have proven that this is a desideratum in any scheme of self-government essential alike to the preservation of the liberty of the individual, the power of the states, and the perpetuity of the Union.

A learned advocate of codification has spoken of the Romans as "that magnificent people which once ruled the world by the sword, and have since held a half do

mous Scotch Historian, gives the following account in his history of Charles the Fifth: "The feudal form of government, with all the institutions which characterize it, was thus (in Spain) preserved entire in Castile and Aragon, as well as in all the kingdoms which depended on these crowns. There were certain peculiaities in their political constitutions which distinguished them from those of any other country in Europe.

"The royal prerogative, extremely limited in every feudal kingdom, was circumscribed, in Spain, within such narrow bounds, as reduced the power of the sovereign almost to nothing.

"The privileges of the nobility were great in proportion, and extended so far as to border on absolute independence.

"The immunities of the cities were likewise greater than in other feudal kingdoms. They possessed considerable influence in the cortes, and they aspired at obtaining more. *

"The form of government in Aragon was monarchical, but the genius and maxims of it were purely republican. The kings, who were long elective, retained only the shadow of power; the real exercise of it was in the cortes or parliament of the kingdom. This supreme assembly was composed of four different arms or members. The nobility of the first rank; the equestrian order, or nobility of the second class; the representatives of the cities and towns, whose right to place in the cortes, if we may give credit to the historians of Aragon, was coeval with the constitution; the ecclesiastical order, composed of the dignitaries of the church, together with the representatives of the inferior clergy. No law could pass in this assembly without the assent of every single member who had a right to vote. *

The Supreme Court or Justiza.-"Not satisfied with having erected such formidable barriers against the encroachments of the royal prerogative, nor willing to commit the sole guardianship of their liberties entirely to the vigilance and authority of an assembly, similar to the diets, states-general and parliaments, in which the other feudal nations have placed so much confidence, the Aragonese had recourse to an institution peculiar to themselves, and elected a justiza, or supreme judge. This

minion by the silent empire of law" (55); and even so, an American may point with pride to the triumphs of American genius in all the arts of peace and war; but I doubt not the grandest and most enduring achievement of this people is that which has crowned the first century of its existence, and is expressed in the post-bellum amendments to the national constitution, wherein is indeed accomplished the purpose intended by the framers of the original document-the establishment of equality and justice, the equality of all before the law, justice to all according to the forms of law-the essential principles of liberty.

magistrate, whose office bore some resemblance to that of the ephori in ancient Sparta, acted as the protector of the people and the comptroller of the prince. The person of the justiza was sacred, his power and jurisdiction almost unbounded. He was the supreme interpreter of the laws. Not only inferior judges, but the kings themselves, were bound to consult him in every doubtful case, and to receive his responses with implicit deference. An appeal lay to him from the royal judges, as well as from those appointed by the barons, within their respective territories.

The Nature of Allegiance.—“It is evident, from a bare enumeration of the privileges of the Aragonese cortes as well as of the rights belonging to the justiza, that a very small portion of power remained in the hands of the king. The Aragonese seem to have been solicitous that their monarchs should know and feel this state of impotence to which they were reduced. Even in swearing allegiance to their sovereign, an act which ought naturally to be accompanied with professions of submission and respect, they devised an oath in such a form as to remind him of his dependence on his subjects. 'We,' said the justiza to the king, in name of his high-spirited barons, 'who are each of us as good and who are altogether more powerful than you, promise obedience to your government, if you maintain our rights and liberties; but if not, not.' Conformably to this oath, they established it as a fundamental article in their constitution that, if the king should violate their rights and privileges, it was lawful for the people to disclaim him as their sovereign, and to elect another, even though a heathen, in his place." See 5 Wheat. (App.) p. 31, note 2; Chisholm v. Georgia, 2 Dall. (Justice Wilson's opinion), p. 460.

55 D. D. Field's Address to Am. Bar. Ass'n, 1889, p. 233.

This liberty is not the license of anarchy, but the wholesome liberty of citizenship. Neither is it the whim of the multitude. "It will be well," says Chief Justice Day, "if the people come to understand the difference between natural and constitutional freedom, before license becomes destructive of liberty" (56).

The municipal law of the United States is not the will of the people as passion or clamor may incline them, not the will of the mob or commune, but their deliberate and right judgment, expressed in conformity to the constitution, to which every man yields obedience, nor knows any other allegiance. The protection of the constitution attends every one everywhere, whatever be his position in society, his social or official position, his financial situation or his religious belief. Justice Field says truly. "The constitution is the shield which the arm of our blessed government holds at all times over every one, man, woman and child, in all its broad domain, wherever they may go and in whatever relations they may be placed" (57).

Truly sayeth one: "The old-time omnipotence of the English sovereign, succeeded in our day by the omnipotence of the English parliament, has no place in our political system, no analogue in our political vocabulary" (58).

56 Koehler v. Hill, 60 Iowa, 616.

57 County of Santa Clara v. Southern R. Co., 18 Fed. Rep. 398. 58 Const. Hist. in Am. Law, p. 286.

CHAPTER X.

THE PUBLIC DOMAIN.

§ 143. Growth of colonial union. The problem of achieving independence, and establishing a republican form of government, was successfully worked out in the two decades which fall within the Revolutionary period. The very act of establishing a national union with a government co-extensive with the boundaries of all the states brought with it problems not capable of immediate solution in accordance with the same principles acted upon in building the nation.

The nature of the union existing between the people after the Declaration of Independence and prior to the adoption of the present constitution is not necessarily within the range of our discussion.

There was, however, important action taken during this period, which had an intimate relation to the action taken subsequently and upon important questions which subsequently arose in reference to our public domain. It will perhaps aid us in understanding these questions to make a few observations upon the state of the union prior to and during the revolutionary period.

§ 144. Epochs of the evolution of the national union. The time contemplated may be divided into four periods: First. A period antedating what may be termed the Revolutionary period, or the union of all the colonies.

Second. From 1765 to 1776 the struggle was to maintain their constitutional rights as British freemen, not to separate from the British crown.

Third. From 1776 to 1783 the struggle was for independence and a closer unity.

Fourth. From 1777 to 1789 was the period of evolution of the national constitution (1).

Opinions will naturally differ as to the nature of many of the acts taken, as to whether they were taken as one people, united under the bonds of society, or whether the action was taken as thirteen independent colony states. It is safe, however, to assert that during no period of this time had any of the states individually assumed and exercised the attributes of independent states, and assumed the station of an independent nation (2).

This same

§ 145. Ante-revolutionary conventions. period of time presents various phases of political unity. Long before any thought of forcible resistance entered the minds of the colonists, and while they were in apparent harmony with the mother country, the colonists united themselves by an additional bond other than that implied by the relation of common subjects of one sovereign. It will be useful in this connection to observe what has been heretofore alluded to, that the selection of a common personal sovereign was not considered upon feudal principles to be a surrender of national integrity. The same may be said of a league or alliance for mutual protection by way of offensive or defensive action.

1 See Downs v. Bidwell, 182 U. S. 249.

2 Seo Downs v. Bidwell, 182 U. S. 250-Harlan, J., dissent, p. 276.