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ORGANS OF THE REVOLUTION. 401
to the fact of their possession of power, which was founded on revolution—the exercise of autonomic force, and was a law in the secondary sense only.
§ 340. The several acts composing the Revolution proceeded from bodies of various political character and authority, being partly the acts of legislative assemblies representing the popular element under the old local Governments, and partly of bodies entirely revolutionary in their origin and purpose, deriving their authority from the choice and sanction of local majorities among the electors of" districts varying very much in geographical extent and political importance, as compared with the entire colonial district of which they formed a part.1 The individuals who, in the beginning of the Revolution, visibly exercised powers not held by the colonial Governments, under the previous order of things, or powers incompatible with the maintenance of that order, may have been members of those Governments at the time, and may thus have represented separate colonial polities, or what had been such under the public law of the empire. But by the revolutionary action they must have lost whatever in that political character represented the power of the crown, or the imperial authority, exercised in and for a distinct province or colony. So far as they had a political character derived from the previously recognized local element of sovereignty, they may still have claimed to represent la distinct polity, replacing, or succeeding to the provincial. But they could not have had, from that previous political character, the capacity to exercise powers which had not before been held by them in virtue of that local element of sovereignty, under the public law of the united empire. They could not, by virtue of their previous character of representatives of the local colonial authority, assume to hold powers which were, before, customarily invested in the central imperial Government.
To whatever degree they may have done so, it was as the agents of the freemen, or possessors of the elective franchise, who
1 Graham's Hist of 0. S., vol. 3, p. 374, &o. G. T. Curtis' Hist, of Const, of U. S., vol. I., p. 7, and South. Quart. Rev., Jan. 1856, p. 177-180. Life of Elbridge Gerry, vol. L, ch. 4, 5.
402 POLITICAL PEOPLE OF THE STATES.
now assumed supreme powers as original in themselves, acting in their corporate capacity of the political people of States succeeding to the political people of colonies. It was this portion of the people, in their primary form of organization as the political people of the several States and (hy revolution) of a national state, who exercised sovereign power for national and local purposes, heing the same individuals who had before exercised political powers and rights in the government of a township or county, and shared by representation in the colonial government; their numbers, in each new State, in proportion to the whole number of the inhabitants, depending on previous usage and existing laws. In those colonies where the local Governments had been more immediately derived from a political people, or portion of the inhabitants thus exercising political power, and which were even then distinguished as popular, the forms of their colonial chartered polity were continued. In other colonies, old forms of government more visibly gave way to the assumption of sovereignty by the people. But the political corporeity of the people, as it had existed in the colonial state and had there been manifested, continued1 in the existence of the political people of one of the United States, thereafter exercising, under new forms of representation, independent and supreme powers ; severally, in their particular colonial limits, for State purposes; and for national purposes, in union with the political people of the other revolted provinces.*
1 Therefore the citizens of Mecklenburg County, North Carolina, did not become, on the 19th of May, 1775, what they declared themselves to be, when they rejoiced "that we do hereby declare ourselves a free and independent people, are, and of right ought to be, a self-governing association, under the control of no power other than that of our God and the General Government of the Congress; to the maintenance of which independence we solemnly pledge to each other our mutual co-operation, our lives, our fortunes and our most sacred honor."—And resolved, "that as we now acknowledge the existence and control of no law or legal officers, civil or military, within this country, we do hereby ordain and adopt," <tc. See ante, laws of N. C, p. 296.
'By resolution of the General Congress, May 10 and 15, 1776, "That it be recommended to the respective assemblies and conventions of the United States, where no government sufficient to the exigencies of their affairs has been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general." The Congress of the colony of New York, by resolution, May 31, 1777, expressed doubts of their powers in this respect, and that "it appertains of right solely to the people of this colony to determine said doubts." ( 1 B. S. of N. Y., p. 21, Prefatory to the first State Const.) Mr. Hildreth, voL III., Hist, of U. S., p. 375, says, after sketching the formation of State governments at this time, "for all practical purposes—even to the extent of alterations of the constitution, except in a few States, where different provisions were made—the sovereign power was vested in the respective State Legislatures, which, &c." This view is not generally adopted by jurists, unless of the southern State-rights school. Comp. South. Quar. Rev., April, 1853; review of Calhoun's Essay, p. 398.
NATIONAL AND LOCAL SOVEREIGNTY. 403
§ 341. This change of the possession and investiture of sovereign power was manifested by the united and several constitution of new organs of government, and the investiture and distribution of political powers, for several and united action, in and among such organs. It did not and could not, as to either sphere of action, take place by a perfectly simultaneous or harmonious movement on the part of the political people of all the colonies at once, or through like instrumentalities in each. There may, however, be less difficulty in distinguishing the assumption of some of the powers of sovereignty for national purposes, and the united exercise of them by the people of the new States, than in distinguishing the several assumption by the people of those States, of powers used for local or State purposes.
In some of the colonies the powers of sovereignty formerly exercised by the colonial Governments could hardly be recognized as transferred to the political people of the new State, until after other sovereign powers, of a more national and external character, had been claimed and exercised by the same people as part of the people of the united colonies assuming a national character.1 ^
§ 342. The American colonies, though under separate colonial Governments, each of which exercised or claimed some sovereign powers within their respective territories, or which shared with the imperial Government the possession and exercise of all sovereign powers within such territories, were, equally with the British islands, part of one and the same empire; and, as to each other, were of pne nation, over which the residue of sovereign and national power, beyond that vested in the local Governments, was exercised in a single and undivided manner.
Their separation from the rest of that empire was a single political result, effected by the combined action of the political
1 Compare the facts stated in 8 Hildr., 374, Pitkin's Hist of U. S. c. 6, 7.
404 OBIGIN OF A NATIONAL EXISTENCE
people of the several colonies, manifesting an integral sovereignty by the assumption of that power over their united territories which had formerly been held over the same by the crown and parliament of England. So that while the attributes of sovereignty which had been severally exercised by the colonial Governments were continued in the several possession of the people of the States, and were increased by the several assumption of other powers, the same political people, by a joint assumption of other powers—the residue of sovereignty—and their exercise in a national character, for internal and external relations, presented themselves and all other inhabitants of the country as one people and a sovereign nation among other sovereign nations.1
§ 343. Since the individuals constituting the people, (as above discriminated from the mass of the inhabitants,) had never exercised political rights except as already organized into political bodies preexisting under the colonial condition, they could never have acted in union for national purposes except as ^so primarily organized. They could not have established any general government without acting in the only form of political existence they had had; unless all forms of political organization had been dissolved. For the political capacity of no single individual or natural person was inherent or primordial in himself, but derived from the existence of the colonial corporate body; and it was only these corporate bodies which now, by the revolution, acquired a primordial existence, and held sovereign power by right of fact—right above law.1
Of necessity, therefore, the people of the United States, in combining together for the exercise of sovereign power for national purposes, have not acted as a homogeneous body of individuals, but as organized, for the purpose of such action, into primary political unities identical with those in which they have exercised the residue of sovereign powers severally, for the purposes of a State government_\
* 1 Kent's Comm., page 201;—" The association of the American people into one body politic took place while they were colonies of the British Empire, and owed allegiance to the British crown."
'De Tocqueville, Democ. Id Am., vol. 1., ch. 5, (p. 51,) supposes that the people or freemen of each township constitute collectively the primordial political integer, and that its existence is independent of the collective people of the State. There is much in the early history of the N. E. colonies to justify this idea.^ But, since the revolution, there can be no doubt that in each State sovereignty is vested in the whole body of electors.
MAJORITY RULE, HOW INAPPLICABLE. 405
§ 344. Where, under positive law, a number of persons together constitute a corporate body and where all, in determining the action of that body, have, by law, equal powers, the legal principle obtains that the body acts by the will of the majority, or, that the will of the majority is the will of the corporate body.1 But it is necessarily assumed that the people known as the people of the United States have a primordial existence as the people of the several States, and that, so corporately organized, they possess all their powers by right above law, or by law in the secondary sense only—the statement of the fact. The mode in which they hold or can exercise sovereign power is known only by its actual exercise. Therefore, to maintain the doctrine that the people of the United States have a corporate existence or a corporate possession of sovereign power for the purposes of an integral national existence, it is not necessary to assume that the action of that corporate body has been or would be determined by the will of the majority of the States : or that the principle of action by majority is an element of their corporate existence. And the fact that this national power was exercised by the concurrent action of the people of all the States, and not by the action of the people of a majority of the States, does not indicate that the exercise of this power was the result of a federal union of the people of all the States, each holding the sum of sovereign power in severalty.* Though, in fact, the revolutionary assumption of sovereignty over their united territory was a unanimous act, and though the corporate people of each State acted for that purpose freely and without compulsion from a majority, the sovereignty so exercised may still have been held by them as the constituent parts of an integral nation, and not in severalty. And it is impossible to say how
1 Refertur ad universos quod publice fit per majorem partem (Ulpian.) The public act of the majority is the act of all.
* As is argued in Federalist No. 39 by Madison; and 1 Tucker's Blackstone, App., p. 146; 1 Calhoun's W., p. 150, 151; Baldwin's Const. Views, pp. 18-25.