necessarily binding on their several subordinate or constituted Governments.

§ 479. But where any administrative Government subsists under a form determined by law, properly so called it is evident that it cannot itself wield the whole of sovereign state power, one of whose characteristics is to be exercised in any form or mode its possessor may choose to employ. In each State of the Union there is such a Government, acknowledged to subsist by the will of the sovereign people thereof, or to be subject to the public law creating it. So far as civil liberty consists in being controlled only by known laws proceeding from rightful authority, it is secured under each State Government, as under the Government of the United States, by those provisions of the public law which separate the functions of power and prescribe the forms of legislation.*

§ 480. In most of the older fifteen States a written Constitution of Government replacing the former colonial public law, and expressly founded on the assertion of the existence of a sovereignty in the people of the State, distinct from and superior to the powers exercised. by the Government, was established during the revolutionary period, or before the establishment of the existing Constitution of the United States. But in two, viz., Connecticut and Rhode Island, while the people were acknowledged by the acts of the local legislative body, as well as in the formation of the national Constitution, to be the actual possessors of sovereignty, the form of the local Government remained such as it had been under the colonial charters, until a much later period, there being no specific acts of assumption of sovereignty by the political people of the former colony in any delegation of powers to newly constituted State Governments.

In these States, however, the popular investiture of local sovereignty had been more distinctly recognized, during the colonial period, than in the other provinces.

In these States, therefore, anterior to the adoption of a written State Constitution, the distinction between the power

Ante, p. 424.

2 Ante, § 363. 2 Curtis' Hist. Cons. 8. Wynehamer agst. The People, 3 Kernan, 391.

of the State and that of the administrative Government may not have been so clearly defined as in others. The separate or residuary powers of the State or of its people under the national (federal) Constitution being held by its administrative Government very much in the same manner as the sovereignty of the British empire is by parliament; or, at least, as the local colonial sovereignty claimed by the colonists had been held by the colonial Governments; there being no positive restriction of the legislature other than the anterior colonial legislative declarations of rights, corresponding to the English Bill of Rights and the Great Charters. There was, therefore, no visible restriction of the power of the legislatures of those States, during the period referred to, more than on that of the ultimately sovereign people, except such as was found in the nature of its political form or mode of existence with the three functions of power separately invested."

2

§ 481. But though this might be the strict view of the then existing constitution, in these instances, still it could never have been practically held that the power of the legislative body was absolute over all private rights and relations, even where not controlled by the political union with the other States.

The common law of England, having a distinctly personal character as the law of individual rights, and the principles of civil liberty proclaimed in the previous legislative history of the colony had, practically, the force of a written Constitution in restraining legislative discretion, and with greater distinctness than the common law of England in restraining parliament.

1 Ante, § 131.

2 Ante, §§ 129, 130.

See the case of Wilkinson v. Leland and others, 2 Peters, 627, where the powers of the legislature of Rhode Island, there then being no other Constitution than the Colonial Charter, were considered.

Ante, § 137.

"Fletcher v. Peck, 6 Cranch, 135; Marshall, C. J., "It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power." Calder v. Bull, 3 Dallas, 387; Mr. Justice Chase, "I cannot subscribe to the omnipotence of a State legislature or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution or fundamental law of the State. The people of the United States erected their Constitutions or forms of government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The pur

§ 482. In each of the several States written Constitutions are now in existence, adopted by the political people of each, having the effect of private as well as of public law. The scope of legislative power in the local Government is, therefore, more definitely determined than during the colonial period; though its extent must still be a question in many cases, since it is impossible to define it completely by any written instrument, even if such instrument should be enlarged to the dimensions of a code. The judiciary of each State in deciding upon the constitutional extent of the legislative power is obliged to refer, in all cases, to previously existing rules, affecting relations of private persons, as guides to the construction and interpretation of the

poses for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power they will decide what are the proper objects of it. The nature and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal or State legislature cannot do without exceeding their authority. There are certain vital principles in our free republican Governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof the Government was established. But an Act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments founded on express compact and on republican principles, must be determined by the nature of the power on which it is founded. A few instances," &c., &c. (Italicised as in Rep.) See also Wilkinson v. Leland, 2 Peters, 656; Dash v. Van Kleeck, 7 Johnson, 477; Goshen v. Stonington, 4 Conn. 225.

6

To the contrary seem to be, Bradde v. Bramfield, 2 Watts and Serg. 285; Harvey v. Thomas, 10 Watts, 66; Senator Verplank in Cochran v. Van Surlay, 20 Wendell, 381. See the opinions compared in E. Fitch Smith's Comm. ch. vii. Wynehamer v. The People, 3 Kernan, 391, Comstock, J., "I entertain no doubt that, aside from the special limitations of the Constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are by the Constitution distributed to other departments of the Government. It is only the legislative power' which is vested in the Senate and Assembly. But where the Constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said, (Fletcher v. Peck, supra,) How far the power of giving the law may involve every other power in cases where the Constitution is silent, never has been and perhaps never can be definitely stated.' That very eminent judge felt the difficulty; but the danger was less apparent then than it is now, when theories alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of Government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of Government."

written Constitution itself; and, therefore, in some degree, to recognize another law existing independently of the constituted legislature. It will always be difficult to determine what portion of the law existing at any one particular time is fundamental and constitutional; what part is to be regarded as fixed in the will of the constituting authority and to be judicially supposed to have been taken by it for a principle limiting all republican governments. It is also always necessary to discriminate a "natural and necessary law of nations," applied to the internal existence of states. This, perhaps, is nearly the same as the distinction of laws into laws in the primary and in the secondary senses;1 a law or usage being considered to have the character of natural or necessary law of nations, (whether affecting private persons or states,) where it has always been judicially viewed as the statement of a mode of action or a recognition of a condition of things; as, for example, the principle alluded to by Holt, of a man's not being ever a judge in his own cause.2

Being private as well as public law, the various constitutional provisions which may affect freedom or its contraries in the limited sense herein particularly considered, will be properly comprehended in a historical summary of the legislation of the several States affecting this topic.

§ 483. It has been herein before supposed that by the Revolution a certain national or general authority became transferred from the king and parliament of England to the integral people of the United States. This is taken to be a necessary assumption from the recognition of the present Constitution and the events which caused that recognition. But the same reasoning led to the conclusion that whatever powers the present Constitution declares to be vested in the several States, were in fact vested in them by the Revolution, or rendered by it entirely independent and sovereign, and were not derived from that Constitution."

According to this view there was no longer a national central power, maintaining within each State the common law of rights

and privileges of persons of European or Caucasian race, as it had been sustained under the British imperial power; except as it might be sustained internationally or quasi-internationally between the States, operating as public and private law. And, if there had been any national law affecting the condition of other persons to whom the common law of England did not apply as a personal law, it also ceased to have a national extent on the occurrence of the same events; or had, thereafter, only such effect as was derived from the international provisions of the Constitution.

Hence, whether there would have been a common law in each State which, in the absence of a State Constitution, could have been judicially recognized as a check on the legislature, would be, in each State, before and after the adoption of a State Constitution, a question of the same sort as that of the effect of common law in England against the power of parliament.

§ 484. But though the common law or every national law of the rights of persons may have ceased to have any continuing basis in a national authority, it is plain that, on the principle of the continuous existence of laws, the distinction of two races and of two personal laws applying to those races would continue to be recognized by the judicial tribunals of each State, in the same degree as before, until changed by the thereafter several and independent legislative power thereof; and that the laws which before were received in the State, as personal laws applying to aliens and as private international law, would continue to be recognized; until changed by the State for its own limits, or by the national power held by the general Government over this class of persons in all the States.

§ 485. The fourth of the Articles of the Confederation of November 17, 1777, may have been intended to secure in the several States some international allowance of rights and obligations which had before had a personal and national extent in all the colonies as parts of the British empire. But the effect of this Article on personal condition does not seem to have ever been made a subject of judicial inquiry during the existence of the Confederation. The Article may be thought to have the