1. the origin of law varies with the character or class of the government under which it is made. where all authority is concentrated in the hands of one man his will becomes law whenever expressed, or when expressed in some regular and formal way. more generally laws are originated, in our days, in civilized countries where there is a monarchial government, by the ruler in conjunction with representatives of the people or some classes of them. in point of fact, rulers are always obliged to regard the habits, traditions, and feelings of the people more or less, or they may be obliged by a revolution, or the intrigues of the ambitious founded on their discontent, to retire to private life. the real prominence of the people in their governments is constantly becoming greater in all civilized lands, and it seems highly probable that, before many generations have passed, all governments not founded on an acknowledgment of the sovereignty of the people will be incapable of maintaining themselves.
2. in the united states of america the source of all authority, and the origin of all law, is in the people alone. the fact that laws are made by representatives does not alter the principle at all. they are simply the substitutes or agents of the people. where there are many people any other than a representative democracy is impossible. these are chosen from among their equals, and when their term of office has expired return to the common level. if they are ambitious of more than one term of office they must take special care not to offend the majority that first elected them.
3. the first signal exercise of the law making power by the people was in the adoption of the constitution as the fundamental law. this established the character of the government, prescribed the duties and limits of the legislative and executive branches, and organized a third branch to watch over the action of the other two and keep it in harmony with[589] the constitution. this instrument then became the source or foundation of all special law. it is a comprehensive statement of the will of the people, but it may be changed or enlarged in a prescribed way. it is binding on all legislators and executives. whatever may be enacted or done by them not in accord with it is null and void; the supreme court being bound so to announce when the fact shall be proved before it. the constitution is the law of the land. any laws enacted by congress, or by state legislatures, not contrary to it, are valid and binding; but any attempt to set aside any of its provisions, or disregard its true intent, would be usurpation and a violation of the rights of the people. the term state sovereignty can, consequently, be true only in a limited and secondary sense, this being a higher sovereignty still.
4. the larger part of the general laws by which we are governed are made by congress, that body having been instituted to that special end. it is composed of a popular house, or one chosen directly by the people, and one more select, chosen by the state legislatures to represent their states as a whole. if the legislature represents the will of the people of the state accurately, as it always does unless some change in popular opinion takes place suddenly after it has been elected, the senators as well as representatives will embody the views of the people in their respective states. so we see that the people are sovereign and law really originates with them. laws, indeed, may be made by their agents that do not suit them; but, if they cannot induce them to repeal such laws by petition, remonstrance, or otherwise, at once, by waiting a little until the terms of such members expire they can replace them by others pledged to carry out their views. thus the general policy of the government is determined by the people at the general elections. they give the law to the law makers, and appoint the executives who will administer them in the spirit they approve. the whole matter is within their control as a point of power, and still more so from the natural deference[590] the representatives of the people feel toward the wishes of those on whose favor they depend. the deep indignation or contempt of their fellow men will seldom be incurred, even if they have no ambition for further electoral honors.
5. the treaties made by the president, which require to be ratified by the senate to become binding, and the approval of the house of representatives if money is required to carry them into effect—since only that branch can dispose of the property of the country, or originate laws for raising money—have also the force of general laws. the whole country is bound to act in conformity with their provisions. we have, then, three kinds of law, or laws from three different sources that are alike binding on the whole country: the constitution, which is unchangeable except by vote of the legislatures or conventions of three-fourths of the states; the laws of congress, which may be made and repealed at their pleasure; and treaty law, which involves the consent of a foreign state, but requires the assent of the president and one or both bodies of congress, and which may be abrogated or modified at the united pleasure of all the parties concerned in making it.
6. there is a fourth species of law more general still and more or less of which is often involved in treaties with foreign governments. this is the law of nations, or the principles acknowledged by all civilized nations as binding on them in their intercourse with each other. the only binding force it possesses is in the general practice of mankind, and the authority of public opinion. this is commonly effective, since all law depends really on the approval of the people for its efficacy, or at least on their silent submission if they disapprove.
7. in every state in the union the people elect a legislative body which makes such local laws as the people wish to be governed by, and as their special circumstances require; but they are not permitted to legislate on general questions, to make any law contrary to the constitution, or to the laws of congress, nor are its laws binding on any but the citizens of the state in which they are made, or such others as may be[591] residing there. each state has a constitution which determines the special organization of its government, and limits and defines the powers of its different branches; but it is required to be in harmony with the constitution of the united states. the constitution, legislature and officers of a state are determined by vote of its people.
8. after this examination we reach this conclusion: that there is no institution in the united states that has not been virtually established by the people, its fundamental law was adopted by them of their own free will and may be changed when they see fit; and that if all the laws, of whatever kind, that are binding on them, are not such as they prefer, they are, at least, originally responsible for them, and have in their hands the means of changing them within a reasonably short period. in fact their demand or the zeal of their representatives for their interests usually originates whatever laws are made. the constant general prosperity of the country since the establishment of the present government, the increase of intelligence and self respect among the people, and the beneficial influence exerted by the united states on the world tend to confirm and settle its principles and laws on a permanent foundation.
