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ER 1.


A STATE is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. The terms nation and State are frequently employed, not only in the law of nations, but in common parlance, as importing the same thing ; 2 but the term nation is more strictly synonymous with people, and while a single State may embrace different nations or peoples, a single nation will sometimes be so divided politically as to constitute several States.

In American constitutional law the word State is applied to the several members of the American Union, while the word nation is applied to the whole body of the people embraced within the jurisdiction of the federal government.

Sovereignty, as applied to States, imports the supreme, absolute, uncontrollable power by which any State is governed. A State is called a sovereign State when this supreme power resides within itself, whether resting in a single individual, or in a number of

1 Vattel, b. 1, c. 1, § 1; Story on tion v. Georgia, 5 Pet. 52; Chase, Ch. Const. § 207 ; Wheat. Int. Law, pt. J., in Texas v. White, 7 Wall. 720; 1, c. 2, § 2; Halleck, Int. Law, 63; Vattel, supra. Bouv. Law Dict. “ State." “ A mul- 3 Story on Const. § 207; 1 Black. titude of people united together by a Com. 49; Wheat. Int. Law, pt. 1, c. communion of interest, and by com- 2, § 5; Halleck, Int. Law, 63, 64; mon laws, to which they submit with Austin, Province of Jurisprudence, one accord." Burlamaqui, Politic Lec. VI. ; Chipman on Government, Law, c. 5. See Chisholm v. Georgia, 137. The right of commanding 2 Dall. 457; Georgia v. Stanton, 6 finally in civil society.” Burlamaqui, Wall. 65.

Politic Law, c. 5. · Thompson, J., in Cherokee Na

individuals, or in the whole body of the people. In the view of

international law, all sovereign States are and must be [*2] equal in rights, * because from the very definition of

sovereign State, it is impossible that there should be, in respect to it, any political superior.

The sovereignty of a State commonly extends to all the subjects of government within the territorial limits occupied by the associated people who compose it; and, except upon the high seas, which belong equally to all men, like the air, and no part of which can rightfully be appropriated by any nation, the dividing line between sovereignties is usually a territorial line. In American constitutional law, however, there is a division of the powers of sovereignty between the national and State governments by subjects: the former being possessed of supreme, absolute, and uncontrollable power over certain subjects throughout all the States and Territories, while the States have the like complete power, within their respective territorial limits, over other subjects. In regard to certain other subjects, the States possess powers of regulation which are not sovereign powers, inasmuch as they are liable to be controlled, or for the time being to become altogether dormant by the exercise of a superior power vested in the general government in respect to the same subjects.

A constitution is sometimes defined as the fundamental law of a State, containing the principles upon which the government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised. Perhaps an

i Vattel, b. 1, c. 1, § 2; Story on appropriated to the United States is Const. § 207; Halleck, Int. Law, 65. as far beyond the reach of the judicial In other words, when it is an inde- process issued by a State judge or a pendent State. Chipman on Govern- State court, as if the line of division ment, 137.

was traced by landmarks and monu2 Vattel, b. 1, c. 23, $ 281; Wheat. ments visible to the eye." Taney, Int. Law, pt. 2, c 4, § 10.

Ch. J., in Ableman v. Booth, 21 How. 8 McLean, J., in License Cases, 5 516. See Tarble's Case, 13 Wall. How. 588. ** The powers of the gen- 406. That the general division of eral government and of the State, powers between the federal and State although both exist and are exercised governments has not been disturbed within the same territorial limits, are by the new amendments to the federal yet separate and distinct sovereignties, Constitution, see United States v. acting separately and independently Cruikshanks, 92 U. S. Rep. 542. of each other, within their respective - 1 Bouv. Inst. 9; Duer, Const. spheres. And the sphere of action Juris. 28. “By the constitution of

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equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.

In a much qualified and very imperfect sense every State may be said to possess a constitution ; that is to say, some leading principle has prevailed in the administration of its government, until it has become an understood part of its system, to which obedience * is expected and habitually yielded; [*3] like the hereditary principle in most monarchies, and the custom of choosing the chieftain by the body of the people which prevails among some barbarous tribes. But the term constitutional government is applied only to those whose fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights, and shield them against the assumption of arbitrary power. The number of these is not great, and the protection they afford to individual rights is far from being uniform.2

In American constitutional law, the word constitution is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or of any one of the States, as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it, and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void.

a State I mean the body of those he will observe its provisions, and written or unwritten fundamental conduct the government accordingly. laws which regulate the most iinpor- The mere grant of a constitution does tant rights of the higher magistrates not make the government a constituand the most essential privileges of the tional government, until the monarch subjects.” Mackintosh on the Study is deprived of power to set it aside at of the Law of Nature and Nations. will. The grant of Magna Charta

· Calhoun's Disquisition ou Gov- did not make the English a constituernment, Works, I. p. 11.

tional monarchy; it was only after ? Absolute monarchs, under a repeated violations and confirmations pressure of necessity, or to win the of that instrument, and when a furfavor of their people, sometimes grant ther disregard of its provisions had them what is called a constitution; become dangerous to the Crown, that but this, so long as the power of the fundamental rights could be said to monarch is recognized as supreme, have constitutional guaranties, and can be no more than his promise that the government to be constitutional.

The term unconstitutional law must vary in its meaning in different States, according as the powers of sovereignty are or are not possessed by the individual or body which exercises the powers of ordinary legislation. Where the law-making department of a State is restricted in its powers by a written fundamental law, as in the American States, we understand by unconstitutional law one which, being opposed to the fundamental law, is therefore in excess of legislative authority, and void. Indeed, the term unconstitutional law, as employed in American jurisprudence, is a misnomer, and implies a contradiction; that enactment which is opposed to the constitution being in fact no law at all. But where, by the theory of the government, the exercise of complete sovereignty is vested in the same individual or body which enacts the ordinary laws, any law, being an exercise of power by the sovereign authority, must be obligatory, and, if it varies from or conflicts with any existing constitutional principle, must have the effect to modify or abrogate such principle, instead of being nullified by it. This must be so in Great Britain with every law not in harmony with pre-existing constitutional principles; since, by the theory of its government, Parliament exercises

sovereign authority, and may even change the Constitu[* 4] tion * at any time, as in many instances it has done, by

declaring its will to that effect. And when thus the power to control and modify the constitution resides in the ordinary law-making power of the State, the term unconstitutional law can mean no more than this: a law which, being opposed to the settled maxims upon which the government has habitually been conducted, ought not to be, or to have been, adopted. It follows, therefore, that in Great Britain constitutional questions are for the most part to be discussed before the people or the Parliament, since the declared will of the Parliament is the final law; but in America, after a constitutional question has been passed upon by the legislature, there is generally a right of appeal to the courts when it is attempted to put the will of the legislature in

11 Black. Com. 161; De Tocque- illustrations to show that in England, ville, Democracy in America, c. 6; and indeed under most governments, Broom, Const. Law, 795.

a rule prescribed by the law-making 2 Mr. Austin, in his Province of authority may be unconstitutional, Jurisprudence, Lec. VI., explains and and yet legal and obligatory. enlarges upon this idea, and gives

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