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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 living charters of English liberty, to the present day; and as the forerunners of the American constitutions and the source from which have been derived many of the most important articles in their bills of rights, they are constantly appealed to when personal liberty or private rights are placed in apparent antagonism to the claims of government.

1 The like condition of things is found to exist in the new States formed and admitted to the Union since the Constitution was adopted. Congress creates territorial governments of different grades, but generally with plenary legislative power either in the governor and judges, a territorial council, or a territorial leg

islature chosen by the people; and the authority of this body extends to all rightful subjects of legislation, subject, however, to the disapproval of Congress. Vincennes University v. Indiana, 14 How. 273; Miners' Bank v. Iowa, 12 How. 1. The legislation, of course, must not be in conflict with the law of Congress conferring the power to legislate, but a variance from it may be supposed approved by that body, if suffered to remain without disapproval for a series of years after being duly reported to it. Clinton v. Englebrect, 13 Wall. 434, 446. See Williams v. Bank of Michigan, 7 Wend. 539; Swan v. Williams, 2 Mich. 427; Stout v. Hyatt, 13 Kan. 232.

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 of confusion in the law, deemed it desirable to repeal the acts of Parliament, and to re-enact such portions of them as were regarded important here. See the Michigan repealing statute, copied from that of Virginia, in Code of 1820, p. 459. Others named a date or event, and provided by law that English statutes passed subsequently should not be of force within their limits. In some of the new States there were also other laws in force than those to which we have above alluded. Although it has been said in La Plaisance Bay Harbor Co. v. The City of Monroe, Walk. Ch. 155, and Depew v. Trustees of Wabash & Erie Canal, 5 Ind. 8, that the ordinance of 1787 was superseded in each of the States formed out of the North-West Territory by the adoption of a State constitution, and admission to the Union, yet the weight of judicial authority is probably the other way. In Hogg v. The Zanesville Canal Manufacturing Co., 5 Ohio, 410, it was held that the provision of the ordinance that the navigable waters of the Territory and the carrying-places between should be should be common highways, and for ever free, was permanent in its obligation, and could not be altered without the consent both of the people of the State and of the United States, given through their representatives. "It is an article of compact; and until we assume the principle that the sovereign power of a State is not bound by compact, this clause must be considered obligatory." Justice McLean and Judge Leavitt, in Spooner v. McConnell, 1 McLean, 337, examine this subject at considerable length, and both arrive at the same conclusion with the Ohio court. The view taken of the ordinance in that case was, that such parts of it as were

designed temporarily to regulate the government of the Territory were abolished by the change from a territorial to a State government, while the other parts, which were designed to be permanent, are unalterable except by common consent. Some of these, however, being guaranteed by the federal Constitution, afterwards adopted, may be regarded as practically annulled, while any others which are opposed to the constitution of any State formed out of the Territory must also be considered as annulled by common consent; the people of the State assenting in forming their constitution, and Congress in admitting the State into the Union under it. The article in regard to naviga ble waters is therefore still in force. The same was also said in regard to the article prohibiting slavery, though that also may now be regarded as practically annulled by the amendment to the federal Constitution covering the same ground. The like opinion was subsequently expressed in Palmer v. Commissioners of Cuyahoga Co., 3 McLean, 226, and in Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237. 237. See also Strader v. Graham. 10 How. 82; Doe v. Douglass, 8 Blackf. 12; Connecticut Mutual Life Ins. Co. v. Cross, 18 Wis. 109; Milwaukee Gaslight Co. v. Schooner Gamecock, 23 Wis. 144; Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61. Compare Woodburn v. Kilbourn Manuf. Co., 1 Abb. U. S. 158; s. c. 1 Biss. 546. In the cases in the first and third McLean, however, the opinion was expressed that the States might lawfully improve the navigable waters and the carrying-places between, and charge tolls upon the use of the improvement to obtain reimbursement of their expenditures.

In some of the States formed out of the territory acquired by the

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.'

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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.2 Some of these constitu

United States from foreign powers, traces will be found of the laws existing before the change of government. Louisiana has a code peculiar to itself, based upon the civil law. Much of Mexican law, and especially as regards lands and land titles, is retained in the systems of Texas and California. In Michigan, when the acts of Parliament were repealed, it was also deemed important to repeal all laws derived from France, through the connection with the Canadian provinces, including the Coutume de Paris, or ancient French common law. In the mining States and Territories a peculiar species of common law, relating to mining rights and titles, has sprung up, having its origin among the miners, but recognized and enforced by the courts. Regard

ing the canon and ecclesiastical law, and their force in this country, see Crump v. Morgan, 3 Ired. Eq. 91; Le Barron v. Le Barron, 35 Vt. 365.

It is worthy of note that the first case in which a legislative enactment was declared unconstitutional and void, on the ground of incompatibility with the constitution of the State, was decided under one of these royal charters. The case was that of Trevett v. Weeden, decided by the Superior Court of Rhode Island in 1786. See Arnold's History of Rhode Island, Vol. II. c. 24. The case is further referred to, post, p. * 160, note.

2 This was the claim made on behalf of Michigan; it being insisted that the citizens, under the provisions of the ordinance of 1787, whenever 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.1

The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legitimate authority.2 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 connection?

[* 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 form a constitution and be admitted to the Union under it. See Scott v. Detroit Young Men's Society's Lessee, 1 Doug. (Mich.) 119, and the contrary opinion in Myers v. Manhattan Bank, 20 Ohio, 283. The debates in the Senate of the United States on the admission of Michigan to the Union go fully into this question. See Benton's Abridgment of Congressional Debates, Vol. XIII. pp. 69-72. And

as to the right of the people of a Territory to originate measures looking to an application for admission to the Union, see opinions of AttorneysGeneral, Vol. II. p. 726.

1 See Jameson on Constitutional Conventions, c. 8.

2 McLean, J., in Spooner v. McConnell, 1 McLean, 347; Waite, Ch. J., in Miror v. Happersett, 21 Wall. 162, 172; Potter's Dwarris on Stat. 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.

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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 purposes, must be considered as synonymous with qualified voters." Blair v. Ridgely, 41 Mo. 63.

2 Some reference is made to the

reasons for the exclusion in the opinions in Bradwell v. State, 16 Wall. 130, and Minor v. Happersett, 21 Wall. 362.

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