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RIGHTS, TO WHOM ATTRIBUTED.

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laration of the constituting power in the preamble, to be the means of “securing liberty and establishing justice to the people of the United States and their posterity." The grant of powers by specification to Congress, the executive and the judiciary department; the separation of the functions of supreme power; the reservation of power to the people in the political condition of distinct States are, as well as the provisions above alluded to, in their tendency, securities of liberty to the people in various private relations, as the subjects of supreme power, while at the same time bulwarks of power to the same people, politically united or separated, as the ultimate and only sovereign.

§ 413. It is evident that the attribution of these rights to the people of the United States, against the specified powers of the national Government, is equivalent to a recognition of personality and capacity for legal rights in all the inhabitants of the dominion of the United States, whether States or Territories, if, by the word people, every inhabitant of that dominion is intended. These rights are legally predicable only of legal persons, and, therefore, when so predicated, are equivalent to an attribution of a free condition, opposed to a status of chattel slavery. The application of such provisions, as a personal law, to any natural persons is manifestly incompatible with the legal negation of personality, or the attribution of that legal status which consists in the non-recognition of rights before the supreme power of the state.

In like manner as the Constitution, considered as public law and the evidence of the possession of sovereignty, is to be construed or interpreted by previous laws and customs, in order to distinguish the persons who are therein referred to as the constituting people of the United States,' so, in the application of these provisions and the interpretation of this preamble as private law, the same reference must be had to previous law and juridical usage, to determine who are the natural persons to whom personality and a capacity for these specified rights is to be attributed by the force of these terms, as well as the extent

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RIGHTS NOT ATTRIBUTED TO ALL.

and meaning of the terms in which those rights are conveyed or recognized.

§ 414. In public law the people spoken of in the instrument must be taken, as before shown, to be a certain political people or mass of individuals politically organized into existing States, or peoples of States, determined by facts antecedent to the Constitution, and so distinguishable from the mass of the inhabitants. And, since the hereditary possession of civil and social liberty under ancient personal laws was an essential circumstance in determining who constituted that people, or the people of those States, liberty, here spoken of, whether political or civil, must, in connection with private rights, or as it forms the right of a private person, be taken to be something dependent on laws and customs, or something personal to certain individuals determined by laws of descent and inheritance, and not predicated of all mankind as innate, or determined only by the fact of possessing the human nature or form. It must be taken to be political, civil, or social liberties, identified with some known legal rights, already determined by the municipal and international law, or by common law, the law of nations, and colonial or imperial statute law; and to be liberty consisting in relations existing under law, not a condition antecedent to law. The clauses of the Constitution in which persons are spoken of as either free or not free, and as held to service or labor, are another evidence that the liberty spoken of is that determined by previous law and usage. And since legal liberty relates to freedom of action as a right, which can legally be predicated of persons only, if the liberty spoken of is dependent on previous laws,

1"Es erben sich Gesetz und Rechte."

However false may be the doctrine of Mephistophiles, in his lecture to the disparagement of jurisprudence, it is not less true in America than in other countries:

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CONTINUATION OF COLONIAL LAW.

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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

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DECLARATION OF INDEPENDENCE.

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,

DECLARATION OF INDEPENDENCE.

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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

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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."

* 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. . I 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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