ernment.1 They authorized the grant of commissions to capture armed vessels and transports in the British service, and recommended the creation of prize courts in each colony, reserving a right of appeal to Congress.2 They adopted rules for the regulation of the navy and for the division of prizes and prize money.3 They denounced as enemies all who should obstruct or discourage the circulation of bills of credit. They authorized further emissions of bills of credit, and created two military departments for the Middle and Southern colonies. They authorized general reprisals and the equipment of private armed vessels against British vessels and property. They organized a general treasury department. They authorized the exportation and importation of all goods to and from foreign countries, not subject to Great Britain, with certain exceptions, and prohibited the importation of slaves, and declared a forfeiture of all prohibited goods. They recommended to the respective assemblies and conventions of the colonies, where no government sufficient to the, exigencies had been established, to adopt such government as in the opinion of the representatives should best conduce to the happiness and safety of their constituents in particular, and America in general, and adopted a preamble which stated "that the exercise of every kind of authority under the crown of Great Britain should be totally suppressed." § 205. These measures, all of which progressively pointed to a separation from the mother country, and evinced a determination to maintain, at every hazard, the liberties of the colonies, were soon followed by more decisive steps. On the 7th of June, 1776, certain resolutions respecting independency were moved, which were referred to a committee of the whole. On the 10th of June it was resolved that a committee be appointed to prepare a declaration" that these united colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain is, and ought to be, dissolved." On the 11th of June a committee was appointed to 1 Journals of Congress of 1775, p. 231, 235, 279. 2 Journals of Congress of 1775, p. 259, 260, &c. & Journals of Congress of 1776, p. 13. Journals of Congress of 1776, p. 106, 107, 118, 119. Journals of Congress of 1776, p. 122, 123. * Journals of Congress of 1776, p. 166, 174. 7 Journals of Congress of 1776, p. 205, 206. prepare and digest the form of a confederation to be entered into between the colonies, and also a committee to prepare a plan of treaties to be proposed to foreign powers. On the 28th of June the committee appointed to prepare a declaration of independence brought in a draft. On the 2d of July Congress adopted the resolution for independence; and on the 4th of July they adopted the Declaration of Independence, and thereby solemnly published and declared "That these united colonies are, and of right ought to be, free and independent States; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that as free and independent States they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do." § 206. These minute details have been given, not merely because they present an historical view of the actual and slow progress towards independence, but because they give rise to several very important considerations respecting the political rights and sovereignty of the several colonies, and of the union which was thus spontaneously formed by the people of the united colonies. § 207. In the first place, antecedent to the Declaration of Independence none of the colonies were, or pretended to be, sovereign states, in the sense in which the term "sovereign" is sometimes applied to states.2 The term " sovereign" or "sovereignty" is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions. By "sovereignty" in its largest sense is meant supreme, absolute, uncontrollable power, the jus summi imperii,3 the absolute right to govern. A state or nation is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by their combined strength. By the very act of civil and political association, each citizen subjects himself to the authority of the whole; and the authority of all over each member essentially belongs to the body politic. A state which pos1 Journals of Congress of 1776, p. 207. 2 3 Dall. 110, per Blair, J.; 9 Dane's Abridg. App. § 2, p. 10, § 3, p. 12, § 5, p. 16. 3 1 Bl. Comm. 49; 2 Dall. 471, per Jay, C. J. ↑ Vattel, B. 1, ch. 1, § 1; 2 Dall. 455, per Wilson, J. 5 Vattel, B. 1, ch. 1, § 2. sesses this absolute power, without any dependence upon any foreign power or state, is in the largest sense a sovereign state.1 And it is wholly immaterial what is the form of the government, or by whose hands this absolute authority is exercised. It may be exercised by the people at large, as in a pure democracy; or by a select few, as in an absolute aristocracy; or by a single person, as in an absolute monarchy. But "sovereignty" is often used in a far more limited sense than that of which we have spoken, to designate such political powers as in the actual organization of the particular state or nation are to be exclusively exercised by certain public functionaries, without the control of any superior authority. It is in this sense that Blackstone employs it, when he says that it is of" the very essence of a law that it is made by the supreme power. Sovereignty and legislature are, indeed, convertible terms; one cannot subsist without the other."3 Now, in every limited government the power of legislation is, or at least may be, limited at the will of the nation; and therefore the legislature is not in an absolute sense sovereign. It is in the same sense that Blackstone says, "the law astribes to the king of England the attribute of sovereignty or pre-eminence," 4 because, in respect to the powers confided to him, he is dependent on no man, accountable to no man, and subjected to no superior jurisdiction. Yet the king of England cannot make a law; and his acts, beyond the powers assigned to him by the Constitution, are utterly void. § 208. In like manner the word "state" is used in various senses. In its most enlarged sense it means the people composing a particular nation or community. In this sense the state means the whole people, united into one body politic; and the state and the people of the state are equivalent expressions.5 Mr. Justice Wilson, in his Law Lectures, uses the word "state" in its broad"In free states," says he, "the people form an artificial person, or body politic, the highest and noblest that can be known. They form that moral person, which in one of my est sense. 12 Dall. 456, 457, per Wilson, J. 2 Vattel, B. 1, ch. 1, § 2, 3. 1 Bl. Comm. 46. See also 1 Tucker's Black. Comm. App. note A., a commentary on this clause of the author's text. 11 Bl. Comm. 241. * Penhallow v. Doane, 3′Dall. R. 93, 94, per Iredell, J.; Chisholm v. Georgia, 2 Dall. 455, per Wilson, J.; 2 Wilson's Lect. 120; Dane's Appx. § 50, p. 63. See Dr. Lieber's Political Ethics, B. 2, ch. 4, p. 163. former lectures 1 I described as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests which it ought to manage; as enjoying rights which it ought to maintain; and as lying under obligations which it ought to perform. To this moral person we assign, by way of eminence, the dignified appellation of STATE."2 But there is a more limited sense in which the word is often used, where it expresses merely the positive or actual organization of the legislative, executive, or judicial powers. Thus, the actual government of a state is frequently designated by the name of the state. We say, the state has power to do this or that; the state has passed a law, or prohibited an act, meaning no more than that the proper functionaries, organized for that purpose, have power to do the act, or have passed the law, or prohibited the particular action. The sovereignty of a nation or state, considered with reference to its association, as a body politic, may be absolute and uncontrollable in all respects, except the limitations which it chooses to impose upon itself. But the sovereignty of the government organized within the state may be of a very limited nature. It may extend to few or to many objects. It may be unlimited as to some, it may be restrained as to others. To the extent of the power given, the government may be sovereign, and its acts may be deemed the sovereign acts of the state. Nay, the state, by which we mean the people composing the state, may divide its sovereign powers among various functionaries, and each in the limited sense would be sovereign in respect to the powers confided to each, and dependent in all other cases.5 Strictly speaking, in our republican forms of government the absolute sovereignty of the nation is in the people of the nation; and the 1 1 Wilson's Lect. 304, 305. 22 Wilson's Lect. 120, 121. 8 Mr. Madison, in his elaborate report in the Virginia legislature in January, 1800, adverts to the different senses in which the word "state" is used. He says, "It is indeed true, that the term 'states' is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies, as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity." 42 Dall. 433, Iredell, J.; Id. 455, 456, per Wilson, J. 6 3 Dall. 93, per Iredell, J.; 2 Dall. 455, 457, per Wilson, J. residuary sovereignty of each State, not granted to any of its public functionaries, is in the people of the State.1 § 209. There is another mode in which we speak of a state as sovereign, and that is in reference to foreign states. Whatever may be the internal organization of the government of any state, if it has the sole power of governing itself and is not dependent upon any foreign state, it is called a sovereign state; that is, it is a state having the same rights, privileges, and powers as other independent states. It is in this sense that the term is generally used in treatises and discussions on the law of nations. A full consideration of this subject will more properly find place in some future page.2 § 210. Now it is apparent that none of the colonies before the Revolution were, in the most large and general sense, independent or sovereign communities. They were all originally settled under, and subjected to, the British crown. Their powers and authorities were derived from, and limited by, their respective charters. All, or nearly all, of these charters controlled their legislation by prohibiting them from making laws repugnant or contrary to those of England. The crown, in many of them, possessed a negative upon their legislation, as well as the exclusive appoint1 2 Dall. 471, 472, per Jay, C. J. Mr. J. Q. Adams, in his oration on the 4th of July, 1831, published after the preparation of these Commentaries, uses the following language: "It is not true that there must reside in all governments an absolute, uncontrollable, irresistible, and despotic power; nor is such power in any manner essential to sovereignty. Uncontrollable power exists in no government on earth. The sternest despotisms in any region and in every age of the world are and have been under perpetual control. Unlimited power belongs not to man; and rotten will be the foundation of every government leaning upon such a maxim for its support. Least of all can it be predicated of a government professing to be founded upon an original compact. The pretence of an absolute, irresistible, despotic power, existing in every government somewhere, is incompatible with the first principles of natural right." He says, 2 Dr. Rush, in a political communication, 1786, uses the term "sovereignty" in another and somewhat more limited sense. "The people of America have mistaken the meaning of the word 'sovereignty.' Hence each State pretends to be sovereign. In Europe it is applied to those states which possess the power of making war and peace, of forming treaties, and the like. As this power belongs only to Congress, they are the only sovereign power in the United States. We commit a similar mistake in our ideas of the word 'independent.' No individual State, as such, has any claim to independence. She is independent only in a union with her sister States in Congress." 1 Amer. Museum, 8, 9. Dr. Barton, on the other hand, in a similar essay, explains the operation of the system of the confederation in the manner which has been given in the text 1 Amer. Museum, 13, 14. 32 Dall. 471, per Jay, C. J. |