in respect to the powers confided to each, and dependent in all other cases.1 Strictly speaking, in our republican forms of government the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each State, not granted to any of its public functionaries, is in the people of the State, 2

§ 209. There is another mode in which we speak of a state as sovereign, and that is in reference to foreign states. Whatever may be the internal organization of the government of any state, if it has the sole power of governing itself and is not dependent upon any foreign state, it is called a sovereign state; that is, it is a state having the same rights, privileges, and powers as other independent states. It is in this sense that the term is generally used in treatises and discussions on the law of nations. A full consideration of this subject will more properly find place in some future page." 8

§ 210. Now it is apparent that none of the colonies before the Revolution were, in the most large and general sense, independent or sovereign communities. They were all orignally settled under, and subjected to, the British crown.

1 3 Dall. 93, per Iredell, J.; 2 Dall. 455, 457, per Wilson, J. 2 2 Dall. 471, 472, per Jay, C. J.

Their powers and

Mr. J. Q. Adams, in his oration on the 4th of July, 1831, published after the preparation of these Commentaries, uses the following language: "It is not true that there must reside in all governments an absolute, uncontrollable, irresistible, and despotic power; nor is such power in any manner essential to sovereignty. Uncontrollable power exists in no government on earth. The sternest despotisms in any region and in every age of the world are and have been under perpetual control. Unlimited power belongs not to man; and rotten will be the foundation of every government leaning upon such a maxim for its support. Least of all can it be predicated of a government professing to be founded upon an original compact. The pretence of an absolute, irresistible despotic power, existing in every government somewhere, is incompatible with the first principles of natural right."

* Dr. Rush, in a political communication, 1786, uses the term "sovereignty" in another and somewhat more limited sense. He says, "The people of America have mistaken the meaning of the word 'sovereignty.' Hence each State pretends to be sovereign. In Europe it is applied to those states which possess the power of making war and peace, of forming treaties, and the like. As this power belongs only to Congress, they are the only sovereign power in the United States. We commit a similar mistake in our ideas of the word 'independent.' No individual State, as such, has any claim to independence. She is independent only in a union with her sister States in Congress." 1 Amer. Museum, 8, 9. Dr. Barton, on the other hand, in a similar essay, explains the operation of the system of the confederation in the manner which has been given in the text. 1 Amer. Museum, 13, 14.

42 Dall. 471, per Jay, C. J.

authorities were derived from and limited by their respective charters. All or nearly all of these charters controlled their legislation by prohibiting them from making laws repugnant or contrary to those of England. The crown, in many of them, possessed a negative upon their legislation, as well as the exclusive appointment of their superior officers; and a right of revision, by way of appeal, of the judgments of their courts.1 In their most solemn declarations of rights, they admitted themselves bound, as British subjects, to allegiance to the British crown; and as such, they claimed to be entitled to all the rights, liberties, and immunities of freeborn British subjects. They denied all power of taxation, except by their own colonial legislatures; but at the same time they admitted themselves bound by acts of the British Parliament for the regulation of external commerce, so as to secure the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. So far as respects foreign states, the colonies were not, in the sense of the laws of nations, sovereign states, but mere dependencies of Great Britain. They could make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor in any other shape act, as sovereigns, in the negotiations usual between independent states. In respect to each other, they stood in the common relation of British subjects; the legislation of neither could be controlled by any other; but there was a common subjection to the British crown. If in any sense they might claim the attributes of sovereignty, it was only in that subordinate sense to which we have alluded as exercising within a limited extent certain usual powers of sovereignty. They did not even affect to claim a local allegiance.1

§ 211. In the next place, the colonies did not severally act for themselves, and proclaim their own independence. It is true 2 that some of the States had previously formed incipient governments for themselves; but it was done in compliance with the recommendations of Congress. 5 Virginia, on the 29th of June,

1 See Marshall's Hist. of Colonies, p. 483; Journals of Congress, 1774, p. 29.

2 Journal of Congress, 1774, pp. 27, 29, 38, 39; 1775, pp. 152, 156; Marshall's Hist. of Colonies, ch. 14, pp. 412, 483.

8 1 Chalmers's Annals, 686, 687; 2 Dall. 470, per Jay, C. J.

4 Journal of Congress, 1776, p. 282; 2 Haz. Col. 591; Marsh. Colonies, App. No. 3, p. 469.

• Journal of Congress, 1775, pp. 115, 231, 235, 279; 1 Pitk. Hist. 351, 355; Marsh.

1

66

es

1776, by a convention of delegates, declared "the government of this country, as formerly exercised under the crown of Great Britain, totally dissolved;" and proceeded to form a new constitution of government. New Hampshire also formed a government in December, 1775, which was manifestly intended to be temporary, "during (as they said) the unhappy and unnatural contest with Great Britain." New Jersey, too, established a frame of government on the 2d of July, 1776; but it was expressly declared that it should be void upon a reconciliation with Great Britain. And South Carolina, in March, 1776, adopted a constitution of government; but this was, in like manner, tablished until an accommodation between Great Britain and America could be obtained." But the declaration of independence of all the colonies was the united act of all. It was "a declaration by the representatives of the United States of America in Congress assembled;" "by the delegates appointed by the good people of the colonics," as in a prior declaration of rights they were called. It was not an act done by the State governments then organized, nor by persons chosen by them. It was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives, chosen for that among other purposes. It was not an act competent to the State governments, or any of them, as organized under their charters, to adopt. Those charters neither contemplated the case nor provided for it. It was an act of original, inherent sovereignty by the people themselves, resulting from their right to change the form of government, and to institute a new one, whenever necessary for their safety and happiness. So the Declaration of Independence treats it. No State had presumed of itself to form a new government, or to provide for the exigencies of the times, without consulting Congress on the subject; and when any acted, it was in pursuance of the recommendation of Congress. It was, therefore, the achievement of the whole for the benefit of the whole. The people of the united colonies made the united colonies free Colon. ch. 14, pp. 441, 447; 9 Hening, Stat. 112, 113, ; 9 Dane's Abridg. App. § 5, P. 16.

5

1 2 Belk. N. Hamp. ch. 25, pp. 306, 308, 318; 1 Pitk. Hist. 351, 355.

2 Stokes's Hist. Colon. 51, 75.

8 Stokes's Hist. Colon. 105; 1 Pith. Hist. 355.

✦ Journal, 1776, p. 241; Journal, 1774, pp. 27, 45.

6 2 Dall. 470, 471, per Jay, C. J.; 9 Dane's Abridg. App. §§ 12, 13, pp. 23, 24.

and independent States, and absolved them from all allegiance to the British crown. The Declaration of Independence has accordingly always been treated as an act of paramount and sovereign authority, complete and perfect per se, and ipso facto working an entire dissolution of all political connection with, and allegiance to, Great Britain. And this, not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice.1

§ 212. In the debates in the South Carolina legislature, in January, 1788, respecting the propriety of calling a convention of the people to ratify or reject the Constitution, a distinguished statesman 2 used the following language: "This admirable manifesto (that is, the Declaration of Independence) sufficiently refutes the doctrine of the individual sovereignty and independence of the several States. In that declaration the several States are not even enumerated; but, after reciting in nervous language and with convincing arguments our right to independence, and the tyranny which compelled us to assert it, the declaration is made in the following words: 'We, therefore, the representatives of the United States, &c., do, in the name, &c., of the good people of these colonies, solemnly publish, &c., that these united colonies are, and of right ought to be, free and independent States.' The separate independence and individual sovereignty of the several States were never thought of by the enlightened band of patriots who framed this declaration. The several States are not even mentioned by name in any part, as if it was intended to impress the maxim on America that our freedom and independence arose from our union, and that without it we could never be free or independent. Let us then consider all attempts to weaken this union, by maintaining that each State is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses." 8

1 2 Dallas R. 470.

2 Mr. Charles Cotesworth Pinckney.

8 Debates in South Carolina, 1788, printed by A. E. Miller, Charleston, 1831, pp. 43, 44. Mr. Adams, in his oration on the 4th of July, 1831, which is valuable for its views of constitutional principles, insists upon the same doctrine at considerable length. Though it has been published since the original preparation of these lectures, I gladly avail myself of an opportunity to use his authority in corroboration of the same views. "The union of the colonies had preceded this declaration [of independence], and even

§ 213. In the next place, we have seen that the power to do this act was not derived from the State governments, nor was it done generally with their co-operation. The question then naturally presents itself, if it is to be considered as a national act, in what manner did the colonies become a nation, and in what manner did Congress become possessed of this national power? The true answer must be, that as soon as Congress assumed powers and passed measures which were in their nature national, to that extent the people, from whose acquiescence and consent they took effect, must be considered as agreeing to form a nation.1 The Congress of 1774, looking at the general terms of the commissions under which the delegates were appointed, seem to have possessed the power of concerting such measures as they deemed best to redress the grievances and preserve the rights and liberties of all the colonies. Their duties seem to have been principally of an advisory nature; but the exigencies of the times led them rather to follow out the wishes and objects of their constituents, than scrupulously to examine the words in which their authority was communicated.2 The Congress of 1775 and 1776 were clothed with more ample powers, and the language of their commissions generally was sufficiently broad to embrace the right to pass measures of a national character and obligation. The caution necessary at that period of the Revolutionary struggle rendered that language more guarded than the objects really in view would justify; but it was foreseen that the spirit of the people would eagerly second every measure adopted to further a general union and resistance against the British claims. The Congress of 1775 the commencement of the war. The declaration was joint, that the united colonies were free and independent States, but not that any one of them was a free and independent State, separate from the rest." "The Declaration of Independence was a social compact, by which the whole people covenanted with each citizen, and each citizen with the whole people, that the united colonies were, and of right ought to be, free and independent states. To this compact, union was as vital as freedom or independence. The Declaration of Independence announced the severance of the thirteen united colonies from the rest of the British Empire, and the existence of their people, from that day forth, as an independent nation. The people of all the colonies, speaking by their representatives, constituted themselves one moral person before the face of their fellow-men. The Declaration of Independence was not a declaration of liberty merely acquired, nor was it a form of government. The people of the colonies were already free, and their forms of government were various. They were all colonies of a monarchy. The king of Great Britain was their common sovereign." 13 Dall. R. 80, 81, 90, 91, 109, 110, 111, 117.

23 Dall. R. 91.