2

reconciliation should be effected with the mother country.' These constitutions were, therefore, political steps toward independence, but not absolute assertions of that condition. Virginia had acted more decisively. On the 29th of June, 1776, she had declared "the government of this country as formerly exercised under the crown of Great Britain totally dissolved." But this was a declaration, not that Virginia, but that the whole united colonies were independent; it only shows that the statesmen of Virginia in those early days had a true understanding of their relations to the other colonies and to the nation; they then recognized the existence of one country, and that country not the State of Virginia, but the United States of America. Who then became independent by this organic declaration of the people's will? Not Massachusetts, not New York, not Virginia, but the nation. To whom did that political sovereignty pass which had before been vested in the empire of Great Britain, acting through its king and parliament? Not to Massachusetts, not to New York, not to Virginia, for these political societies had not declared themselves independent, but to the United States of America.

The

§ 54. But it may be asked, if this proceeding was national, when and how did the colonies become one nation? answer has already been partially given. The people, in the first expression of their organic will by the appointment of delegates to a general congress, took the initiative in their progress toward nationality. They clothed these delegates with undefined powers for the public good; the delegates finally, in the exercise of these powers, declared the country free and independent of the British crown; the people, by their acquiescence in this declaration, completed the birth of the nation. There never was, in fact, a moment's interval when the several states were each independent and sovereign. While colonies they unitedly resisted, revolted, declared that combined political society independent. The blow which sev ered the connection with the British empire, did not leave a 1 See Jameson, Const. Conv. §§ 131, 133, 139.

21 Story on the Constitution, § 211.

disintegrated mass made up of thirteen communities now independent; it left an united mass, a political unity, a nation possessing the high attributes of sovereignty which it had just exercised. The United States was then a fact, and no power but that which called it into being the People — is competent to decree the national destruction.

$55. I have dwelt somewhat at length upon this point because I esteem it to be of vital importance to a proper un derstanding and construction of the acts and proceedings of the people of the United States in the adoption of the present Constitution. It is the key to the whole position. Grant that in the beginning the several states were, in any true sense, independent sovereignties, and I see no escape from the extreme positions reached by Mr. Calhoun. If at the outset the political society consisted only in a weak agglomeration of thirteen separate nations, each of these nations must have possessed all the powers which belong to any other independent sovereignty in the world. Among these attributes, the one which underlies all others, and is, in fact, necessarily implied in the very conception of separate nationality, is that of supreme, continued self-existence. This inherent right can only be destroyed by overwhelming opposing force; it cannot be permanently parted with by any constitution, treaty, league, or bargain, which shall forever completely resign or essentially limit their sovereignty, and restrain the people from asserting it. They may at any time throw off the obligations of constitution, treaty, or league; however solemn and formal may have been the stipulations into which they have voluntarily entered, these exist only during their own good will and pleasure.1

1 This doctrine that a sovereign state cannot bind itself by any treaty or compact by which its sovereignty is wholly or substantially surrendered or lessened, is now maintained by the leading writers on Public and International Law. In the expressive language of one of these writers, "For moral beings as well as for individuals, there can be no obligatory promise, when this promise is of suicide." See, on this subject, Martens, Precis du Droit des Gens, § 52 (Paris, 1864); Ortolan, Diplomatie de la Mer, liv. 1, ch. v. p. 90 (Paris, 1864); Hautefeuille Des Droits et des Devoirs des Nations Neutres, t. i. pp. 8–10 (Paris, 1858); Heffter, Droit International

§ 56. Now it is claimed that these highest attributes of polit ical sovereignty belong, and from the very beginning have belonged, to the people of the United States, one and indivisible. If, on the contrary, they originally pertained to the thirteen states in their separate capacities, they have never been permanently surrendered or essentially limited, simply because they cannot be thus forever parted with; and as a consequence they may be resumed and exercised at will. Thus have the extreme opponents of nationality reasoned with irresistible logic from the premises assumed by them -the original sovereignty of each state. Believing as I do that their conclusions are false in theory and in fact, and destructive of all that is admirable in our national union and constituted government, I see no escape from these results if the premises are granted upon which their whole argument is based.

But the premises should not, need not, be granted. It is demonstrable as a fact of history, as to which there can be no mistake, and which cannot be changed to suit the demands of conflicting theories, that the people of the United States, through their own positive act done in their own name by their delegates, sprang into self-existence as an organic political society possessing sovereignty, and that the separate states, as individual bodies politic, were never independent, never clothed with the attributes of nationality.

SECTION II.

THE PERIOD OF THE CONFEDERATION.

$57. In the further development of this branch of the subject, I shall now examine the origin and character of the Confederation which preceded the existing government.

Although as a grand historical fact, the revolt and the Declaration of Independence were the work of, and had resulted in, one nation, yet it must be at once conceded

Public, § 83 (Paris, 1866); Pinheiro-Ferreira, Note to § 58 of Martens (ed. of 1864).

that the theory was not yet perfected in the minds of the revolutionary leaders, or of the people themselves. It is not possible for any community to shake off, by one voluntary act, the habits of thought, prejudices, and opinions, which have formed a part of their common life for generations. Under the influence of high-wrought feeling, or of a clear conception of duty or interest, a people may temporarily throw aside their former habitual modes of action, and for a time adapt themselves to a new state of social existence; but as soon as the paroxysm is past, as the flow of enthusiasm has receded, the conceptions of duty and interest become less clear, and the community gradually returns to its old customs, thoughts, and methods. Our revolutionary fathers were no exception to this rule. While colonies they had regarded their political societies as distinct; some jealousies had continually existed among them; some difference of interests had ever kept them apart. The necessities of their position, the absolute impossibility of separate revolts, the presence of a common danger, and the sentiments of an exalted patriotism, for a while swept away and buried all these local prejudices, these attachments to colonial or state independence. The interests of the whole were for a time. regarded as paramount, and placed far in advance of the interests of the several parts. This perfect unity lasted long enough to produce that glorious offspring, the People of the United States, that new-born Nation, destined in the providence of God, I reverently believe, to be the example and teacher to all the nations of the earth, an example and teacher by its errors and punishments as well as by its excellencies and prosperity, until, being made perfect through suffering, it shall wield an influence over humanity even surpassing that exerted by the deathless empire of Rome.

$58. But soon after the formal act which asserted the national independence, state pride, interests, and influence, began to be felt plainly and powerfully in our nationa! councils. The former habits were too strong to be forgotten, and they soon returned with even increased power. A government must be formed to take the place of the exist

ing one, which was regarded as revolutionary and temporary improvised to meet the exigencies of the occasion which called it into being. As the revolution was no longer a mere policy of resistance ready to be abandoned when the British crown and parliament should yield to the demands of the colonies, but was to be prosecuted until independence should be recognized, a permanent organization must be substituted in the place of the one which had hitherto served to represent the people and to form the channel through which their national will was expressed. In the construction of this new government the separate state power triumphed over the national idea. Yet the latter was not entirely abandoned, nor was it, in fact, formally renounced. The people still remained one. They alone could decree their own destruction, and such a suicidal act can never be established by implication; of all others it needs positive, direct proof.

Still it is true that in arranging the new Confederation, in allotting powers and functions to its government, the supremacy was conceded to the states, while the national authority was placed in a position of actual subordination. The states were assumed as the sources of power; they were represented as severally existing and as delegating a small portion of their attributes to the central agent, while they reserved a much larger share to themselves. But even in the midst of this partial abandonment of the idea with which the revolution was commenced, the general body politic was not stripped of all its insignia of nationality. It was still left as the only political society which could hold intercourse with other sovereignties, which was admitted into the family of nations.

§ 59. On the 15th of November, 1777, Articles of Confederation, which from time to time had been discussed in the Continental Congress, were finally passed by that body and recommended to the several states for adoption. The states slowly followed the advice of Congress. All had ratified the instrument in 1778, except Delaware and Maryland. Dela ware yielded in 1779, and Maryland in 1781.