the same time providing for their more domestic concerns by state conventions, and other temporary arrangements. From the crown of Great Britain the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that crown, passed, not to the people of the colony or states, within whose limits they were situated, but to the whole people. On whatever principle this opinion rested, it did not give way to the other; and thirteen sovereignties were considered as emerging from the principles of the revolution, combined by local convenience and considerations. The people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly." In Penhallow v. Doane, (3 Dall. R. 54,') Mr. Justice Patterson (who was also a revolutionary statesman) said, speaking of the period before the ratification of the confederation: "The powers of congress were revolutionary in their nature, arising out of events adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the centre of the union, the centre of force, and the sun of the political system. Congress raised armies, fitted out a navy, and prescribed rules for their government, &c. &c. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America, &c. &c. The danger being imminent and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert, or break the violence of the gathering

1 S. C. 1 Peters's Cond. Rep. 21.

storm. They accordingly grew into union, and formed one great political body, of which congress was the directing principle and soul, &c. &c. The truth is, that the states, individually, were not known, nor recognized as sovereign by foreign nations, nor are they now. The states collectively under congress, as their connecting point or head, were acknowledged by foreign powers, as sovereign, particularly in that acceptation of the term, which is applicable to all great national concerns, and in the exercise of which other sovereigns would be more immediately interested." In Ware v. Hylton, (3 Dall. 199,1) Mr. Justice Chase (himself also a revolutionary statesman) said: "It has been inquired, what powers congress possessed from the first meeting in September, 1774, until the ratification of the confederation on the 1st of March, 1781. It appears to me, that the powers of congress during that whole period were derived from the people they represented, expressly given through the medium of their state conventions or state legislatures; or, that after they were exercised, they were impliedly ratified by the acquiescence and obedience of the people, &c. The powers of congress originated from necessity, and arose out of it, and were only limited by events; or, in other words, they were revolutionary in their nature. Their extent depended on the exigencies and necessities of public affairs. entertain this general idea, that the several states retained all internal sovereignty; and that congress properly possessed the rights of external sovereignty. In deciding on the powers of congress, and of the several states before the confederation, I see but one safe rule, namely, that all the powers actually exer

1 S. C. 1 Peters's Cond. R. 99.

cised by congress before that period were rightfully exercised, on the presumption not to be controverted, that they were so authorized by the people they represented, by an express or implied grant; and that all the powers exercised by the state conventions or state legislatures were also rightfully exercised, on the same presumption of authority from the people."1

§ 217. In respect to the powers of the continental congress exercised before the adoption of the articles of confederation, few questions were judicially discussed during the revolutionary contest; for men had not leisure in the heat of war nicely to scrutinize or weigh such subjects; inter arma silent leges. The people, relying on the wisdom and patriotism of congress, silently acquiesced in whatever authority they assumed. But soon after the organization of the present government, the question was most elaborately discussed before the Supreme Court of the United States, in a case calling for an exposition of the appellate jurisdiction of congress in prize causes before the ratification of the confederation.2 The result of that examination was, as the opinions already cited indicate, that congress, before the confederation, possessed, by the consent of the people of the United States, sovereign and supreme powers for national purposes; and among others, the supreme powers of peace and war, and, as an incident, the right of entertaining appeals in the last resort in prize causes, even in opposition to state legislation. And that the actual powers exercised by congress, in

1 See also 1 Kent. Comm. Lect. 10, p. 196; President Monroe's Exposition and Message, 4th of May, 1822, p. 8, 9, 10, 11.

2 Penhallow v. Doane, 3 Dall. 54, 80, 83, 90, 91, 94, 109, 110, 111, 112, 117; Journals of Congress, March, 1779, p. 86 to 88; 1 Kent. Comm. 198, 199.

respect to national objects, furnished the best exposition of its constitutional authority, since they emanated from the representatives of the people, and were acquiesced in by the people.

CHAPTER II.

ORIGIN OF THE CONFEDERATION.

218. THE union, thus formed, grew out of the exigencies of the times; and from its nature and objects might be deemed temporary, extending only to the maintenance of the common liberties and independence of the states, and to terminate with the return of peace with Great Britain, and the accomplishment of the ends of the revolutionary contest. It was obvious to reflecting minds, that such a future separation of the states into absolute, independent communities with no mutual ties, or controlling national government, would be fraught With the most imminent dangers to their common safety and peace, and expose them not only to the chance of re-conquest by Great Britain, after such separation in detached contests, but also to all the hazards of internal warfare and civil dissensions. So, that those, who had stood side by side in the common cause against Great Britain, might then, by the intrigues of their enemies, and the jealousies always incident to neighbouring nations, become instruments, in the hands of the ambitious abroad, or the corrupt at home, to aid in the mutual destruction of each other; and thus all successively fall, the victims of a domestic or foreign tyranny. Such considerations could not but have great weight with all honest and patriotic citizens, independent of the real blessings, which a permanent union could not fail to secure throughout all the states.

§ 219. It is not surprising, therefore, that a project, which, even in their colonial state, had been so often attempted by some of them to guard themselves against