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406 MANIFESTATION OF NATIONALITY.

1

that national power would have been exercised or manifested if any State or minority of States had refused to co-operate with the majority, in the assumption of national power.1

§ 345. The delegates in the Kevolutionary General Congress which July 4th, 1776, "in the name and by the authority of the good people of these colonies," declared the "united colonies" to be "free and independent States," received their powers under electoral agencies differing greatly in their connection with the people whom they assumed to represent.*

In or by the Confederation, the integral people of the United States exercised national power by the intervention of the same organs of government which they employed in their local or State Governments.*

In or by the Constitution, the same people, without a revolution, without any shifting of the seat of sovereign power,4— exercised national power by a Government instituted by the direct action of the people of each State.5

This nationality or integrity of the people of the United States, coexistent with a separate possession and exercise of sovereignty for local or State purposes, has continued in a NATIONAL AND STATE SOVEREIGNTY. 407 manner and form more or less distinctly recognized, from the period of the separation of the colonies from the mother country to the present;1 and no former colony, nor any State, nor the people of such, has appeared in international action with foreign states, or in intercourse with the other colonies or States, as using severally all the powers inherent in sovereignty; while they have each, that is, the people of each, used or held some of those powers independently and without claim of control from each other or any majority of the whole.*

1 Significant, in illustrating the abnormal condition of the revolted colonies, are the proceedings in the General Congress relative to the Parish of St. John's in Georgia, which sent a delegate three months before any were sent to represent that colony. Journals of the first Congress, May 13, 15, 27, 1775; and their reception of the Mecklenburg Declaration.

* 1 Curtis' Hist, of Cons., p. 13, note.

* The same, p. 245. 1 Kent's Com. 208; Journ. Cong. May, 1775, p. 69-74.

* An opposite doctrine has the authority of the opinion of the court in Dred Scott's case, 19 Howard, 441: "The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But when the present United States came into existence under the new Government, it was a new political body, a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which, it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution."

s Federalist, No. 39, McCulloch vs. Maryland, 4 Wheat R., 314. 1 Curtis' Hist, of the Const., p, 373. Resolution of the Congress of the Confederation, 28 Sept., 1787, that the report of a constitution for the people of the United States mode by the convention " with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof, in conformity to the resolves of the convention made and provided in that case." And resolution of Sept. 13,1788, reciting the above and declaring the constitution to have been ratified accordingly. Journals of Congress and 1 Rev. Stat, of New York, p. 17.

§ 346. If the language of the Constitution does not base its authority upon or recognize any other theory, and if for aught that appears from it, independent of theory, it may be merely declaratory or constituting, not granting, giving, or conveying, (except in the institution of a subordinate Government,3) and if the facts which led to the actual customary recognition of the written Constitution do not contradict the view,4 it may be 408 THEORY OF DISTRIBUTED SOVEREIGNTY. justly regarded as the necessary and only doctrine of law, under the instrument, that the powers assigned by it to the Government of the United States are equally original and sovereign in the hands of a political unity, called the people of the United States, as the sovereign powers not so granted and not prohibited to the several States are original in the possession of the people of the several States; that is, the Constitution, as a political feet, is evidence of the investiture of certain sovereign national powers in the united people of the States, antecedent to the Constitution, as well as of the residue of sovereignty in the same people in their several condition of the people of distinct States. It being here taken as a principle, independent of the Constitution, that sovereignty is not necessarily, in theory or practically, concentrated in one locality: its place being determined, as any other fact, from historical evidence.1

11 Kent's Comm. (6th ed.) 217, note citing authorities.

In the second Article of Confederation it was declared, "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in Congress assembled." This is urged as proving each State to have been possessed of integral national sovereignty, (1 Calhoun's W. p. 148, 149.) But since no declaration of sovereignty can be more than evidence, it may, as such, be compared with other testimony. So, too, the declaration of July 4th asserted the colonies to be free and independent States. But declaring a state of things, does not make it. The question still is, how did these States hold sovereign power? The accompanying declarations of an existing state or condition of private persons, "that all men are created equal," &c., and have "unalienable rights," did not determine any private conditions, even though the state of private persons is the effect, and not, like sovereignty, the cause of law.

* Any adequate reference to the authorities from which this historical summary is supposed to be derived would occupy a disproportionate space, and if attempted, would, probably, be unsatisfactory, since all the written histories of this period are viewed with various degrees of deference by persons differing in political sentiment. Pitkin's History of the United States presents the leading events in a simple form of narration, yet with special reference to their bearing on the political or public law of the Union. Chapters vi, vii, xi, and xix of that work may be noted as relating to the period here referred to.

* Throughout the six Articles of the Constitution the people of the U. S. grant powers to different departments of a Government, and being granted as separate functions of government, the Government holds those powers under a law. The only instance in which an assignment of powers to the United States is spoken of, is in the tenth Amendment, where it is called a delegation. "The powers not delegated to the United States by the Constitution," Ac. This is, in fact, a discrepancy with the main instrument, and should be construed to harmonize with it, not to alter it; no powers being therein granted or delegated to the U. S., but to the Government; the U. S., the people of the U. S., being the granting or delegating party. Comp. 1 Calhoun's W. p. 240.

4 Compare the summaries of the facts in Calhoun's Essay, 1 Works, 188-190, and in 1 Story's Comm. § 109-115.

This will hereinafter be assumed as the obvious legal doctrine on this point; wherever, in the absence of judicial decisions, it becomes necessary to refer to any such theory for the construction of the instrument.

And in accordance with this view, the term national Government will be used as a proper designation for the Government established by this Constitution.'

'Compare on this point the remarks in the beginning of ch. vii. Judge Wilson, (one of the signers of the Deelaral ion of Independence,) in Cbisholm r. Georgia, 2 Dallas, p. 41!). Judge Paterson, (one of the framers of the Constitution,) in Talbot r. Janson, 3 Dallas, p. 154, speaking of "sovereignties in a sovereignty." Mr. Grimke, in State v. Hunt, 2 Hill's So. Car. R. p. 39, epoke of divided sovereignty as having been exemplified in the feudal institutions of Kurope. Other counsel in that case, see p. 97, spoke of it as an impossibility.

* Mr. Calhoun, 1 Works, pp. 114, 118, admits that the use of the term, as distinguished from federal or general, has become prevalent. And, in harmony with this view, the word State, when applied to a member of the American Union, is herein commenced with the capital letter, as being a proper noun, and thus intended to be distinguished from state, the common noun. The States, united and several, constitute a state; but the individual States are not states. This view is at least consistent with much of earlier juristical opinion. See Martin v. Hunter, 1 Wheaton, 304, 323, 352; and the greater part of that referred to, as presenting the true doctrine, in Story's Comm. B. iii. ch. 3; and, as presenting the false doctrine, in Baldwin's Const Views, pp. 13-17.

It will not be here attempted to state any other theory as being, in all points, supported by this or that publicist. The bulk of juristical authority is unquestionably in favor of the doctrine that at the Revolution the States became each a several and individual political state, nationality, or complete sovereignty. Compare 3 Dallas, 199; 4 Cranch, 212; 19 Howard, 502; Life of Elbr. Gerry, vol. i. p. 139; Sims'case, 7 Cushing, p. 275, 317; see also, Gibbons r. Ogden, 9 Wheatou's R. 187; 1 Tucker's

TERRITORIAL JURISDICTION. 409

§ 347. The geographical dominion of any possessor of sovereign power, is, in jurisprudence, determined in the same manner as the seat or investiture of that power; that is, by the actual exercise of that power, in reference to certain territory. The exercise of such power being essential to the existence of law, regarded as the rule proceeding from the holder of that power, its legitimacy is a political question and not a legal one,

Blackstone, App. passim; 1 Calhoun's W. p. 190; Baldwin's Const. Views, pp. 75-81. In connection with this doctrine, it is maintained by some, that, by the adoption of the Constitution a perpetual grant, cession, or absolute transfer of a portion|of the sovereign powers of each State was made, and that the powers now held by the Government of the U. S. are possessed, as of inherent right, either by that Government or by the people of the U. S. regarded as one political body; the residue of power being held by each State severally, and as before. Apparently so in Dred Scott's case, 19 Howard's R. 441, opinion of the court; sec also, 1 Curtis' Hist, of the Const 331.

Under another theory, the States or the people of the several States are regarded as still continuing individually sovereign states in the fullest sense; and as continuously and presently delegating a portion of the sovereign power, still inherently possessed by them, to a jointly deputed government adapted to certain common interests and objects. Under this theory the Constitution is regarded as the written evidence of a treaty, compact, contract, league, federative union, Ac., between sovereigns each severally having power to judge of the nature and obligation of that contract, and to terminate its duration and effect upon itself according to its several autonomic judgment; limited only by such principles as may limit the action of all sovereign states or nations. See, especially, Calhoun's Works, vol. i. p. 161, iii. 149. Resolutions and Speech in Senate, Feb. 26, 1833, in vol. ii. 262, and in the same voL p. 34; Report of Committee in S. C. Convention, Nov. 24, 1832. Baldwin's Const. Views, passim.

This theory of a league or federative union may have modifications, under different views of the nature or obligation of the contract and grant; all, with greater or less consistency, agreeing in ultimately placing an entire national sovereignty in the people of each State, severally. Compare debate in U. S. Senate on Mr. Foot's resolution, in 1830; 4 Elliott's Debates, p. 315-330; 3 Webster's Works, p. 248, 270; Story's Comm. § 321 and the references; De Tocqueville's Democracy, &c., part 1, ch. viii.; 1 Tucker's Bl. Comm. App. pp. 65, 175, 187.

Another theory, the extreme opposite of that last stated, appears to have had its advocates. This regards the United States or the people of the United States, as a pre-existing political unity, independently of the Constitution, holding the entirety of ultimate sovereign power, and supposes the States or the several people of those States to hold their several powers by the will or consent of the whole people or nation, or by public law emanating from that integral possessor of undivided sovereign power, and expressed in the Constitution. See Dane's Abridgment, § 2, p. 10, &c. Judge Story, citing this authority, seems to have inclined to the same view, though contenting himself with opposing the doctrine that the States are severally sovereign; Story's Comm. B. III. c. 3, and the copious references to leading opinions.

These two theories have this point of resemblance, that the present location of the ultimate sovereignty is, by each, considered the same which had existed from the first moment of separation from Great Britain, viz., originally, and now, ultimately, in the nation; or originally, and now, ultimately, in the States severally. (1 Calhonn's Works, 162-165, calling the Constitution a change of organization only.)

Further, these two theories would be equally supported by the doctrine assumed by many as an axiom, that sovereign power, to be such, must of necessity be ultimately found concentrated or centralized in some one political unity; either a single person, or a collection of persons acting as one. (1 Calhoun's Works, p. 122, 140.)

410 EXTENT OF TKRBITOEIAL DOMINION.

except in connection with public international law, which is law only in an imperfect sense.1

The colonies which formed the States of the American republic at the period of separation from the British empire were thirteen; viz., Virginia, Maryland, Massachusetts, New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Delaware, North and South Carolina, and Georgia. At that period the boundaries of some of these States under their colonial patents and charters were unsettled, and the claims under the patents, in many instances, conflicting. Under the political relations of the States bearing these names, these claims have been adjusted and their boundaries settled as they are at present. Portions of Virginia, New York, and Massachusetts have, with the consent of those States and of the national government, been organized as the several States, Kentucky, Vermont, and Maine ; with like investiture in the political people of each as in the people of the other States, of a several possession of sovereign powers for local or State purposes, and of other sovereign powers in common with the people of the original States for national purposes. The remainder of territory not included within the present limits of the claimant States was ceded by them to the United States or the people thereof, with all rights of sovereignty over the same, though in certain cases with stipulations, the effect of which will be hereafter noticed. This territory consisted of all that district west of the thirteen original States, and, exclusive of Kentucky, as far as the Mississippi river and the eastern limits of the French province of Louisiana, bounded on the north by the British possessions lying on the St. Lawrence and the great lakes, and on the south by the Floridas, then belonging to Spain.

§ 348. In addition to this territory ceded by the several States, the United States have acquired by treaty or conquest, legalized, so far as treaties and conquests can be said to be legalized, by international public law—the territories completing the geographical dominion now known to the rest of the world as that

1 Luther v. Borden, 7 Howard, 56.

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