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(5) Territory is inviolable, necessity being the only ground on which one sovereign can as such attempt to exercise authority in the territory of another sovereign with whom he is at peace.1

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(6) Interference by the sovereign of one country with the political relations of another country, is only justifiable when requisite for self-defence, or for the preservation of public peace.2

(7) The sea is open to all nations, but the ships of every civilized nation are to be regarded as part of the country whose flag they bear, and as equally inviolable.3

(8) No sovereign, therefore, is entitled, by his cruisers, to arrest and search the vessels of another sovereign on the high seas, unless (a) in pursuance of treaty, or (b) on probable cause shown of piracy, or (c) in the exercise, in time of war, of the belligerent right of seizing contraband articles.*

(9) While privateering, so far as it involves the scouring the seas by irresponsible private cruisers, applying to their own use their captures, is not in conformity with modern international law, this does not preclude the adoption by a belligerent of volunteer ships of war, and the issuing to them of letters of marque and reprisal; and so far from this right being inconsistent with liberal and humane civilization, it is conducive to the interests of such civilization by lessening the inducement to keep up immense permanent navies."

(10) Plunder of private property on the high seas is as wrong in principle as is plunder of private property on land; and, though the claims of belligerents to capture enemy's. goods when found on enemy's ships on the high seas may be too generally sanctioned to be now disputed, it should

1 Infra, § 146.

2 Infra, § 174.

3 Infra, § 188.

▲ Infra, §§ 194 et seq.
• Infra, § 201.

not be extended to seizure of neutral goods on enemy's ships, or of enemy's goods on neutral ships.1

(11) The rule that a neutral is precluded from furnishing to a belligerent armed troops and armed vessels is not to be strained so as to break up freedom of trade between neutrals and belligerents; nor is any nation obliged to establish, in order to promote non-intercourse of this class, a domestic police, inconsistent from its vastness, its rigor, and its expense, with free institutions, nor to undertake precautionary outlays and armaments which would make peace more burdensome and despotic than war.2

(12) Private international law is so far part of the common law, that it will be regarded as controlling all litigated questions which are not settled by peremptory local legislation.3

II. Then as to the public law of the United States.-That the constitution of the United States was the result neither of sovereign edict nor of philosophic speculation, but that it was the product of the occupation of our territory by a population of various nationalities, among whom the English race was dominant, is shown in detail in the fourth chapter of this volume. To several important consequences of this position,

1 Infra, § 218.


Infra, §§ 239, 251.

* Infra, §§ 252 et seq.

Infra, §§ 19, 359 et seq.

Mr. Freeman, in his Impressions of America, pp. 279 et seq., vindicates this position with much force in a passage which closes as follows: "Their work” (that of the framers of the constitution of the United States) "not being 'original' has lived on; it has gone through the most frightful of trials; but it abides, and promises long to abide. The 'original' work of the men" (the leaders of the French

Revolution) "who strove to break with the past in all things has another tale to tell. Revolutions, restorations, tyrannies, new schemes warranted to last forever, and breaking down at the first trial of their strength; such is the outcome of 'originality' in political institutions, a fruit of which happily neither branch of the English folk has tasted."

It was not until after the printing of the body of this work, that I met with the Johns Hopkins University Studies on Local Institutions, containing articles, bearing on the points above stated,

it may be sufficient at this point to advert in advance of the discussion hereafter to be undertaken.

(1) For the primary exposition of the constitution, we are to look, not to the individual opinions of members of the convention by which it was framed, but to the past and contemporaneous condition of the people from whom, as a continuous body, it emanated. Nor is even the opinion of the people, as declared, if we can suppose such a case, in assembly at any special crisis, to be regarded as such an exposition; since the nation, which is the author of laws, is, as we have seen, the nation in continuity, its present being the accumulation of its past.

(2) The perpetuity of the United States, as a union of perpetually sovereign states, is the result of conditions in themselves perpetual. (a) No such empire could permanently endure unless by distribution of local authority in local sovereignties; and the traditions of the United States require that the depositaries of such authority should be the states.2 The natural conditions of the country, taking into consideration the characteristics of the people, make its retention in a common system a necessity. The Alleghenies, the Missisippi

by Mr. H. B. Adams on the Germanic Origin of New England Towns, on Saxon Tithing Men in America, on Village Communities of Cape Anne, and on Norman Constables in Ameriica; by Mr. A. Shaw, on Local Government in Illinois; by Mr. E. Ingle, on Parish Institutions of Maryland; by Mr. J. Johnson, on Old Maryland Manors; by Mr. E. R. L. Gould, on Local Government in Pennsylvania; by Mr. B. J. Ramage on Local Government in South Carolina; and by Mr. A. Johnson, on the Genesis of a New England State. These essays are of great interest as illustrating the evolution of law as stated infra, §§ 16 et seq.

I may also call attention to an article on the constitution of the United

States, in the London Quarterly
Review, for January, 1884. In this
article, which did not appear until my
own chapter on the constitution was
printed, the reviewer adopts, as a
striking illustration of the position for
which I contend, the words of Profes-
sor Seeley, that the colonial assemblies
"were not formally instituted, but grew
up by themselves, because it was of
the nature of Englishmen to assemble."
1 Infra, §§ 359, 360, 611.
2 Supra, § 363.

River, the Rocky Mountains, do not divide, but cement. The perpetuity of these conditions was illustrated by the results of the secession movement of 1860. They showed that while there could be no separation without civil war, there could be no civil war without reunion.

(3) The constitution, as framed in 1790, was defective in failing to give expression to the national convictions in two important particulars. It left the people of the states open to encroachments on their personal rights by (a) the Federal government, and by (b) the State governments. The first of these defects was cured by the group of amendments adopted shortly after the constitution went into operation. The second defect was cured by the group of amendments which were adopted at the close of the civil war, and which protect the people of the states from state legislation establishing unjust discriminations, or taking away rights except by equitable settlement. The two lines of amendments do not alter the equipoises of the constitution. They declare, and do not modify, its essential meaning,' as they bring out in complete symmetry the system of which the constitution was the partial expression.2

(4) While the relations of the sovereign states which constitute the union to each other and to the Federal government continue constant, each sovereignty is in a condition of continual growth and development in the application of its powers within the boundaries of its own department. The boundaries remain indelible, perpetual, and inviolable. Forever unchanged endure the sovereignties of the people of the states, and the sovereignty of the Federal government supreme over all in its allotted sphere. But so far from the objects on which these sovereignties operate remaining unchanged, they cannot exist without change. While the

1 Infra, §§ 588, 595, et seq.

2 Infra, §§ 373, 380, 596.

Alleghenies, the Mississippi, and the Rocky Mountains, to recur to the analogy already given, remain unchanged, the valleys which they divide give each day new exhibitions of human activity, of energy, of endurance, and of inventiveness; and so while the people of the states, the states themselves, and the government of the United States, are fixed in limits which are perpetual and unsurmountable, there are no limits, within the departments assigned to them, to be placed on the development of their distinctive powers. It is this union of imperialism in the application of power in all matters not encroaching on human freedom, with limitation of power in all matters in which human freedom is concerned, which it is the object of the following pages in part to illustrate. And it is through the application of these two principles, constancy in the distribution of sovereignty, evolution in its exercise, that the meaning of our laws, whether constitutional or statutory, can best be sought.

For aid in the preparation of the Table of Cases and in the correction of proof, I am indebted to my nephew, Thomas I. Wharton, Esq., of the Philadelphia Bar.

F. W.


February 15, 1884.


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