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king of England the attribute of sovereignty or preeminence," 1 because, in respect to the powers confided to him, he is dependant on no man, and 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. Mr. Justice Wilson, in his Law Lectures, uses the word "state" in its broadest sense. "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 former lectures, 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." But there is a more limited sense, in which the word is often used, where it expresses merely the

1 1 Bl. Comm. 241.

2 Penhallow v. Doane, 1 Peters's Cond. Rep. 37, 38, 39; 3 Dall. R. 93, 94. Per Iredell J. Chisholm v. Georgia, 2 Dall. 455. Per Wilson J. S. C. 2 Cond. Rep. 656, 670; 2 Wilson's Lect. 120; Dane's Appx. p. 63.

§ 50,

3 1 Wilson's Lect. 304, 305.

4 2 Wilson's Lect. 120, 121.

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.3 Strictly speaking, in our republican

1 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."

2 2 Dall. 433; Iredell J. Id. 455, 450. Per Wilson J.

3 3 Dall. 93. Per Iredell J. 2 Dall. 455, 457. Per Wilson J.

forms of government, the absolute sovereignty of the nation is in the people of the nation; and the 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.

1 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, profossing 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."

2 Dr. Rush, in a political communication, in 1786, uses the term "sovereignty" in another, and somewhat more limited sense.* He says, "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

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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.1 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 appointment of their superior officers; and a right of revision, by way of appeal, of the judgments of their courts. In their most solemn declarations of rights, they admitted themselves bound, as British subjects, to allegiance to the British crown; and as such, they claimed to be entitled to all the rights, liberties, and immunities of free born British subjects. They denied all power of taxation, except by their own colonial legislatures; but at the same time they admitted themselves bound by acts of the British parliament for the regulation of external commerce, so as to secure the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. So far, as respects foreign states, the colonies were not, in the sense of the laws of nations,

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individual state, as such, has any claim to independence. She is independent only in a union with her sister states in congress." 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 2 Dall. 471. Per Jay C. J.

2 See Marshall's Hist. of Colonies, p. 483; Journals of Congress, 1774, p. 29.

3 Journal of Congress, 1774, p. 27, 29, 38, 39; 1775, p. 152, 156; Marshall's Hist. of Colonies, ch. 14, p. 412, 483.

* 1 Amer. Museum, 13, 14.

sovereign states; but mere dependencies of Great Britain. They could make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor in any other shape act, as sovereigns, in the negociations usual between independent states. In respect to each other, they stood in the common relation of British subjects; the legislation of neither could be controlled by any other; but there was a common subjection to the British crown. If in any sense they might claim the attributes of sovereignty, it was only in that subordinate sense, to which we have alluded, as exercising within a limited extent certain usual powers of sovereignty. They did not even affect to claim a local allegiance.2

§ 211. In the next place, the colonies did not severally act for themselves, and proclaim their own independence. It is true, that some of the states had previously formed incipient governments for themselves; but it was done in compliance with the recommendations of congress.3 Virginia, on the 29th of June, 1776, by a convention of delegates, declared "the government of this country, as formerly exercised under the crown of Great Britain, totally dissolved;" and proceeded to form a new constitution of government. New-Hampshire also formed a government, in December, 1775, which was manifestly intended to be temporary, "during (as they said) the unhappy and unnatural contest with Great Britain." New-Jersey, too, established a frame

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1 1 Chalmers's Annals, 686, 687; 2 Dall. 470. Per Jay C. J.

2 Journal of Congress, 1776, p. 282; 2 Haz. Coll. 591; Marsh. Colonies, App. No. 3, p. 469.

3 Journal of Congress, 1775, p. 115, 231, 235, 279; 1 Pitk. Hist. 351, 355; Marsh. Colon. ch. 14, p. 441, 447; 9 Hening. Stat. 112, 113; 9 Dane's Abridg. App. § 5, p. 16.

4 2 Belk. N. Hamp. ch. 25, p. 306, 308, 310; 1 Pitk. Hist. 351, 355.