§ 341. This change of the possession and investiture of sovereign power was manifested by the united and several constitution of new organs of government, and the investiture and distribution of political powers, for several and united action, in and among such organs.. It did not and could not, as to either sphere of action, take place by a perfectly simultaneous or harmonious movement on the part of the political people of all the colonies at once, or through like instrumentalities in each. There may, however, be less difficulty in distinguishing the assumption of some of the powers of sovereignty for national purposes, and the united exercise of them by the people of the new States, than in distinguishing the several assumption by the people of those States, of powers used for local or State purposes.

In some of the colonies the powers of sovereignty formerly exercised by the colonial Governments could hardly be recognized as transferred to the political people of the new State, until after other sovereign powers, of a more national and external character, had been claimed and exercised by the same people as part of the people of the united colonies assuming a national character.'

§ 342. The American colonies, though under separate colonial Governments, each of which exercised or claimed some sovereign powers within their respective territories, or which shared with the imperial Government the possession and exercise of all sovereign powers within such territories, were, equally with the British islands, part of one and the same empire; and, as to each other, were of one nation, over which the residue of sovereign and national power, beyond that vested in the local Governments, was exercised in a single and undivided manner.

Their separation from the rest of that empire was a single political result, effected by the combined action of the political

says, after sketching the formation of State governments at this time, "for all practical purposes-even to the extent of alterations of the constitution, except in a few States, where different provisions were made-the sovereign power was vested in the respective State Legislatures, which, &c." This view is not generally adopted by jurists, unless of the southern State-rights school. Comp. South. Quar. Rev., April, 1853; review of Calhoun's Essay, p. 398.

1

Compare the facts stated in 3 Hildr., 374, Pitkin's Hist. of U. S. c. 6, 7.

people of the several colonies, manifesting an integral sovereignty by the assumption of that power over their united territories which had formerly been held over the same by the crown and parliament of England. So that while the attributes of sovereignty which had been severally exercised by the colonial Governments were continued in the several possession of the people of the States, and were increased by the several assumption of other powers, the same political people, by a joint assumption of other powers-the residue of sovereignty-and their exercise in a national character, for internal and external relations, presented themselves and all other inhabitants of the country as one people and a sovereign nation among other sovereign nations.1

§ 343. Since the individuals constituting the people, (as above discriminated from the mass of the inhabitants,) had never exercised political rights except as already organized into political bodies preëxisting under the colonial condition, they could never have acted in union for national purposes except as so primarily organized. They could not have established any general government without acting in the only form of political existence they had had; unless all forms of political organization had been dissolved. For the political capacity of no single individual or natural person was inherent or primordial in himself, but derived from the existence of the colonial corporate body; and it was only these corporate bodies which now, by the revolution, acquired a primordial existence, and held sovereign power by right of fact-right above law.'

Of necessity, therefore, the people of the United States, in combining together for the exercise of sovereign power for national purposes, have not acted as a homogeneous body of individuals, but as organized, for the purpose of such action, into primary political unities identical with those in which they have exercised the residue of sovereign powers severally, for the purposes of a State government.

11 Kent's Comm., page 201 ;-" The association of the American people into one body politic took place while they were colonies of the British Empire, and owed allegiance to the British crown."

De Tocqueville, Democ. in Am., vol. 1., ch. 5, (p. 51,) supposes that the people

§ 344. Where, under positive law, a number of persons together constitute a corporate body and where all, in determining the action of that body, have, by law, equal powers, the legal principle obtains that the body acts by the will of the majority, or, that the will of the majority is the will of the corporate body. But it is necessarily assumed that the people known as the people of the United States have a primordial existence as the people of the several States, and that, so corporately organized, they possess all their powers by right above law, or by law in the secondary sense only-the statement of the fact. The mode in which they hold or can exercise sovereign power is known only by its actual exercise. Therefore, to maintain the doctrine that the people of the United States have a corporate existence or a corporate possession of sovereign power for the purposes of an integral national existence, it is not necessary to assume that the action of that corporate body has been or would be determined by the will of the majority of the States or that the principle of action by majority is an element of their corporate existence. And the fact that this national power was exercised by the concurrent action of the people of all the States, and not by the action of the people of a majority of the States, does not indicate that the exercise of this power was the result of a federal union of the people of all the States, each holding the sum of sovereign power in severalty. Though, in fact, the revolutionary assumption of sovereignty over their united territory was a unanimous act, and though the corporate people of each State acted for that purpose freely and without compulsion from a majority, the sovereignty so exercised may still have been held by them as the constituent parts of an integral nation, and not in severalty. And it is impossible to say how

or freemen of each township constitute collectively the primordial political integer, and that its existence is independent of the collective people of the State. There is much in the early history of the N. E. colonies to justify this idea. But, since the revolution, there can be no doubt that in each State sovereignty is vested in the whole body of electors.

Refertur ad universos quod publice fit per majorem partem (Ulpian.) The public act of the majority is the act of all.

As is argued in Federalist No. 39 by Madison; and 1 Tucker's Blackstone, App., p. 146; 1 Calhoun's W., p. 150, 151; Baldwin's Const. Views, pp. 18-25.

that national power would have been exercised or manifested if any State or minority of States had refused to co-operate with the majority, in the assumption of national power.1

§ 345. The delegates in the Revolutionary General Congress which July 4th, 1776, "in the name and by the authority of the good people of these colonies," declared the "united colonies" to be "free and independent States," received their powers under electoral agencies differing greatly in their connection with the people whom they assumed to represent.

In or by the Confederation, the integral people of the United States exercised national power by the intervention of the same organs of government which they employed in their local or State Governments.3

In or by the Constitution, the same people, without a revolution, without any shifting of the seat of sovereign power,'— exercised national power by a Government instituted by the direct action of the people of each State.5

This nationality or integrity of the people of the United States, coexistent with a separate possession and exercise of sovereignty for local or State purposes, has continued in a

'Significant, in illustrating the abnormal condition of the revolted colonies, are the proceedings in the General Congress relative to the Parish of St. John's in Georgia, which sent a delegate three months before any were sent to represent that colony. Journals of the first Congress, May 13, 15, 27, 1775; and their reception of the Mecklenburg Declaration.

21 Curtis' Hist. of Cons., p. 13, note.

The same, p. 245. 1 Kent's Com. 208; Journ. Cong. May, 1775, p. 69–74.

An opposite doctrine has the authority of the opinion of the court in Dred Scott's case, 19 Howard, 441: "The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which, it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution."

* Federalist, No. 39, McCulloch vs. Maryland, 4 Wheat. R., 314. 1 Curtis' Hist. of the Const., p, 373. Resolution of the Congress of the Confederation, 28 Sept., 1787, that the report of a constitution for the people of the United States made by the convention "with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof, in conformity to the resolves of the convention made and provided in that case." And resolution of Sept. 13, 1788, reciting the above and declaring the constitution to have been ratified accordingly. Journals of Congress and 1 Rev. Stat. of New York, p. 17.

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manner and form more or less distinctly recognized, from the period of the separation of the colonies from the mother country to the present; and no former colony, nor any State, nor the people of such, has appeared in international action with foreign states, or in intercourse with the other colonies or States, as using severally all the powers inherent in sovereignty; while they have each, that is, the people of each, used or held some of those powers independently and without claim of control from each other or any majority of the whole."

§ 346. If the language of the Constitution does not base its authority upon or recognize any other theory, and if for aught that appears from it, independent of theory, it may be merely declaratory or constituting, not granting, giving, or conveying, (except in the institution of a subordinate Government,3) and if the facts which led to the actual customary recognition of the written Constitution do not contradict the view, it may be

11 Kent's Comm. (6th ed.) 217, note citing authorities.

In the second Article of Confederation it was declared, "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in Congress assembled." This is urged as proving each State to have been possessed of integral national sovereignty, (1 Calhoun's W. p. 148, 149.) But since no declaration of sovereignty can be more than evidence, it may, as such, be compared with other testimony. So, too, the declaration of July 4th asserted the colonies to be free and independent States. But declaring a state of things, does not make it. The question still is, how did these States hold sovereign power? The accompanying declarations of an existing state or condition of private persons, "that all men are created equal," &c., and have "unalienable rights," did not determine any private conditions, even though the state of private persons is the effect, and not, like sovereignty, the cause of law.

Any adequate reference to the authorities from which this historical summary is supposed to be derived would occupy a disproportionate space, and if attempted, would, probably, be unsatisfactory, since all the written histories of this period are viewed with various degrees of deference by persons differing in political sentiment. Pitkin's History of the United States presents the leading events in a simple form of narration, yet with special reference to their bearing on the political or public law of the Union. Chapters vi, vii, xi, and xix of that work may be noted as relating to the period here referred to.

Throughout the six Articles of the Constitution the people of the U. S. grant powers to different departments of a Government, and being granted as separate functions of government, the Government holds those powers under a law. The only instance in which an assignment of powers to the United States is spoken of, is in the tenth Amendment, where it is called a delegation. "The powers not delegated to the United States by the Constitution," &c. This is, in fact, a discrepancy with the main instrument, and should be construed to harmonize with it, not to alter it; no powers being therein granted or delegated to the U. S., but to the Government; the U. S., the people of the U. S., being the granting or delegating party. Comp. 1 Calhoun's W. p. 240.

* Compare the summaries of the facts in Calhoun's Essay, 1 Works, 188–190, and in 1 Story's Comm. § 109-115.