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of such men learned in the law as had been accepted as authority, but mainly in the decisions of the courts applying the * law to actual controversies. While colonization con- [* 25] tinued, that is to say, until the war of the Revolution actually commenced, — these decisions were authority in the

colonies, and the changes made in the common law up to the same period were operative in America also if suited to the condition of things here. The opening of the war of the Revolution is the point of time at which the continuous stream of the common law became divided, and that portion which had been adopted in America flowed on by itself, no longer subject to changes from across the ocean, but liable still to be gradually modified through changes in the modes of thought and of business among the people, as well as through statutory enactments.

The colonies also had legislatures of their own, by which laws had been passed which were in force at the time of the separation, and which remained unaffected thereby. When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition ; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted ; and, third, of the colonial statutes. The first and second constituted the American common law, and by this in best evidence possible. They are the islature chosen by the people; and living charters of English liberty, to the authority of this body extends to the present day; and as the forerun- all rightful subjects of legislation, ners of the American constitutions subject, however, to the disapproval and the source from which have been of Congress. Vincennes University derived many of the most important v. Indiana, 14 How. 273; Miners' articles in their bills of rights, they Bank v. Iowa, 12 How. 1. The legisare constantly appealed to when per- lation, of course, must not be in sonal liberty or private rights are conflict with the law of Congress conplaced in apparent antagonism to the ferring the power to legislate, but a claims of government.

variance from it may be supposed * The like condition of things is approved by that body, if suffered to found to exist in the new States remain without disapproval for a formed and admitted to the Union series of years after being duly resince the Constitution was adopted. ported to it. Clinton v. Englebrect, Congress creates territorial govern- 13 Wall. 434, 446. See Williams v. ments of different grades, but gener- Bank of Michigan, 7 Wend. 539 ; ally with plenary legislative power Swan v. Williams, 2 Mich. 427; Stout either in the governor and judges, a

v. Hyatt, 13 Kan. 232. territorial council, or a territorial leg

great part are rights adjudged and wrongs redressed in the American States to this day.1

1 A few of the States, to get rid designed temporarily to regulate the of confusion in the law, deemed it government of the Territory were desirable to repeal the acts of Parlia- abolished by the change from a terriment, and to re-enact such portions of torial to a State government, while thein as were regarded important the other parts, which were designed here. See the Michigan repealing to be permanent, are unalterable exstatute, copied from that of Virginia, cept by common consent. Some of in Code of 1820, p. 459.

these, however, being guaranteed by named a date or event, and provided the federal Constitution, afterwards by law that English statutes passed adopted, may be regarded as practisubsequently should not be of force cally annulled, while any others which within their limits. In some of the are opposed to the constitution of any new States there were also other laws State formed out of the Territory in force than those to which we have must also be considered as annulled above alluded. Although it has been by common consent; the people of said in La Plaisance Bay Harbor Co. the State assenting in forming their v. The City of Monroe, Walk. Ch. 155, constitution, and Congress in admitand Depew v. Trustees of Wabash & ting the State into the Union under Erie Canal, 5 Ind. 8, that the ordi- it. The article in regard to naviga. nance of 1787 was superseded in each ble waters is therefore still in force. of the States formed out of the The same was also said in regard to North-West Territory by the adop- the article prohibiting slavery, though tion of a State constitution, and ad- that also may now be regarded as mission to the Union, yet the weight practically annulled by the amendment of judicial authority is probably the to the federal Constitution covering other way. In Hogg v. The Zanes- the same ground. The like opinion was ville Canal Manufacturing Co., 5 subsequently expressed in Palmer v. Ohio, 410, it was held that the provi- Commissioners of Cuyahoga Co., 3 sion of the ordinance that the naviga- McLean, 226, and in Jolly 0. Terre ble waters of the Territory and the Haute Drawbridge Co., 6 McLean, carrying-places between should be 237. See also Strader v. Graham. 10 cominon highways, and for ever free, How. 82; Doe v. Douglass, 8 Blackf. was permanent in its obligation, and 12; Connecticut Mutual Life Ins. Co. could not be altered without the con- v. Cross, 18 Wis. 109; Milwaukee sent both of the people of the State Gaslight Co. v. Schooner Gamecock, and of the United States, given 23 Wis. 144; Wisconsin River Imthrough their representatives. “It provement Co. v. Lyons, 30 Wis. 61. is an article of compact; and until Compare Woodburn Kilbourn we assume the principle that the sov- Manuf. Co., 1 Abb. U. S. 158; 8. C. ereign power of a State is not bound 1 Biss. 516. In the cases in the first by compact, this clause must be con- and third McLean, however, the opinsidered obligatory.” Justice McLean ion was expressed that the States and Julge Leavitt, in Spooner v. Mc- might lawfully improve the navigable Connell, 1 McLean, 337, examine waters and the carrying-places bethis suliject at considerable length, tween, and charge tolls upon the use and both arrive at the same conclu- of the inproveinent to obtain reimsion with the Ohio court. The view bursement of their expenditures. taken of the ordinance in that case In some of the States formed out was, that such parts of it as were of the territory acquired by the

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Every colony had also its charter, emanating from the [* 26] Crown, and constituting its colonial constitution. All but two of these were swept away by the whirlwind of revolution, and others substituted which had been framed by the people themselves, through the agency of conventions which they had chosen. The exceptions were the States of Connecticut and Rhode Island, each of which had continued its government as a State under the colonial charter, finding it sufficient and satisfactory for the time being, and accepting it as the constitution for the State.

New States have since, from time * to time, formed con- [* 27] stitutions either regularly in pursuance of enabling acts passed by Congress, or irregularly by the spontaneous action of the people, or under the direction of the legislative or executive authority of the Territory to which the State succeeded. Where irregularities existed, they must be regarded as having been cured by the subsequent admission of the State into the Union by Congress; and there were not wanting in the case of some States plausible reasons for insisting that such admission * had [* 28] become a matter of right, and that the necessity for an enabling act by Congress was dispensed with by the previous stipulations of the national government in acquiring the Territory from which such States were formed. Some of these constitu

United States from foreign powers, ing the canon and ecclesiastical law, traces will be found of the laws exist- and their force in this country, see ing before the change of government. Crump v. Morgan, 3 Ired. Eq. 91; Le Louisiana has a code peculiar to itself, Barron v. Le Barron, 35 Vt. 365. based upon the civil law. Much of It is worthy of note that the Mexican law, and especially as re- first case in which a legislative enactgards lands and land titles, is retained ment was declared uncoustitutional in the systems of Texas and Cali- and void, on the ground of incompatifornia. In Michigan, when the acts bility with the constitution of the of Parliament were repealed, it was State, was decided under one of these also deemed important to repeal all royal charters. The case was that of laws derived from France, through Trevett v. Weeden, decided by the the connection with the Canadian Superior Court of Rhode Island in provinces, including the Coutume de 1786. See Arnold's History of Rhode Paris, or ancient French common Island, Vol. II. c. 24. The case is law. In the mining States and Ter- further referred to, post, p. * 160, note. ritories a peculiar species of common 2 This was the claim made on belaw, relating to mining rights and half of Michigan; it being insisted titles, has sprung up, having its ori- that the citizens, under the provisions gin among the miners, but recognized of the ordinance of 1787, whenever and enforced by the courts. Regard- the Territory acquired the requisite


tions pointed out the mode for their own modification ; others were silent on that subject; but it has been assumed that in such cases the power to originate proceedings for that purpose rested with the legislature of the State, as the department most nearly representing its general sovereignty; and this is doubtless the correct view to take of this subject.

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority. The people of the Union created a national constitution, and conferred upon it powers of sovereignty over certain subjects, and the people of each State created a State government, to exercise the remaining powers of sovereignty so far as they were disposed to allow them to be exercised at all. By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law. But in every State, although all persons are under the protection of the government, and obliged to conform their action to its laws, there are always some who are altogether excluded from participation in the government, and are compelled to submit to be ruled by an authority in the creation of which they have no choice. The political maxim, that government rests upon the consent of the governed, appears, therefore, to be practically subject to many exceptions; and when we say the sovereignty of the Sate is vested in the people, the question very naturally presents itself, What are we to understand by The People as used in this con

nection? [* 29] * What should be the correct rule upon this subject, it

does not fall within our province to consider. Upon this

population, had an absolute right to as to the right of the people of a form a constitution and be admitted Territory to originate measures lookto the Union under it. See Scott v. ing to an application for admission to Detroit Young Men's Society's Lessee, the Union, see opinions of Attorneys1 Doug. (Mich.) 119, and the contrary General, Vol. II. p. 726. opinion in Myers v. Manhattan Bank, 1 See Jameson on Constitutional 20 Ohio, 283. The debates in the Conventions, c. 8. Senate of the United States on the 2 McLean, J., in Spooner v. Mcadmission of Michigan to the Union Connell, 1 McLean, 347; Waile, Ch. go fully into this question. See Ben- J., in Miror v. Happersett, 21 Wall. ton's Abridgment of Congressional 162, 172; Potter's Dwarris on Stat. Debates, Vol. XIII. pp. 69–72. And c. 1.


men will theorize; but the practical question lies back of the formation of the Constitution, and is addressed to the people themselves. As a practical fact, the sovereignty is vested in those persons who are permitted by the constitution of the State to exercise the elective franchise. Such persons may have been designated by description in the enabling act of Congress permitting the formation of the constitution, if any such there were, or the convention which framed the constitution may have determined the qualifications of electors without external dictation. In either case, however, it was essential to subsequent good order and contentment with the government, that those classes in general should be admitted to a voice in its administration, whose exclusion on the ground of want of capacity or of moral fitness could not reasonably and to the general satisfaction be defended.

Certain classes have been almost universally excluded, - the slave, because he is assumed to be wanting alike in the intelligence and the freedom of will essential to the proper exercise of the right; the woman, from mixed motives, but mainly perhaps, because, in the natural relation of marriage, she was supposed to be under the influence of her husband, and, where the common law prevailed, actually was in a condition of dependence upon and subjection to him ;2 the infant, for reasons similar to those which exclude the slave; the idiot, the lunatic, and the felon, on obvious grounds; and sometimes other classes for whose exclusion it is difficult to assign reasons so generally satisfactory.

The theory in these cases we take to be that classes are excluded because they lack either the intelligence, the virtue, or the liberty of action essential to the proper exercise of the elective franchise. But the rule by which the presence or absence of these qualifications is to be determined, it is not easy to establish on grounds the reason and propriety of which shall be accepted by all. It must be one that is definite and easy of application, and it must be made permanent, or an accidental majority may at any time change it, so as to usurp all power to themselves. But to be definite and easy of application, it must also be arbitrary. The

1 " The people, for political pur- reasons for the exclusion in the opinposes, must be considered as synony- ions in Bradwell v. State, 16 Wall. mous with qualified voters.” Blair 130, and Minor v. Happersett, 21 Wall. o. Ridgely, 41 Mo. 63.

362. 2 Some reference is made to the


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