state to other states: their public rights being internal and absolute, and thus independent of treaty or compact with other states; or external and relative, and therefore in part determined by inter-state legislation.

(1 c) PUBLIC ABSOLUTE RIGHTS, or those of a political community in relation to its members and subjects, are strictly analogous to those absolute rights of private individuals which political states are originally designed to secure and protect; and corresponding to the three great original rights of LIFE, LIBERTY, and PROPERTY, are none other than the rights of POLITICAL EXISTENCE, POLITICAL SOVEREIGNTY and POLITICAL DOMAIN. Of these we treat in the present book.

26. Public absolute

rights.

(1 d) OF THE RIGHT OF POLITICAL EXISTENCE: AND HERE. IN, FIRST

(1 e) OF THE GENERAL NATURE OF A POLITICAL STATE.

THE RIGHT OF POLITICAL EXISTENCE, the right of a peo27. Politiple to exist in the character and capacity of a sovereign cal existence. political state, is a right that can only be well understood, or properly explained, as it relates to the people or peoples of this country, by considering, first, the general nature of a political state; secondly, the political state of the Anglo-American colonies; and, thirdly, the political measures of the American Revolution. Of these then in their regular order. And, first

THE GENERAL NATURE OF A POLITICAL STATE, I shall now consider, but with reference to those things only which are absolutely essential to its existence as such: namely, a country, a people, and a government.

(1) A COUNTRY is obtained, either as an original acquisi- 8. Of the tion by discovery and settlement, or as a derivative acqui- country and sition by negotiation and purchase, or else by right of war title thereto.

and conquest.

Thence the title descends from generation to generation, as the common inheritance of the people. It was chiefly by the first and second of these methods that our title to this country was originally acquired.'

According to the theory of feudal sovereignty,—a theory adopted by the European states, and generally conceded by the original discoverers of the country in favor of the governments by whom they were respectively commissioned, the title to the portions within the jurisdictions of the British colonies, was considered as vested in the crown of Great Britain; the title to the remaining portions, by force of the same principle, being vested in the crown of Spain, or the crown of France. But the colonial struggle for independence, the American Revolution, put an end to the theory of feudal sovereignty on this side of the Atlantic, at least, and established, instead, that of the sovereignty of the people of each state; and thence the prerogatives and regalities which before were conceded to the crown of Great Britain, became immediately and rightfully vested in them. And, therefore, it is held by our courts of the highest resort, that the people of each state, in their own sovereign right, are invested with the absolute title to all the territory, and to all the navigable waters and the soils

1 See Johnson v. McIntosh, 5 Pet. Cond. Rep. 537.

2 Id. 528 to 535.

Our

All the lands we hold were originally granted by the crown. whole country has been granted; and the grants purport to convey the soil as well as the right of dominion to the grantee. Here [in these grants] the absolute ownership is recognized as being in the crown, and to be granted by the crown, as the source of all title; and this extends as well to land covered by water as to dry land. * * * All grants of land, whether dry land or covered with water, are, for great public purposes, subject to the control of the sovereign power of the country.' Martin et al. v. Waddell, 16 Pet. 426. This is strictly in accordance with the principle of the British government, that all lands are holden of the king. In point of strict justice, however, the title of the king of England to this country, was but little better than that of the Pope of Rome, Alexander VI, who, as the successor of St. Peter and Vicegerent of God, granted the whole of this Western world to the crown of Castile and Arragon. See note to Vattel, L. of N. lib. 1., ? 208.

Martin et al. v. Waddell, 16 Pet. 416.

under them, within the jurisdiction of their state, for their own common use; subject only to the rights or powers which each state has delegated by the federal constitution to the government of the United States.1 The title to the territories acquired since the Revolution, originally vested in the United States; in trust, however, for such of the people of the several states as should settle therein, form new states, and, in the capacity of states, be admitted as co-equal members of the federal union.'

(2) A PEOPLE, while possessing those qualities which are 29. Whence common to their race, will derive that character which a people derive their nachiefly distinguishes them from every other people, from tional charthe nature and climate of their country. In proportion acter. as the country is of wide extent, of a diversified nature and variable climate, there will also arise, between the people of different sections, widely different customs, manners and institutions. This will inevitably be the case of a people who inhabit a vast continent, the geography and natural productions of which are infinitely varied, and hence they will greatly differ from a people who inhabit an island, where the climate and natural productions may

1 Id. 16 Pet. 410.

'Although the title to the soil under the tide waters of the bay [of San Francisco] was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future state, and when California was admitted into the Union upon equal terms with the other states, absolute property in, and dominion and sovereignty over, all soil under the tide waters within her limits, passed to the state, with the right to dispose of the title to any part of said soils, subject only to the paramount right of navigation over the waters, so far as such navigation might be required by the necessities of commerce with foreign nations or among the several states. Per. Mr. Justice Field, in Weber v. Harbor Commissioners, Sup. Ct. U. S. Central Law Journal, Vol. 1, No. 41, p. 513.

3 This subject is treated in a masterly manner by the great French philosopher, M. Victor Cousin, in his History of Modern Philosophy, Vol. 1, pp. 161 to 173 (Appleton's Ed., Wight's translåtion), tit. 'The Part of Geography in History.' Montesquieu, however, had previously made its consideration a distinguishing feature of his immortal work, "The Spirit of Laws.' See also the Federalist,' No. 2.

10. Ofgovernment.

vary but little, and the rising or setting of the sun may be witnessed by all at the very same moment.

Not the shortest of the pithy chapters of The Spirit of Laws, is rendered in these words-'If it be true that the temper of the mind, and the passions of the heart, are extremely different in different climates, the laws ought to be relative both to the variety of those passions, and to the variety of those tempers."

The natural and inevitable effects of the laws of the physical world should certainly not be overlooked, either by those who frame, or by those who sanction and adopt, the political constitutions of a country. For a law that may prove beneficial to the people of one section, may prove disastrous to the people of another. And therefore the laws, usages and customs, which have grown up with the people of a particular locality, should be allowed to remain in full force and effect concerning such matters as peculiarly relate to that people: such laws and customs having been approved by their wisdom and experience as conducive to their welfare and happiness; and the people of each section, as of each country, having a natural, inherent and inalienable right to govern themselves and to make their own laws, in relation to matters peculiarly and immediately affecting themselves.

Finally

(3) A GOVERNMENT of some sort is also essential to the existence of a political state. It will, therefore, here be proper to analyze and consider the principal foundations of government, and the logically possible theories respecting the same.

In every political society, the sovereignty (the supreme power, involving the right of final judgment and supreme command,) is either divided, or vested exclusively in the government or exclusively in the people. The fundamental maxim of our constitutions being that all political power is inherent in the people, and that all just government is 1 Montesquieu, S. of L. b. 14, c. 1. The remaining chapters of his 14th book are devoted to the diversities in question.

founded in their common will and consent, we shall here limit our analysis accordingly.

The sovereignty, or power of final decision and supreme 11. Analycommand, being vested in the people, the law of the state sis of the American system. is the common will of all; and the public government, called indifferently democratic or republican, is based upon the two necessarily coexistent principles of which popular sovereignty is composed: viz,

(a 1) Individual self-government, personal liberty; the right of a man to govern himself by his own judgment, in relation to things peculiarly concerning himself, and by his agreements with others and the laws of society, in relation to things of equal importance to all. Here all are necessarily equal in right; no respect can be paid to mere power; everything proceeds from individual liberty and moral responsibility. The public government must consequently rest upon

(a 2) Common Consent: which consent is either,

(61) Presumed-implied from the constituted order of things: and here, whatever the government or form of government at any time existing, the assent of the people thereto is presumed from, as implied in, the fact of their submission to it; so that any kind of government, monarchy, aristocracy or democracy, may rest in the common implied consent of the people. Or, this common consent is (b2) Expressed-written, as in our political constitutions: Whereby, either,

(c 1) The right of individual self-government is wholly ceded, aliened and subjected to the instituted government: a supreme power of final decision, as to what is right or what wrong, is, in all cases, vested in our rulers by a written organic law of which they are the final expounders. Or,

(c 2) The right of self-government is wholly reserved: the final decision of all matters, as a natural and inalienable right, is retained by each and every individual, and by each and every political community or state. Or,

(c 3) The right of self-government is partly ceded and partly reserved; that is, distinguished into an internal right