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were hid. For it was then shown that there could be no division of the Union without civil war, and no civil war without a reunion in which the coördinate rights of the people of the states and of the United States should be recognized as perpetual. But this coördination of sovereignties is not the only great fact which the war-era disclosed as inherent in our system. (1) It disclosed, in addition, the imperial grandeur of the United States. As long as the true nature of the Union was obscured, it had comparatively little foreign influence, since it was looked upon as a league which might at any time dissolve. The exhibition of the fact that the Union is indissoluble, is, as we have seen,' the exhibition of a degree of national power and wealth which places the United States in the first rank of empires, and which gives her not only in the position of her citizens, but in her influence in international counsels, a weight proportionate to that high rank. (2) It disclosed the true relation of the people of the states to their governments. It was in defiance of all the traditions and convictions of the people that they were placed under the unbridled control of the legislation of the states. The incapacity of state legislatures to destroy personal rights is now as fully manifested, as, at the time of the adop tion of the first group of amendments, was the incapacity of congress to destroy personal rights. (3) While thus disclosing the immutability of Federal and state sovereignties, and the

one side, and the chance of good to be expected from the plan on the other?" (Ibid. 556.) Jay was one of the members of the New York convention by which the constitution was ratified, and united with Hamilton and Madison in the preparation of the Federalist; yet Jay, when secretary of foreign affairs, urged, with the assent of a majority of the confederate congress, at the very period when the constitution was before the states for consideration, the cession of the control of the Mississippi River to Spain. It was by this action more than by any other cause that the ratification of the con

stitution was imperilled in Virginia;
and nothing exhibits more clearly the
superiority of popular instinct as a
motive power to political speculation
than the fact that the people of the
entire country, north as well as south,
agreed in denouncing such a cession.
Congress sullenly receded, and the
negotiations were abandoned. Scarcely
twelve years had elapsed before, by
the cession of Louisiana by Spain to
France and then by France to the
United States, the United States took
possession not only of the Mississippi
River, but of the Mississippi Valley.
1 Supra, §§ 134, 588.


limitation of legislative power, both Federal and state, time has also disclosed the self-developing capacity of these sovereignties each in their particular spheres. The factors remain constant in their relations; each of them, however, grows in its department. There is immutability in the demarcation of these sovereignties; there is not only mutability, but perpetual growth in the exercise of each sovereignty. There is nothing strange in this. The more fully the coherence of men in society is recognized the more fully is recognized the self developing power of each individual man. So it is with the coördinate sovereignties existing indissolubly in this country. There has been evolved, for instance, in the people of the states, taking them individually, powers not conceived of at the framing of the constitution. There is not a person, no matter how obscure, in the most recently settled of our states, who has not open to him innumerable avenues of activity and of happiness which were unknown, even to the most wealthy and prosperous, in 1787. There is not a state, no matter how recently admitted to the Union, that cannot now, through its mines or its crops, move the markets of the world more perceptibly than could the whole Union in 1787. And there is not a state whose constitution does not contain general powers of legislation which, as has been the case with the power to establish schools, have not been found, as time flows on, to cover multitudes of objects which were not thought of when the powers were first given. And eminently has this been the case, as we have seen, with the constitution of the United States. The equipoise between state and Federal sovereignties continues substantially the same, yet the enumerated powers of the Federal government include a multitude of incidents not even imagined in 1787. The post-boy, passing twice a week between Boston and New York, has been succeeded by railroad-trains going twice a day between New York and San Francisco. Lines of railroad and lines of shipping have become so continuous that the regulation of international and interstate commerce covers now the land as much as it once covered the sea. The words "new states," in

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the clause for the admission of "new states into the Union," comprehended, in the eyes of those who transcribed it in this connection, only such states as should be framed from the territory then owned by the existing Union; it now comprehends a territory much larger than the whole of that Union as it then existed. The word "treaty" comprehends the process by which may be acquired illimitable territories to be thus carved up into states. The word "admiralty" no longer represents, as it did to the framers of the convention, and as it still does in England, jurisdiction over the high seas; it now, in the United States, takes within its scope lakes, rivers, and canals wherever interstate or foreign commerce extends.❜ The growth of credit, of wealth, and of population, has put within the control of the United States government military resources which, now that they have been once and finally displayed, will enable it not only to preserve hereafter its own territory intact, but to defy foreign aggression. Yet, with all this, the equipoise remains; the states retain their sovereignty, while the United States government is supreme in its allotted sphere. We have in this the combination of the two great factors by which alone can stable liberal governments be secured. The first of these is the guaranty of local and personal liberty, and the distribution of sovereignty in such territories as tradition or policy may set apart. The second is the illimitable evolution of power by the several possessors of sovereignty in their prescribed departments. In this way the principles vindicated in the prior pages are combined. On the one side, there is constancy in the relation of the factors of government; on the other side, the powers of these factors are evolved by the silent and spontaneous, yet salutary and potent, action of the people applying their capacities to their opportunities."

1 Supra, § 462.

2 See supra, § 523. See supra, § 380.


• Supra, §§ 14-17. As to evils consequent on disturbance of constitutional equipoise, see supra, § 377.



Statutes are at common law public or private, § 598.

Statutes classified as enabling, enlarging, restraining, and disabling, § 599.

And so as declaratory or corrective ; as penal or remedial; as imperative or directory, § 600.

Legislative functions cannot be transferred to people; otherwise as to special matters calling for popular advice, § 601.

Statutes take effect from day of execu

tive approval, § 602.

And from national antecedents and conditions, § 612.

Authoritative exposition to be followed, § 613.

Literal meaning when reasonable to be taken, § 614.

When construction is in doubt, the fairest and most beneficial preferred, § 615.

Common law and other statutes to be taken into consideration, § 616. Common law may help out statute, § 617.

Penal statutes to be strictly construed, § 618.

So of grants of franchises, § 619.

Statutes must follow constitutional limitations as to entitling, as to cumulation, and as to enactment, § | Prohibition implies penalty, and 603. penalty prohibition, § 620.

Construction to be distinguished from Titles may explain object, § 621. interpretation, § 604.

In this country construction modified by the existence of constitutional limitations, § 605.

Preamble not conclusive, § 622.

Repeal of prior statutes may be im

plied as well as express, § 623. Statutes may become obsolete, § 624.

Presumption in favor of constitu- Codes or statutes may absorb prior

tionality, § 606.

statutes or common law, § 625.

Statutes may be unconstitutional in Statutes may be cumulative, § 626. part, § 607.

Injustice and impolicy no ground for avoiding statute, § 608.

At common law repeal of repealing statute revives original statute, § 627.

Rights not to be taken away except by When clauses conflict, last clause is express enactment, § 609.

operative, § 628.

Statutes not to be construed as retro- | Division in sections has no logical spective, § 610.

Motives of legislators not admissible, but meaning to be gathered from words, § 611.

effect, § 629.

Statutes depend on judiciary for recog

nition, for comprehension, for application, and for enforcement, § 630.

Statutes are

law either

public or

§ 598. STATUTES, at common law, are either public, relating to matters concerning the public generally, or at common private, concerning exclusively private interest.1 The distinction is principally of interest from the private. fact that by the old law the courts took judicial notice of public but not of private statutes. In England the distinction has been done away with by the act of 13 and 14 Vict., c. 21, which provides that after 1850 all statutes are to be regarded as public, and are to be judicially noticed, unless the contrary be therein expressly declared. By the old law, also, a distinction was taken to the effect that a private statute does not bind strangers, whereas a public statute binds all the world, and this is declared by Chancellor Kent to be "a safe and just rule of construction," and the distinction has been adopted in New York. It has also been held that private statutes must be specially pleaded, which is not the case with public statutes. But in jurisdictions where all statutes are held to be public these distinctions vanish; and they have been held not to exist in cases where statutes, nominally private, are made by their terms to affect the community generally.'

1 Supra, § 13.

Com., J. P., 459; Dwarris, vol. ii. p. 471;

2 Kent's Com., i. 466; Lucy v. Le- Barington's Case, 8 Rep. 1366; Jackson vington, 1 Vent. 175.

3 Jackson v. Catlin, 2 Johns. 48; 8 Johns. 520; McKinnon v. Bliss, 21 N. Y. 206; supra, § 13.

4 Edinburgh R. R. v. Wauchope, 8 Cl. & F. 710. That a state statute legalizing elections held by the voters of a county as to liability on negotiable bonds is public, and therefore need not be specially pleaded, see Unity v. Burrage, 103 U. S. 447. As to judicial notice, see Whart. on Ev., §§ 276 et seq. "Private acts," says Mr. Sedgwick (Stat. Law, p. 27), "do not bind or conclude third parties or strangers; and they are not bound to take notice of a private act, though there be no general saving clause of their rights. Lucy v. Levington, 1 Vent. 175; Kent

Catlin, 2 Johns. 48; S. C., 8 Johns. 520. In England it is held that words of a statute applying to private rights do not affect those of the crown. This principle is well established, and is there considered indispensable to the security of the public rights. It has been recognized also in this country; and on this ground it was held in Pennsylvania in regard to Windmill Island in the Delaware

River opposite Philadelphia, though it was claimed under a legislative grant, that as the rights of the commonwealth were not ceded by the act, no title was acquired as against the state. Jones v. Tatham, 20 Penn. R. 398. But in this country generally, I should doubt whether this construction could be safely assumed as a uni

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