time the existence of that sovereignty is part of the customary or unwritten jurisprudence of the land, whatever may have been its comparative duration; that jurisprudence being entirely historical, as opposed to analytical; or, nothing else than the mere history of the acquisition and continued possession of sovereign power.

§ 335. The events which may be regarded as the continuous act by which these Constitutions were produced, and the words and expressions which made part of those acts and of their record, must determine the existence of that sovereignty which has given these Constitutions their force. But since the political significance of all events, not resulting from positive law, must always be liable to variety of appreciation, in view of different doctrines of political expediency, different political theories may be derived from those events, leading to different juristical views of the legal force and extent of the provisions of these Constitutions. For this reason every historical narrative of these events must be liable to exception in view of some one of those theories, or, to change the form of expression, the narration will be also the exposition of some of those theories.

§ 336. The nature of civil government and of positive law is such that in every state there must be some persons who actually hold, use or enjoy the power or right of the state or of civil society to create coercive rules of action for individual members of the state, and some whose legal liberty of action is determined by those rules."

1 Austin's Prov. Jurisp., p. 255. "An independent political society is divisible into two portions; namely, the portion of its members which is sovereign or supreme, and the portion of its members which is merely subject. The sovereignty can hardly reside in all the members of society, for it can hardly happen that some of the members shall not be naturally incompetent to exercise sovereign powers," &c.

Papers, &c., Juridical Soc., Vol. I. Part I., London, 1855, p. 30. On the Conception of Sovereignty, &c., by A. S. Maine, LL.D. "First then, the human superior, who is to be sovereign, must be determinute. He need not be a single person or monarch. There can be no grosser mistake than this, though it is constantly perpetrated by jurists whose place of birth leads them to associate "sovereignty" with "despotism," and who are perpetually committing themselves to propositions which, if construed rigorously, would either deny the existence of governments like our own and that of the United States, or at all events brand them with the stigma of illegitimacy. Nor again can "sovereignty" be said to reside in the entire community--an error the exact opposite of the misapprehension just alluded to, and one to which French writers on public law seem especially liable. Their meaning may perhaps be that no body of individuals,

Though the word people, employed in these Constitutions, may, in a certain ethical and political sense, be taken to mean the whole body of the inhabitants of certain districts, or an aggregate of natural persons constituting a portion of civil society, and each one being, in some undetermined manner, represented in exercising sovereignty,' it is yet evident that only a portion of the adult male inhabitants have in fact exercised this supreme or sovereign power of constituting governments and laws.2

§ 337. There had always been a distinguishable portion of the individual inhabitants of the several colonies, who, as freemen or electors-persons possessing an elective franchise-had always had a basal or primary political existence, belonging to them as uniting the national character of British subjects of English birth or descent and the local character of corporate members of a province or a chartered colony-a political existence, underlying all forms of local government, which had formerly been manifested for local municipal and colonial objects either by direct political action or through that of elected representatives, and the same persons had always claimed a right to manifest the same for national purposes, whenever called upon to fulfil the political duties of colonial members of the British nation.

§ 338. The colonial governments had been of various constitution, being dependent, in different degrees, on the power of the crown, according to the terms of their charters, patents, or other fundamental law, and all more or less distinctly founded on the basis claimed by the colonists of being governed, in local

except the entirety of the people, ought to this is something very different from the government corresponding with the desc are either monarchies or oligarchies, since are excluded from political functions."

nized as superior; but a dogma like of a fact; and the truth is that no s in the world. All known polities e most popular, women and minors

Compare Story's Comm. § 327, where the author flatly contradicts himself; assuming it to be a "general principle that the majority has at all times a legal right to govern the minority,"-yet saying that in fact it is always a minority which governs.

'Bouvier's Inst. of Am. Law, vol. I. p. 9. "Abstractedly, sovereignty belongs to the people and resides essentially in the body of the nation: but the nation, from whom emanate all the powers, can exercise them only by delegation."

So populus Romanus never signified all who were called Romans, see Smith's Dict. Antiq. voc. Plebes, Patricii.

matters, by laws to which they had themselves, in their political capacity, not individually, but as a political integer or corporate body, and by representation, assented.

But, as has been previously stated in the third chapter, although the colonial Governments were more or less republican or popular in their form, by this recognition of a portion of the people or inhabitants as having a distinct public capacity and character, yet the political constitution of the colonies resembled that of England in this-that the attributes of sovereignty, not held and exercised by the central imperial Government, were vested rather in a local Government, or a political organization holding legislative, judicial, and executive powers, than in the whole body of, or in any distinct portion of, the inhabitants of such colony.'

§ 339. Assuming these antecedents, it may be asserted that the political change which occurred in the events of the American Revolution, did not consist in the separation of the colonial Governments from that of Great Britain, and in the enlargement of their share of sovereign power by the accretion to each of those before held, over their several territory, by the imperial Government. Nor yet, upon the revolutionary separation of the colonies from the British empire, at whatever point of time that is considered to have taken place, did the people or inhabitants of the colonial territory resolve into a mass of natural persons without civil organization, who by the aggregate of their individual authority, under some law of nature, formed themselves into new political communities."

But in the Revolution these Governments became themselves essentially changed, so far as they had not been the instruments of the political action of t

the political existence of t

and they thereafter deter

rtion of the inhabitants, while

on continued without change; or themselves, either expressly

or by implication, the fundamental or supreme public law of the territory they occupied ; that is to say, all public law subordinate

1 Ante, § 131.

1 Curtis' Hist. of Cons. p. 16; Calhoun's Essay, 1 Works, 190; Paley's Moral and Pol. Phi., B. VI. c. 3. There was no illustration of the "social compact" doctrine as some have imagined; comp. 1 Tucker's BL App. p. 1-9.

to the fact of their possession of power, which was founded on revolution-the exercise of autonomic force, and was a law in the secondary sense only.

§ 340. The several acts composing the Revolution proceeded from bodies of various political character and authority, being partly the acts of legislative assemblies representing the popular element under the old local Governments, and partly of bodies entirely revolutionary in their origin and purpose, deriving their authority from the choice and sanction of local majorities among the electors of districts varying very much in geographical extent and political importance, as compared with the entire colonial district of which they formed a part. The individuals who, in the beginning of the Revolution, visibly exercised powers not held by the colonial Governments, under the previous order of things, or powers incompatible with the maintenance of that order, may have been members of those Governments at the time, and may thus have represented separate colonial polities, or what had been such under the public law of the empire. But by the revolutionary action they must have lost whatever in that political character represented the power of the crown, or the imperial authority, exercised in and for a distinct province or colony. So far as they had a political character derived from the previously recognized local element of sovereignty, they may still have claimed to represent a distinct polity, replacing, or succeeding to the provincial. But they could not have had, from that previous political character, the capacity to exercise powers which had not before been held by them in virtue of that local element of sovereignty, under the public law of the united empire. They could not, by virtue of their previous character of representatives of the local colonial authority, assume to hold powers which were, before, customarily invested in the central imperial Government.

To whatever degree they may have done so, it was as the agents of the freemen, or possessors of the elective franchise, who

'Graham's Hist. of U. S., vol. 3, p. 374, &c. G. T. Curtis' Hist. of Const. of U. S., vol. I., p. 7, and South. Quart. Rev., Jan. 1855, p. 177-180. Life of Elbridge Gerry, vol. I., ch. 4, 5.

now assumed supreme powers as original in themselves, acting in their corporate capacity of the political people of States succeeding to the political people of colonies. It was this portion of the people, in their primary form of organization as the political people of the several States and (by revolution) of a national state, who exercised sovereign power for national and local purposes, being the same individuals who had before exercised political powers and rights in the government of a township or county, and shared by representation in the colonial government; their numbers, in each new State, in proportion to the whole number of the inhabitants, depending on previous usage and existing laws. In those colonies where the local Governments had been more immediately derived from a political people, or portion of the inhabitants thus exercising political power, and which were even then distinguished as popular, the forms of their colonial chartered polity were continued. In other colonies, old forms of government more visibly gave way to the assumption of sovereignty by the people. But the political corporeity of the people, as it had existed in the colonial state and had there been manifested, continued' in the existence of the political people of one of the United States, thereafter exercising, under new forms of representation, independent and supreme powers; severally, in their particular colonial limits, for State purposes; and for national purposes, in union with the political people of the other revolted provinces."

1 Therefore the citizens of Mecklenburg County, North Carolina, did not become, on the 19th of May, 1775, what they declared themselves to be, when they resolved "that we do hereby declare ourselves a free and independent people, are, and of right ought to be, a self-governing association, under the control of no power other than that of our God and the General Government of the Congress; to the maintenance of which independence we solemnly pledge to each other our mutual co-operation, our lives, our fortunes and our most sacred honor."-And resolved, "that as we now acknowledge the existence and control of no law or legal officers, civil or military, within this country, we do hereby ordain and adopt," &c. See ante, laws of N. C., p. 296.

By resolution of the General Congress, May 10 and 15, 1776, “That it be recommended to the respective assemblies and conventions of the United States, where no government sufficient to the exigencies of their affairs has been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general." The Congress of the colony of New York, by resolution, May 31, 1777, expressed doubts of their powers in this respect, and that "it appertains of right solely to the people of this colony to determine said doubts." (1 R. S. of N. Y., p. 21, Prefatory to the first State Const.) Mr. Hildreth, vol. III., Hist. of U. S., p. 375,