son.

choose to prescribe. Hence, when the PEOPLE had asserted and maintained their sovereignty, not a vestige of this feudal allegiance remained: although the term, allegiance, has since been retained, to denote the tie, or obligation, which binds the citizen to the political state, in return for that protection which the state affords to him, and the breach of which obligation, may involve the crime of treaIt is therefore important to know, in this connection, to whom, or to what political body, the citizen was afterwards bound by the new allegiance which followed the Revolution. This, however, is settled by the decision of the previous question, as to the body or bodies by whom the powers of government were resumed. Allegiance could only be due to the sovereign; and the sovereignty of government being exploded, no allegiance could be due to any government. But the sovereignty of the people of each colony was affirmed and established; and therefore to them,―to their sovereign will as expressed in their organic law, allegiance was due. No one imagined that he owed allegiance to any but the colony or state of which he was a member. If any doubt was then entertained, it was settled by the continental congress; which, by a resolution of the 24th of June, 1776, declared, that 'All persons abiding within any of the United Colonies and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of such colony; and that all persons passing through or making a temporary stay in any of the colonies, being entitled to the protection of the laws, during the time of such passage, visitation or temporary stay, owed, during the same, allegiance thereto.1

1 Journals, II., 216. Curtis's 'History of the Constitution,' Vol. I, p. 52. The three great facts which lie at the foundation of the political history of the United States, viz., that the political sovereignty (originally vested in the parent state) was resumed by the people of each colony as a separate and sovereign body; that all political and civil authority (either of the States or of the United States) was thence derived from the sovereign and independent action of the people of each; and that the allegiance of the citizens thence became due to the people of each in their sovereign capacity as a political state; have often been

56. The

Let us next inquire into the nature of that UNION which original union was first established between the States. The fact has of the states. been noticed, that down to the time of the Revolution, no

the subject of judicial recognition, as supplying the basis of correct decision, in our courts of the highest resort.

Thus in the case of Ware et al. v. Hylton, decided in the Supreme Court of the United States, shortly after the Revolution, and reported in 3 Dall. R. 199. In this case (see, of the Report, pp. 222 to 225), Chase, Justice, said (the italics being those of the Report)—'I am of opinion that the exclusive right of confiscating, during the war, all and every species of British property, within the territorial limits of Virginia, resided only in the legislature of that Commonwealth. It is worthy of remembrance, that delegates and representatives were elected, by the people of the several counties and corporations of Virginia, to meet in general Convention, for the purpose of framing a NEW Government, by the authority of the people only; and that the said Convention met on the 6th of May and continued in session until the 5th of July, 1776; and, in virtue of their delegated power, established a Constitution, or form of Government, to regulate and determine by whom, and in what manner, the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and foundation of all power that could be rightfully exercised within its limits; they had therefore an unquestionable right to grant it to whom they pleased, and under what restrictions or limitations they thought proper. The people of Virginia, by their Constitution or fundamental law, granted and delegated all their Supreme civil power to a Legislature, an Executive, and a Judiciary; the first to make; the second to execute; and the last to declare or expound, the laws of the Commonwealth. This abolition of the Old Government, and this establishment of a new one, was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connection with Great Britain, absolutely and forever ceased; and no formal Declaration of Independence was necessary, although a decent respect for the opinions of mankind required a Declaration of the causes which impelled the separation, and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable, that the Legislature of Virginia, established, as I have stated, by the authority of the people, was forever thereafter invested with the supreme and sovereign power of the State, and with authority to make any laws in their discretion, to affect the lives, liberties, and property of all the citizens of that Commonwealth.

'In June, 1776, the Convention of Virginia formally declared that Virginia was a free, sovereign and independent State; and on the 4th of July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent States; and that, as such, they had full power to levy war, conclude peace, etc. I consider this as a Declaration, not that the United Colonies jointly, in a

political union of the people of America had ever existed, but that which resulted from their common allegiance to, and united them in, the parent state. In seasons of dan

collective capacity, were independent States, etc., but that each of them was a sovereign and independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth.

'Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain and the United Colonies jointly and separately, was a civil war; but instantly, on that great and ever memorable event, the war changed its nature, and became a PUBLIC war between independent governments; and immediately thereupon ALL the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia; and all the former political connexion between Great Britain and Virginia, and also between their respective subjects, was totally dissolved; and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the war between Great Britain and France. Vatt. Lib. 3, c. 18, s. 292 to 295, Lib. 3, c. 5, s. 70, 72 and 73.

‘From the 4th of July, 1776, the American States were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. On the 6th of February, 1778, the King of France entered into a treaty of alliance with the United States; and on the 8th of October, 1782, a treaty of Amity and Commerce was concluded between the United States and the States General of the United Provinces. I have ever considered it as the established doctrine of the United States, that their independence originated from, and commenced with, the declaration of Congress, on the 4th of July, 1776; and that no other period can be fixed on for its commencement, and that all laws made by the legislatures of the several States, after the declaration of independence, were the laws of sovereign and independent governments.' That the foregoing views of Judge Chase were in perfect accord with those of the continental congress, is conclusively shown by the second of the Articles of Confederation; which provided that, 'Each state retains its sovereignty, freedom and independence,' etc. See & 50, ante.

In McIlvaine v. Coxe, (2 Pet. Cond. R. 86,) decided in 1805, the Supreme Court of the United States held, that on the 4th of October, 1776, the state of New Jersey was a completely sovereign and independent state: that citizenship and allegiance belonged to the states, severally and respectively.

In Gibbons v. Ogden, (9 Wheat. 203; 5 Pet. Cond. R. 565,) decided by the same court in 1824, Marshall, Chief Justice, said: 'As preliminary to the very able discussion of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its

E

ger, some of the colonies had been accustomed to form associations, more or less extensive, with their immediate neighbors. A notable effort indeed was made, in 1754, to establish a common council of all, which should consist of delegates triennially chosen by the provincial assembly of each, and a president general appointed by the crown. But the project was sanctioned neither by the king nor by any of the colonial assemblies. The colonies were destined for a long time to remain, in relation to each other, separate and alien commonwealths, emulous of each other in obedience to the parent state, and in devotion to her interests, but jealous of each other's prosperity, and divided by policy, institutions, prejudice and manners.1 Before the articles of confederation were signed, it was never considered that a citizen of one state was for any

formation. It has been said that they were Sovereign, were completely Independent, and were connected with each other only by a league. This is true.'

Again, in Martin et al. v. Waddell, (16 Pet. R. 410, 416,) decided by the same court in 1842, it was held, that 'When the Revolution took place, THE PEOPLE OF EACH STATE BECAME THEMSELVES SOVEREIGN;' and that 'When the people of New Jersey took possession of the reins of gov ernment, and took into their own hands the powers of sovereignty, the prerogatives and regalities which before belonged to either the crown or the parliament, became immediately and rightfully vested in the State.' Our political history and judicial reports abound with authorities upon these points; and the CONSTITUTIONS of the several states, even at this day, are of themselves incontestible proofs, and, I trust, imperishable monuments, of the sovereignty of 'the people' of each state: which sovereignty they are designed to authoritatively express, in the most deliberate, formal and solemn manner, as the original organic law of each, in which the political state, and the government thereof, have their only foundation and support.

The same is true, indeed, of the constitution of the United States: which, as we shall hereafter see, was ordained and established by the PEOPLE of the United States, not as ONE political state, but as the people of each of the States respectively, acting by and for themselves as a sovereign State, and in their sovereign political capacity as such state. And, therefore, 'The Constitution of the United States, and every article and clause in it, is a part of the law of every State in the Union, and is the paramount law:' as was held by the U. S. Supreme Court in the case of Prigg v. The Commonwealth of Pennsylvania. (16 Pet. 628.) 11 Kent's Com. *204-5.

one purpose a citizen of another. He was, for all substantial purposes, as a foreigner to its forensic jurisprudence. If vigorous law had been enforced, perhaps he might have been deemed an alien, without an express provision of the state to save him.1

ation.

But when the war for independence had actually com- 257. Nature menced, the importance of a confederacy of the colonies and defects of was felt and acknowledged by all. Articles of confedera- the confedertion were accordingly prepared, submitted to the several state legislatures, and after encountering considerable opposition, finally approved and sanctioned by their authority.2

3

The parties to these articles were, as we have seen, sovereign and independent political communities; each of them possessing, within itself, all the powers of legislation. and government over its own citizens, which any political society can possess. After stating that "The style of this Confederacy shall be, "The United States of America," these articles expressly declare, that '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.' Hence the nature of that union of the states, which at first subsisted, is easily perceived. Whatever the powers which were delegated to it, they could be exercised only by "The United States in congress assembled. The legislative, judicial, and executive powers, were all of them lodged in a single body. Moreover, whatever the laws that were passed, or the judgments given, the executive was powerless to enforce them, either as against a particular state, or as against its individual members. Such were the grave defects of the original articles of confederation. The powers which were grant1 Per Iredell, Justice, in Penhallow et al. v. Doane's Adm. 3 Dall. 92, 2 See & 50, ante.

* Curtis's Hist. of the Const. of the U. S., Vol. 1, p. 142.

See Art. II, under 50, ante.

5 The great and radical vice, in the construction of the existing confederation, is in the principle of LEGISLATION for STATES or GOVERN