consent of the governed," required that the State of America (whether called by the name of "the American Union," "the United States assembled," or "the United States of America," or by any other name), when occupying the position of the Government for other States, as its dependencies, should regard itself as being in a relationship of constitutional connection with them, so that all together would constitute a Federal Empire, in which the American Union would be the Imperial State and would act under an unwritten Constitution of the Empire, supreme, for Imperial purposes, over its own Constitution and the Constitutions of the Member-States, which it was obligated to interpret, adjudicate, and execute, for the benefit of all parties concerned.

Neither the Declaration of Independence of 1776 nor that of 1778 had anything to say concerning the manner in which the Government should be distinguished from the governed. They did not say that Governments derived their original existence from the will and act of the governed, but only that they derived their "just" powers from the "consent" of the governed. In both these instruments, the relationship of Government and governed was taken for granted, and they were merely concerned with declaring the duties of Governments. They therefore had nothing to say concerning whether, in a given case, the American Union should or should not act as the Government for other States. They declared, however, that if Great Britain had been willing to admit that its powers over the American Colonies were exercised under an unwritten Constitution securing to the Colonies their rights as States, and to the inhabitants of the Colonies their rights as individuals, and had in fact so exercised them, its exercise of power over the Colonies would have been just. As Great Britain had elected itself the Imperial State of the British Empire, the Declaration of Independence necessarily implied that the American

Union might justly elect itself the Imperial State of the American Empire if it saw fit, provided the American Empire were recognized as a Federal Empire.

From the moment of the issuance of the Declarations of Independence of 1776 and 1778, the obligations of the American Union could not be fulfilled by merely granting to its dependencies, of its mere will and favor, local self-government as municipal corporations, but could only be fulfilled by recognizing them as States having, by the nature of things, the fullest and most complete rights of statehood consistent with the welfare of the whole American Federal Empire, composed of the American Union, as the Imperial State, and its dependencies. How complete the rights of statehood of the federally-subject States— the Member-States of the American Federal Empire,should be, it was for the American Union, as the Imperial State, to adjudicate, and by its dispositions, made by its impartial and expert tribunal, fairly and after opportunity of the federally-subject States to be heard, they were bound, in equity and good conscience.

CHAPTER XXI

THE DISPOSITIVE POWER, 1779-1783

HE Congress of the American Union came into ex

THE

istence as a body of delegates from the Colonies, assembled to devise means for making an effectual protest against the claims of Great Britain, as the Imperial State. After the Declaration of Independence, it was continued by common consent, and without any express definition of its powers. What its powers were could only be ascertained from a consideration of what the powers of such an assembly, under such circumstances, ought, in the nature of things, to be. There seems, however, to have been little doubt felt, in the Congress itself, concerning the nature of its powers. It seems to have been the unanimous sentiment that the Congress was the successor of the King of Great Britain in his official capacity. It is beyond the limits of the study here undertaken to show how this conception of the power of Congress was applied as between the Congress and the States of the Union, though that it was applied admits of no doubt, the powers given to Congress by the Articles of Confederation being almost exactly those which the King in Council exercised or had exercised in the State of Great Britain. Bancroft, in his History of the United States, has referred to this fact, in his chapter on the Articles of Confederation. Prefacing his examination of the Articles, he says:

According to the American theory, the unity of the Colonies had, before the Declaration of Independence, resided in the

British King. The Congress of the United States was the King's successor, and it inherited only such powers as the Colonies themselves acknowledged to have belonged to the Crown.

That the Congress regarded itself as authorized to exercise the same powers over the dependencies of the Union as were exercised by the King in Council over the American Colonies prior to 1763 is proved by various acts and documents.

The memorial of the Indiana Company filed September 14, 1779, asked that Congress direct an order against Virginia

to stay the sale of the lands in question, till Virginia, as well as the memorialists, can be heard before this honorable House and the whole rights of the owners of the said tract of land called Vandalia, of which Indiana is a part, shall be ascertained in such a manner as may tend to support the Sovereignty of the United States and the rights of individuals therein.

The committee of Congress reported, on the remonstrance of Virginia, that they could not find "any such distinction between the question of the jurisdiction and the merits of the cause, as to recommend any decision. upon the first separately from the last "-in other words, that the whole question was one of jurisdiction.

Franklin, in his memorial on behalf of the Vandalia Company, filed in February, 1780, used the word "Sovereignty" to describe the power of the Union over the Western region. His words were:

As your Honors have now succeeded to the Sovereignty of the territory in question, your memorialists confide that you will think it just and reasonable to consider the said lands as subject to such contracts and dispositions as were made concerning them while they confessedly belonged to the British Crown; and that your memorialists and their associates, who have ever

been ready to fulfil their parts of the said contract, may not suffer such great injury by the change of Sovereignty as to be deprived of their equitable rights to the said lands.

He asked that the lands be granted to the persons interested in the Vandalia Company either upon the terms and conditions of their contract with Great Britain approved by order of the King in Council (which contract, as has been said, was ready for delivery with the exception of affixing the seals when the Revolution broke out), "or upon such other terms as may be convenient to the interests of the United States and not injurious to your memorialists and their associates."

The form of this memorial was exactly such as might have been addressed to the King in Council before the Revolution, and the word "Sovereignty " plainly meant the power which the King, as Sovereign, had previously exercised and not "sovereign power" in the sense of unlimited, unconditional power.

The first statement of the Congress on this subject was contained in the Instructions given by it on October 17, 1780, to the Ministers Plenipotentiary of the United States at the Courts of France and Spain, regarding the claims of Spain to the Western region. These Instructions were reported by a committee consisting of James Madison, John Sullivan of New Hampshire, and James Duane of New York. Spain, on January 31, 1780, through the French Minister, had expressed a willingness to enter into a treaty of alliance with the United States and France, providing the United States would admit that the western limits of the Confederation extended only so far as there had been actual settlements from the Colonies prior to the Proclamation of the King made in 1763, closing the Western region to settlement. Spain based its claim on the propositions that the United States had no possession of the region beyond those limits be