intrusted to the Government to affect the rights of private persons is not specifically limited.' When, by the constitution of the Government, its powers are limited, or, which has the same effect as public law, where rights of action are attributed to the persons governed, as independent of the action of the Government, the Constitution has direct effect as private law; and the rights of private persons guaranteed by it, whether political or civil, have the distinct character of legal liberties, in being ascertained and defined by law proceeding from the highest legislative authority.

In making a grant of powers to the national Government, the Constitution defines those powers in specific terms, and also limits their extent, by the recognition of certain rights in the people, as individuals, who are to be subject to those powers; which provisions are in that respect private law, a law of private rights as well as public law, because allowing to all persons, included in the scope of those provisions, liberty, in certain relations, independently of the action of that Government.

§ 410. Of this character are the first nine Articles of the

But this can only be when precedent and the possession of rights under personal laws have acquired a constitutional (institutional. See Lieber, Civ. Lib. and Self Gov.) existence in the national sentiment.

RIGHTS GUARANTEED.

463

Amendments, the second and third paragraphs of the ninth section of the first Article, the third paragraph of the second section and the whole of the third section of the third Article. These provisions limit the powers of the Government of the United States both in their national and in their local extent, i. e., whether operating generally in all the States, or in limited territorial jurisdictions,' and are, in reference to that Government, of the

Dred Scott's case, 19 Howard, (Opinion of the Court,) p. 447, "the personal rights and rights of property of individual citizens as secured by the Constitution. All we mean to say on this point is, that as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed." And again, on p. 449, (it being observed that though the reference is to the powers of the national Government in the Territories, it is assumed that the principle applies throughout the entire national domain, whether States or Territories.) "But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

"For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances. [1st Art. Amend.]

"Nor can Congress deny to the people the right to keep and bear arms, [2d Art. Amend.] nor the right to trial by jury, [5th and 6th Art. Amend.] nor compel any one to be a witness against himself in a criminal proceeding. [5th Art. Amend.]

"These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. [5th Art. Amend.] And an act of Congress which deprives a citizen of the United States, of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

"So, too, it will hardly be contended that Congress could by law quarter a soldier in a

464

OF A BILL OF RIGHTS.

nature of Bills of Rights, as they have been long known to the British islands and the American colonies; or rather, analogous to such bills, since they have a higher character in reference to the powers of the Government than any Bill of Rights compared with the power of the English parliament; for, by the theory of the English law, parliament is supposed to be omnipotent in legislation; whereas, in American public law, these guarantees of liberty have an equal character, as law, with the constitution of the Government, and are susceptible of change only by the same power which created it, giving to the liberties so reserved the character of liberty by law, in the strictest sense of the term.'

§ 411. Of like character are those limitations on the powers of the several States, in the tenth section of the first Article, prohibiting them from passing any bill of attainder, ex post facto law, or law impairing the obligation of contracts; and those in the fourth Article, limiting their powers in certain quasi-international relations which are hereinafter to be specially considered.

§ 412. The whole Constitution, whether public or private law, partakes, in fact, of the nature of a Bill of Rights, against the depositaries of power; being intended, by the express dec

house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. [3d Art. Amend.] Nor could they by law forfeit the property of a citizen in a Territory, who was convicted of treason, for a longer period than the life of the person convicted; [Const. Art. I, sec. 1, 3d parag. Art. III, sec. 3,] nor take private property for public use without just compensation. [5th Art. Amend.]

"The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers."

Hoke v. Henderson, 2 Dev. N. C. Rep. 15; per Ruffin, C. J., "The law of the land in bills of right does not mean merely an act of the legislature; for that construction would abrogate all restrictions on legislative authority. The clause means, that statutes which could deprive a citizen of the rights of person or property without a regular trial according to the course and usage of common law, would not be the law of the land, in the sense of the Constitution."

Also, Virginia Assembly Report, of 1799; Randolph's Ed. p. 220; Lessee of Livingston v. Moore, 7 Peters3 R. and Appendix I; Jones v. Perry, 10 Yerger's R. 59; 4 Hill, 146.