therefore, as to him, or regarded as the right of a natural person, it is the result of a law in the strict sense; although the possession of the power by the collective mass of which he forms a part is anterior to all law in the strict sense. In this instance political liberty is a legal right of a private person; though existing by public law.

In other states, that right of action, which is here called political liberty, may be so enjoyed by a few or by one, that those few or that one must be regarded as individually identified with the state, or the supreme source of law, independently of any other person or persons; and political liberty, not being exercised by any who are individually subject to the state, or to those who possess its power, must be said to have no legal existence; that is, though the right must exist somewhere, it is not created by law in the primary sense. The possession of the right is said to be ascertained by public law, but by law only in the sense of the statement of a fact or condition.'

§ 354. There is then a distinction in the mode of existence of political states which is more material, in determining the nature of freedom in those states, than any derived from those differences between forms of government which distinguish them as republican, monarchical, aristocratic, democratic states. This distinction is founded on a difference in the location of the ultimate sovereign power; and by it all states can be distinguished into two classes, viz.:

First Those wherein the ultimate sovereign power is by fact and law vested in the nation at large, or in individuals of that nation, who are at the same time politically and legally, as individuals, the subjects of that power.

Second Those wherein that power is by fact and law vested in a single individual, or in a limited number of persons, distinct in political and legal relations from the body of the nation, and not individually subject to any other law, in the strict sense, than that proceeding from themselves.2

'In jurisprudence, the location of sovereign power is a question of fact. In an ethical view, the fact is according to the moral judgment of the observer. Compare the method of reasoning in Lieber's Political Ethics, B. 2, ch. 6.

'Lieber's Pol. Eth., vol. 1, p. 404, note citing Arist. Pol. iii. 7, 1 Ethics, viii. 12, ́

§ 355. The name republic or commonwealth, which has been applied without much discrimination to many very various forms of a state, can with propriety be given only to states of the first class above described. In those of the second class, the state power, or the sovereignty, has a private character, the nature of a private right; though above all rights conferred by the law in its ordinary sense. If by the constitution of a state is meant merely the legal recognition of the existing investiture of sovereignty, a state of either class may be said to have a constitution; but in those of the second it will be only equivalent to the simple fact of the possession of sovereign power. In the first class of states only, it acquires the character of a law; since each individual, participating in the possession of supreme power, or enjoying this political liberty, holds that political right by the expressed will of an integral sovereign personality, to which he is subject. In such states, therefore, there is a true law, coexistent with the fact of the investment of sover

vol. II. p.64, A. B.Casaubon. M. De Tracy's commentary on Montesquieu's Spirit of Laws; Phila. 1811, page 12: "Confining myself, then, wholly to the fundamental principles of civil society, disregarding the difference of forms, neither censuring nor approving any, I will divide all governments into two classes, one of these I will denominate national, in which social rights are common to all (nationaux ou de droit commun); the other special, establishing or recognizing particular or unequal rights.

"In whatever manner governments may be organized, I shall place in the first class all those which recognize the principle, that all rights and power originate in, reside in, and belong to, the entire body of the people or nation; and that none exists but what is derived from and exercised by the nation; those, in short, which explicitly and without reserve maintain the maxim expressed in the parliament of Paris, in the month of October, 1788, by one of its members, namely, Magistrates, as magistrates, have only duties to perform (n'ont que des devoirs); citizens alone have rights (les citoyens seuls ont les droits); understanding by the term magistrate, any person whatever who is invested with a public function.

*

(p. 13) "On the other hand, I call all those special governments, whatever may be their forms, where any other sources of power or rights, than the general rule of the nation, are admitted as legitimate; such as divine authority, conquest, birth in a particular place or tribe, mutual articles of agreement, a social compact, manifest or tacit, where the parties enter into stipulations like powers foreign to each other," &c. See this distinction adopted by Lanjuinais' Constitutions, tom. 1, pp. 13, 14.

See also Sir William Temple's Essay on Government, p. 2, and a somewhat similar distinction by Grotius, B. et P., L. i., 3, 12,L. ii. 6, 3, between regna patrimonialia and usufructualia; rejected by Heineccius, J. Nat. et Gen., L. 2, c. 7, § 147.

1P. A. Jay, in Report N. Y. Const. Conven. of 1821, p. 200.

Acts of Vienna Congress; June, 1820, art. 57. "As the German Confederacy, with the exception of the free cities, is composed of sovereign princes, so must in consequence of this fundamental idea the collected power of the state remain united in the

eignty, which is the cause of the law.

The public law, which is mainly a law in the secondary sense, the statement of a fact, or of a mode of action, and the private law, which is mainly a law in the primary sense,—a rule of action, here become, to a certain degree, identified. Only in this class of states can it be said that the constitution of the state establishes political freedom, or political liberty, as the right of an individual subject or citizen; and in such States, this liberty, though a private right, regarded as attaching to that individual, exists by public, rather than by private law.

§ 356. Freedom of the individual in social relations, or civil liberty, according to the definition above given, which is freedom by private law, may evidently vary greatly in its nature or quality of privilege; since it may include a greater or less variety of rights of action in those relations. This freedom must, to some degree, exist in every state; since rights of persons arise in every relation established by law. When the idea of political liberty, as above defined, is excluded from the definition of civil liberty, it is evident that any degree of civil liberty which can practically exist in one of the above described classes of states, may also exist in the other. But in neither class of states, more than in the other, does any particular degree of this freedom necessarily exist; because in each it depends directly upon the will of a sovereignty personally distinct from the individual subject. But in the first class of states,-while it is equally dependent on the sovereignty of the nation,-the more general the extent and security of political freedom, or the more widely national the constitutional sovereignty, the more probable is it that a high degree of civil liberty will be found to accompany political; or to be possessed by those at least who by

ruler of the state, and the sovereign by the constitution can be bound to co-operate with the chambers, only in the practice of definite rights."

Art. 58. The sovereign princes united in the confederacy shall be hindered or limited, in their federal obligations, by no provincial constitution.

North Brit. Rev., Aug. 1855, p. 229, Am. Repr.-"Our position, that in every mediæval state the governing body had a locus standi of its own which it was constitutionally entitled to defend against the public will," &c.

2

Lex facit quod ipse sit Rex.-Bracton, L. 1, fol. 5; L. 3, fol. 107.

National not being here used in distinction from federal, as in the preceding chapter, but in distinction from private or special, as those terms are employed by M. de Tracy in the note on the last page.

the public law possess political liberty; since in this class of states, the public law gives to the subjects of private law, or to a large proportion of the subjects of private law, the right to participate, in a greater or less degree, in making that law.' Civil and political liberty, as rights of persons, according to the definitions here given, are therefore intimately connected, though not necessarily coexistent. And it is only in states of the first class that civil or social liberty can have a constitutional foundation; that is, an existence connected with the public law.2

3

§ 357. In a state of the widest national basis, or most popular constitution of sovereignty, wherein political rights are most widely and equally distributed, the liberty of the individual subject or citizen is ever in fact dependent by public law on the will of the majority of those who equally share those rights; though his equality in the possession of political power is a bulwark to each one against a diminution of his civil liberty by that will. In every state the more intimate the connection between the possessor of sovereignty and the mechanical Government, or the instruments of the ordinary government of the state, the greater must be the facility for a legal invasion of the liberty of the individual subject, as previously recognized by law; or the easier the process by which the law, public or private, which defines his rights, may be changed. In states of the second class, this connection is absolute identity;"

66

'Penn's Preface to his frame of government for Pennsylvania, 1682. Marshall's Life of Washington, 1 vol., note iv. Thirdly, I know what is said by the several admirers of monarchy, aristocracy, and democracy, which are the rule of one, a few, and many, and are the three common ideas of government when men discourse on the subject. But I choose to solve the controversy with this small distinction, and it belongs to all three, any government is free to the people under it (whatever be the frame) where the laws rule and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion."

2

Lanjuinais' Constitutions, t. 1, p. 97, "S'il n'y a des lois constitutionelles, ou de moins politiques, les droits privés, pour les quelles tout existe, n'ont point de garantie." This is his translation of Bacon's-sub tutela juris publici latet jus privatum.

n.

3 M. Benj. Constant; Coll. des Ouvrages Politiques; Paris, 1818, Tom. 1, p. 174, "M. de Montesquieu, comme la plupart des ecrivains politiques, me semble avoir confondu deux choses, la liberté et la garantie. Les droits individuels, c'est la liberté : les droits sociaux, c'est la garantie. L'axiome de la souveraineté du peuple a été considéré comme un principle de liberté; c'est un principle de garantie. Il est destiné à empêcher un individu de s'emparer de l'autorité qui n'appartient qu'à l'association entière; mais il ne décide rien sur la nature et les limites de cette autorité."

The form of government becomes merely what has of late been denominated bureaucracy. See Lieber, Civil Lib. and Self-Gov., vol. I., p. 182, and Polit. Eth. vol. I., p. 397.

but in those of the first class, or of the national character, the more widely national the possession of sovereignty, or, the larger the actual and relative number of the persons holding political rights, and the greater the equality of those rights, the stronger is the natural necessity for a Government, i. e., a politically organized instrument of government, distinct from the national possession of original sovereign power, though dependent upon it for its existence. In such states the word constitution has a more extended meaning than it can have in the public law of states of the other class; since it includes a law in the strict sense, under which the Government is constituted; and by determining the connection of that Government with the ultimate sovereignty of the nation, the constitution, in this case, gives to the political liberty of the individual still more of the nature of a legal right. Since such a state is republican, by the existence of political freedom, as the right of individual members of the nation, under law properly so called, the Government in this case is republican, whatever its form, when the political right of the individual subject continues to be exercised, in manifesting the supreme national will, independently of the legislative power of such constituted Government, which can only be in the ordinary creation and continuance of the actual agents or instruments of government.' When civil freedom is made by the sovereign power independent of the mechanical Government, it acquires a constitutional character; for it can only be infringed by a change in the constitution of the Government, or the public law under which that Government exists; and in such a constitution there is a part which is truly private law, as well as public law.

§ 358. Since all rights of natural persons in a civil state are to be considered, in law, as finally dependent on the will of the sovereign power, it is of the first importance, in a legal view of

1 Mr. Calhoun, in his Disquisition on Government, 1 Works, p. 8, considers that the Government is in all instances necessarily identical with the original possessor of national or sovereign power, though he there speaks of the possibility of a constitution controlling such a Government; and, on page 12, of the right of suffrage as a power above that of the Government. In his Essay on the Constitution of the U. S., he speaks of the sovereign power as being in "the people."