fore the Revolution and that they could not claim “in the right of sovereignty of Great Britain" because they had" abjured the dominion" of that country.

To this the Ministers at the Courts of France and Spain were instructed to reply that the Mississippi was the boundary of the United States on the west because "by the definitive Treaty of Paris of 1763, Article Seventh, all the territory now claimed by the United States was expressly and irrevocably ceded to the King of Great Britain; and the United States are, in consequence of the revolution in their government, entitled to the benefits of that cession."

The Instructions then proceeded:

The first of these positions is proved by the Treaty itself. To prove the last, it must be observed that it is a fundamental principle in all lawful Governments, and particularly in the Constitution of the British Empire, that all the rights of Sovereignty are intended for the benefit of those from whom they are derived, and over whom they are exercised. It is known also to have been held for an inviolable principle by the United States, while they remained a part of the British Empire, that the Sovereignty of the King of England, with all the rights and powers included in it, did not extend to them in virtue of his being acknowledged and obeyed as King by the people of England, or of any other part of the Empire, but in virtue of his being acknowledged and obeyed as King of the people of America themselves; and that this principle was the basis, first of their opposition to, and finally of the abolition of his authority over them. From these principles it results, that all territory lying within the limits of these States, as fixed by the Sovereign himself, was held by him for their particular benefits, and must, equally with his other rights and claims in quality of their Sovereign, be considered as having devolved on them, in con-sequence of their resumption of the Sovereignty to themselves.

As further evidence in support of the opinion of the Congress that their powers were the same as those

exercised prior to the Revolution by the King in Council, there may be cited the report made on August 16, 1782, of a committee consisting of Daniel Carroll of Maryland, Edmund Randolph of Virginia, and Joseph Montgomery of Pennsylvania, appointed to report facts and observations to be referred to the Secretary for Foreign Affairs," to be by him digested, completed and transmitted to the Ministers Plenipotentiary for negotiating a peace, for their information and use." In their report, the committee said:

If the vacant lands cannot be demanded upon the titles of individual States, they are to be deemed to have been the property of his Britannic Majesty, as Sovereign of the thirteen Colonies immediately before the Revolution, and to be devolved upon the United States collectively taken. The character in which he was so seized was that of King of the thirteen Colonies collectively taken. Being stripped of this character, his rights descended to the United States for the following reasons: 1. The United States are to be considered in many respects as one undivided independent nation, inheriting those rights which the King of Great Britain enjoyed as not appertaining to any one particular State, while he was what they are now, the Superintending Governor of the whole. 2. The King of Great Britain has been dethroned as King of the United States, by the joint efforts of the whole. 3. The very country in question has been conquered through the means of the common labors of the United States.

While this report was not adopted, it is evident that it was not because it did not state the views of Congress, but because it was not thought proper at that time, while the States were still hesitating about ceding their rights in the Northwest Territory, for Congress to take a definite stand, which might prejudice the claims of the States against the Union. There is every reason to believe that if the claims of the States had not at the

moment conflicted with those of the Union, this declaration of the rights of the Union over the Northwest Territory would have been unanimously adopted.

Gouverneur Morris, in a letter of January 1, 1783, to John Jay, who was then in Paris, and who was acting with Adams and Franklin in negotiating the definitive Treaty of Peace with Great Britain, said:

You and I differ about the Western country, but you and your Sovereign are of the same opinion.

On September 13, 1783, while Congress was considering the report on the conditional cession of 1781 made by Virginia, and there appeared to be some probability that it would yield to the conditions, Maryland presented a remonstrance of its Legislature, in which it was declared:

The United States have succeeded to the Sovereignty over the Western territory, and are thereby vested as one undivided and independent nation, with all and every power and right exercised by the King of Great Britain over the said territory.

In the latter part of 1784 and the early part of 1785, treaties were made with the Indians whereby a strip of land constituting about the east quarter of the present State of Ohio was opened to settlement by the extinguishment of the Indian title. The principal one, which was with the Wyandot, Delaware, Chippewa, and Ottawa Indians, was expressed in language which showed that the American Union regarded itself as a single nation, acting as the Sovereign and Imperial State over the Indian tribes, as native States, which stood to it in the relationship of constitutional protectorates. The second Article of the Treaty provided that:

The said Indian nations do acknowledge themselves and all their tribes to be under the protection of the United States, and of no other Sovereign whatsoever.

John Jay, as Secretary for Foreign Affairs, on October 3, 1786, in a report to Congress concerning the right of the States to interfere with the execution of the provisions of the Treaty of Peace, said:

The rights to make war, to make peace, and to make treaties appertaining exclusively to the National Sovereign-that is, to Congress your Secretary is of opinion that the thirteen State Legislatures have no more authority to exercise these powers or pass acts of Sovereignty on these points, than any thirteen individual citizens.

On April 13, 1787, the Congress agreed to a letter, drafted by Jay, to be sent to the Legislatures of the States, in which it was said:

The thirteen independent sovereign States have, by express delegation of powers, formed and vested in us a general, though limited Sovereignty, for the general and national purposes specified in the Confederation. In this Sovereignty they cannot participate, except by their delegates, nor with it have concurrent jurisdiction; for the ninth Article of the Confederation most expressly conveys to us the sole and exclusive right and power of determining on war and peace and of entering into treaties and alliances etc.

Treaties derive their sole obligation from being compacts between the Sovereign of this and the Sovereign of another Nation.

It seems, therefore, to be clear beyond a doubt that the theory of the Congress and of the separate State Legislatures was that the American Union was the Sovereign-the Sovereign State-of the Western region, and that the Congress, as the sole agent and representative of the Sovereign State, fulfilled its functions and was, therefore, the effective and actual Sovereign of the Western region. The power of the Union over this

region measured the power of the Congress over the region, on the theory that the Union could grant to the Congress as its agent only such power as it itself had. As all power exercised by a Sovereign was recognized as being conditional power, the power of the Union, and of the Congress as its agent and representative, over the Western region, was recognized as being conditional— that is, as being a power of disposition.

That the Congress regarded itself, at least from the moment that the Articles of Confederation were signed, as the constitutional Sovereign of the Union, exercising powers over the States of the Union, as persons, and over their inhabitants, which were in their character essentially judicial and conditional, is shown by the names which they adopted, immediately upon the signing of the Articles of Confederation, to designate their official acts. These names were ordinances" and "resolutions." The former was used to designate those actions of the Congress which were of general and public interest, while the latter was used to designate those actions which related to matters of special or local interest, or which expressed the sentiments of the Congress on any subject.

The first action of the Congress which it described as an "ordinance" was taken on March 27, 1781, less than a month after the Articles of Confederation were signed. The preamble of this ordinance, which was entitled "An Ordinance Relative to the Capture and Condemnation of Prizes," was worded in such a manner as to show that the Congress regarded its powers as essentially judicative. It read:

The United States in Congress assembled, taking into consideration the implacable war waged against them by the King of Great Britain, and judging it inconsistent with their dignity as a free and independent nation any longer to continue the