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No. 11.

Preliminary Book, part 1, tit. 2, chap. 3.

No. 11.

2. It is a rule, because it is the standard of what the law deems right and proper. It is also called a rule, to distinguish it from advice or counsel, which may be given even by an inferior; and the law is a precept which all are bound to obey.

3. The law is a rule of conduct. It is to regulate the actions of men. The law regards man as a citizen, who is bound to perform certain duties to his neighbor.

4. It must be prescribed, for, until it is made known, it has no binding authority. But if promulgated according to the rules established in such cases, it is binding, although it may be unknown. Laws are generally binding from their passage, that being a sufficient publication; but sometimes they are to take effect only from some time named. In general they are published in books and newspapers, by authority of the government, for the information of the people.

5. The law must be prescribed to all the citizens. It is not a transitory order, relating to an individual or to a particular object; it is a permanent, uniform rule, prescribed as to an object of general utility and of a common interest. The law considers the citizens in mass. It cannot apply to an individual, nor to a particular action, nor to a particular case. It is equal for all, whether it protects or punishes. All men are equal before the law. It is the constant practice of the national and state legislatures, however, to pass what are called private acts, such as to authorize the sale of lands, and a variety of other things; but these cannot, with any propriety, be called rules of conduct.

6. Laws must be made in a solemn manner by the sovereign authority, or by the supreme power in the state. They derive their binding force from this power alone. But it frequently happens that the power of making laws is delegated to other bodies, by those which derive their authority from the constitution. Municipal and other corporations make ordinances or laws, which have a binding force, though they derive

No. 12.

Preliminary Book, part 2, tit. 1.

No. 13.

their power wholly from the legislature. In a late case it was held that a law passed by the legislature, which required the sanction of the people at an election, was unconstitutional. (a)

7. The law must be made in conformity with the requirements of the constitution. If the forms prescribed by the constitution have not been observed, or the power have not been delegated to the legislative body, the act is unconstitutional and void.(b)

8. The law must have an object of common interest to all. It differs from orders or commands given by a legitimate authority, although they may be obligatory, because the law authorizes their execution. It differs also from judgments, which must always be given as to past actions, whereas the law provides only for the future.

12. Having shown that law is a rule prescribed by the supreme power or sovereignty of the state, and that it is a solemn declaration of the legislative power, it will be proper to inquire what is the sovereignty; what is the government of the United States; how laws are made, and how many kinds there are. These will be considered separately.

PART II.-OF SOVEREIGNTY.

13. This chapter will be divided into five sections: 1, what is sovereignty; 2, by whom it is to be exercised; 3, how it is divided; 4, what is the constitution of a state; 5, of the different forms of government.

TITLE I.-WHAT IS SOVEREIGNTY.

Sovereignty is that public authority which has no superior, and which commands in an independent civil

(a) Parker v. Commonwealth, 6 Penn. St. R. 507.
(b) Commonwealth v. Mann, 5 W. & S. 403, 419.

No. 14.

Preliminary Book, part 2, tit. 2, 3, 4.

No. 19.

society, ordering and directing what each must do, to acquire its ends. It is the union of all the powers; it is the power to do any and every thing in a state, without being accountable to any one; to make laws and execute them; to coin money; to impose and levy contributions; to declare war, or to make peace; to form treaties with foreign nations, etc.

TITLE II.—BY WHOM SOVEREIGNTY IS TO BE

EXERCISED.

14. Abstractedly, sovereignty belongs to the people, and resides essentially in the body of the nation. But the nation, from whom emanate all the powers of sovereignty, can exercise them only by delegation. Sovereignty cannot be exercised otherwise, except in small republics.

TITLE III.—HOW THE POWERS OF SOVEREIGNTY ARE DIVIDED.

15. If we analyze sovereignty, we find it composed of three powers, namely, the legislative, the executive, and the judicial.

16. The first, is the power to make new laws, to correct, repeal or abrogate the old.

17. The second, is the power to cause those laws to be executed or obeyed. This power is usually exercised by a single individual, known by the names of president, governor, emperor, king, etc.

18. The third, is the power to apply the law to particular facts; to judge of differences which arise among the citizens or inhabitants of the state, and to punish crimes. This is vested in courts of justice.

TITLE IV.-WHAT IS A CONSTITUTION.

19. A constitution is the fundamental law of the state, containing the principles upon which the government is founded, and regulating the division of the sovereign powers, directing to what persons each of

No. 20.

Preliminary Book, part 2, tit. 5.

No. 22.

these powers is to be confided, and the manner in which it is to be exercised.

The constitution is made by the authority of the people themselves, or their delegates specially authorized, and it can be changed only by the like power. The legislature, which is the creature of the constitution, cannot make any change in such fundamental law.

TITLE V.-OF THE DIFFERENT FORMS OF GOVERNMENT.

20. Government is the manner in which sovereignty is exercised in the state. It is the means adopted to put the fundamental law of the state in action. It is the function and the very end of the government to apply this fundamental law for the happiness and advantage of all the citizens; for the constitution of the state is the lawful expression of the wants and of the will of all. Hence follows this necessary consequence, that the government is the delegate of society, the state, or the nation. The people, being sovereign, may adopt any of the forms of government which have been devised among men.

21. There have been at all times, and there are now, different forms of government, the three principal of which are democracy, aristocracy, and monarchy. But these different forms are combined and subdivided to infinity. From the African prince, who disposes freely of the lives and properties of his subjects, to the European monarch, whose power is contained within much narrower bounds; from the savage cazique, who governs his tribe because he is the oldest man in it, to the republican magistrate who is elected by the free suffrage of his fellow citizens, we perceive an infinity of organic combinations.

22. When the sovereign power is exercised by the people in a body, or by a majority of the people, the government is called a democracy. In this form of

No. 23.

Preliminary Book, part 2, tit. 5.

No. 27.

government all men are equal in a political and civil point of view. Democracy is the complete triumph of the principle of equality. All the citizens must have an equality of rights and not merely of privileges.

23. When the sovereign power is exercised by a small number of persons, in their own right, exclusively from the rest of the people, this form of government is called an aristocracy. In an aristocratic country the rulers claim the power to govern in their own right, and not by delegation, as in a representative democracy. Aristocracy and slavery spring from the same root. The first is the parent of the second, for the master and slave appeared on the same day.

24. When the sovereign power is concentrated in the hands of a single magistrate, the government is a monarchy, whether it bear the name of an empire, a kingdom, a duchy, or any other.

25. But the sovereign power may be divided and combined in a thousand different ways; hence result mixed governments, such as are most of those of civilized nations. Indeed, it may with truth be observed that the constitution of each state, consisting in the manner in which the powers of sovereignty are divided, seldom remains the same for any great length of time. Its form varies more frequently than it would strike one at first blush, in consequence of the encroachments which are insensibly made by one branch of the government over the others. There are, besides these principal forms, a variety of governments, which will here be defined.

26. Theocracy is a government where the clergy exercise the sovereign power, under a pretence that it is the government of God, and under his immediate direction.(a)

27. Ochlogracy is a government where the authority

(a) Matter, De l'influence des mœurs sur les lois, et de l'influence des lois sur les mœurs, 189.

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