ITS POSSESSION, HOW DETERMINED.

475

national Government or in the several States. But though the possession of political rights by individuals is a fact which enters into the actual continuation of the national Government, and the exercise of those sovereign powers in and by the Constitution which, by the force of such exercise, constitute the people of the several States into one nation or state among the other "powers of the earth," there is nothing in the Constitution itself which determines who are the individuals that are to constitute the political people of that nation, or who are, in other words, to enjoy this liberty of action, in respect either to the political existence of the nation, or that of the several States. The only provisions in the Constitution which directly affect political rights or privileges, are those which limit the qualifications for office, or determine political capacities in respect to the organization of the national Government. These, in determining the instruments of supreme power, or the persons to whom it shall be intrusted, are public law as well as a law determining the rights of private individuals; and, though they are material for securing political freedom to the people of the United States in their character of an embodied state or nationality, or, in other words, for maintaining the national possession of sovereignty in its present form, and hence, derivatively, for securing all individual freedom of action, they are not necessary to be here considered.

§ 424. Since therefore the possession of those rights of action which constitute political freedom in private persons must be determined by some who are vested with sovereign power, the power to determine that possession must either be vested in Congress or be reserved to the States respectively, or the people of those States, as together exercising the sum of sovereign legislative power not already exercised in the Constitution.

If the term "republican government" implies the possession of political liberties by any of those who are also individually sub=ject to the supreme power of the state, the provision in the Constitution that the United States shall guarantee to every State of the Union a republican form of government,' taken in con

1 Art. IV. Sec. 4: "The United States shall guarantee to every State in this Union a republican form of government."

476

POWERS LEFT WITH THE STATES.

nection with the legislative powers vested in Congress, gives to the national Government, as the sole representative of the United States, some power to maintain in each State the political liberties of the individuals constituting the people of that State. But there is no power given to Congress to determine within a State, by a personal law, any specific possession of political rights, not even in the power to pass naturalization laws, that is, laws by which aliens to the dominion of the United States shall acquire the rights of a person born within that dominion. The possession of political liberty, as the right of a private person, is therefore, within each of the several States, determined, as an element of the political constitution both of the State and of the United States, by the will of that body of persons known as being, by the present possession and exercise of power, the political people of that State. They have the right to abridge or extend at their will the enjoyment of political liberty by individual inhabitants of their territory; subject only to the effect of the provision for a republican government, and to those provisions of a quasi-international character which limit the power of the State over persons who are alien to their several jurisdiction.

Whatever may be the principles affecting the possession of political liberties by individuals, which natural reason and political right (ethics) require to be observed in states and nations, the juridical recognition of those principles,-whether they can be called doctrines of a historically known law of nations-universal jurisprudence-or not, is dependent on the sanction of the sovereign power vested in the several States; except as affected by the above described provisions of the Constitution.

§ 425. The provisions of the Constitution, before referred to, which being of the nature of a bill of rights, constitute private law,' are a protection to the inhabitants of the United States only against the powers delegated to the national Government.*

1 Ante, § 409, 410.

2 Kent's Comm. Lect. XIX, in beginning: "As the Constitution of the United States was ordained and established by the people of the United States for their own government as a nation, and not for the government of the individual States, the

RESTRICTIONS ON THE STATES.

477

Similar provisions might have been made in the Constitution to restrain the powers of the States within their local jurisdictions. But the only existing clauses which limit their municipal (internal) legislation, (distinguished from international in respect to the persons upon whom it operates,) affect, principally, either those rights of persons which are classed as the rights of persons to things-rights of things-or those which have more of the character of public law, by their connection with the political action of the national Government, than of a law of private relations. Such are the provisions of Art. I., Sec. 10. The provisions which more directly affect the powers of the several States, in reference to the individual and relative rights of persons within their limits, are such as properly form an international or quasi-international law between the various States and the Government of the United States, as the several possessors of sovereign powers, to be exercised locally in the separate jurisdictions of the States or Territories. They affect the rights or obligations of private persons, within those several States or Territories, when recognized therein as aliens in respect to their local municipal laws. Thus the clauses of the fourth Article relating to those who within any State are aliens only to the State, but not to the United States and to the jurisdiction of the national Government, form a special law; limiting the powers of the States over such persons, with a coercive force beyond that of the general principles of international law, which may yet operate, in like circumstances, as between those States. The powers exclusively granted to the national Government over such public action as constitutes the peaceful or hostile intercourse of the nation with other nations, limit also, to a certain extent, the power of the States over those within their boundaries who are aliens to the United States.

§ 426. If there are any legal rights or liberties and legal duties or obligations which have hitherto been attributed to persons within the United States by virtue of principles judi

powers conferred and the limitations on power contained in that instrument, are applicable to the Government of the United States, and the limitations do not apply to the State Governments, unless expressed in terms. Thus, for instance," &c.

478

NO COMMON LAW OF UNITED STATES.

cially received as parts either of the "common law," or of the historical law of nations or a universal jurisprudence, but which are not fixed by the provisions of the Constitution before referred to, having the effect of private law, the principles determining those rights will be alterable either by the national legislature or by the several States, according to the connection which the action, contemplated in those rights and privileges or duties and obligations, may have with the powers respectively vested in the general Government or reserved to the States.

§ 427. It has been a question of great interest and importance in the jurisprudence of the United States whether the "common law," meaning thereby the common law of England transferred to the American colonies, is the law of the United States in their national or federal exercise of sovereign power; or, in other words, whether it exists, in the United States, as the judicially supposed will' of that sovereignty which is represented by the national Government, and therefore is a law, having national effect or prevalence, which is to be administered by the judicial and executive officers of that Government.

Referring to principles already stated as those which determine the existence of laws within the jurisdiction or domain of any sovereign power: all positive law is law resting on the will of some possessor of sovereign power; and has force and application both in some certain territory and over some certain persons, i. e., is territorial and personal,2 and the only laws which can be judicially recognized in any territory and applied to persons therein, as the will of the sovereign, are either such as in judicial recognition can be known to have had territorial extent therein, to be shown by historical evidence, or such as may afterwards originate either by the continuous judicial application of natural reason, or by the direct promulgation of the sovereign legislative power. Now it has been shown that private law prevailed in the colonies as the law of each separate colonial territory, (though maintained therein, to a certain extent, by

1 Ante, §§ 29, 30.

2

Ante, § 26.

COMMON LAW NOT NATIONAL.

479

the imperial authority,) and not as the single law of several parts of an integral national domain; or (if in any degree otherwise) that the only extent to which any private law prevailed nationally, was as a personal law, attaching to the British subject of European race, and then having a quasi-international effect in respect to those districts in which he had no local or particular domicil.' It follows, then, from the necessarily continuous existence of private law, that the Revolution and the consequent assumptions of power by the people of the colonies, in preserving and confirming the distributive possession of sovereign powers for local legislation, maintained that local character of the common law; or, in other words, that the only "common law" judicially known at the adoption of the Constitution of the United States was known in each State as a local territorial law.

§ 428. The term common law being here taken in that wider sense in which it may be employed in the jurisprudence of any country' and not merely as those rules which are identical with the "common law of England," it may be said that the only other law which can exist in the United States must be such as is promulgated by the direct legislation of the possessors or depositaries of sovereign power, and that the only legislation having national extent is that contained in the Constitution, or proceeding from the exercise of those powers, having a national extent, which are vested by it in Congress. So far as the Constitution employs words whose meaning is ascertained by their previous use as terms of the "common law," so far it may be said to adopt the "common law" in the legislation expressed by those terms; and it will always be necessary to refer to "common law" expositions of those terms to give effect to the Constitution. But there is nothing in the Constitution making the body of principles known, either in any State or States of the Union or in England, as "common law" a law promulgated by the authors of that Constitution. Law in any state is a rule of action founded on a right or power over such

Ante, § 35.

Ante, § 324-326, and the references.