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erty to save the rest, and the sum of these sacrifices constitutes the sovereignty of the nation, whether the depository be king or representative.
§ 3. Laws in the United States.- In the United States the sovereignty is lodged in different depositories, and the limit to the powers of each is to be determined by reference to the constitutions of the nation and the states. By these instruments the sovereign people have delegated certain portions of the sovereignty to their agents, the legislature, the judiciary and the executive. Within the limits prescribed by these constitutions, the agents of the people exercise their functions; beyond those limits they have no power. In England the sovereignty of the people is lodged in fact in Parliament, which is said to be, in the matter of making and executing laws, omnipotent. The English courts have a duty to perform in interpreting statutes, but they have no power, as the courts of the United States have, to declare an act of the legislature inoperative and void because it infracts some clause of the constitution. This power of our courts startles some foreign jurists, who regard it as a dangerous anomaly in government. Experience has taught us that the security of person and property, and the permanence of our institutions, rest largely on this power.
§ 4. Laws and morals. We have been speaking of what is termed municipal law, which Blackstone has defined to be a rule of civil conduct prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong. Those things which we possess and enjoy under the protection of the law are our rights. Wrongs are those things which are done in violation of the rules of civil conduct prescribed by the supreme power of the state. Of moral right and obligation, of moral duty and moral wrong, this is not the place to speak. Municipal law deals with acts, morality deals with motives. Courts of law are not always courts of conscience. As Professor Amos says: “A man may be a bad husband, a bad father, a bad guardian, without violating a law. He may be an extortionate landlord, a wasteful tenant, a hard dealer, an unreliable tradesman, and law can not touch him. He may be a rascally politician, a demagogue and indolent aristocrat, and yet satisfy to the utmost the claims of the law.” So law, as we use the term in this treatise, is “a body of commands addressed to individual members of the human race forming the component elements of a state.”
$ 5. A right resting upon municipal or civil law can be enforced or vindicated by a court, and such a right implies a perfect obligation to do or forbear. A right resting upon moral or social laws may be valuable and its transgression may cause pain, suffering and discomfort, but it can not be enforced or vindicated by a court or by any positive sanction. It is the province of courts and lawyers to deal with rights of perfect obligation alone.
§ 6. Municipal Law. — The law, and herein we speak only of municipal law, prescribes certain rules of civil conduct. These rules are (1) for the protection of our persons, (2) for the protection of our property, (3) for the protection of our reputation. The value of these rules consists in the fact that they emanate from and are enforced by the whole people, acting through their legislatures, their courts and their executive officers. The entire physical power of a nation is pledged to their enforcement.
§ 7. The Law-making Power. — These rules of civil conduct are prescribed by the supreme power of the state. This supreme power is exercised in a despotism by a single ruler, such as the Czar. In a constitutional monarchy such as England, Germany and Italy, this power is lodged in the ruling sovereign and the legislature. In a republic, such as the United States, this power is subdivided. The supreme power of legislation is lodged in the legislative body and the executive, who may approve or veto a bill passed by the legislature. The supreme power of declaring what a legislative enactment means, in other words the power of interpretation, is lodged in the supreme court. The supreme power of enforcing the law rests with the executive. The value and permanence of our institutions depend upon the preservation to each of the departments, the legislative, the executive and the judiciary—its separate and appropriate functions.
$ 8. Good citizenship requires implicit obedience to the laws enacted by the legislature within the scope of its constitutional power, to the orders and decrees of the judiciary in all matters of which they have jurisdiction, to the commands of the executive in preserving the peace and enforcing the laws.
$ 9. The Supreme Court of the United States.Professor Maine says the Supreme Court of the United States is the unique and important contribution of America to the science of government. He speaks, of course, of its transcendent power to annul an act of the legislature approved by the executive, when, in the opinion of the court, the act in question is contrary to the provisions of the constitution. This power was disputed soon after the adoption of the constitution. It has never been denied since Chief Justice Marshall uttered those memorable words in his opinion in the case of Marbury v.Madison, 1 Cranch 177. He says: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other the court must decide on the operation of each. So, if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. If then the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the consitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes to the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the theory of our government, is entirely void is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is, in reality, effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.”
§ 10. Kinds of laws in the United States. As in Rome, as in England, and the United States, law is divided into written and unwritten. Justinian, speaking of Roman law, says: “Our law is written and unwritten, just as among the Greeks some of their laws were written and others not written. The written part consists of laws plebiscita, senatus-consulta, enactments of emperors, edicts of magistrates, and answers of jurisprudents.” Blackstone says: “The municipal law of England or the rule of civil conduct prescribed to the inhabitants of this kingdom may with sufficient propriety be divided into two kinds : The lex non scripta, the unwritten or common law, and the lex scripta, the written or statute law."
§ 11. Owing to the peculiar form of our government, our written laws are of different dignity and authority. Our national constitution declares that “the constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary