serenely conscious of the fact, they avoided the ostentatious declaration." 1 Concluding an exhaustive examination of the Constitution, Justice Wilson thus announces his opinion on the ultimate question with which he began, Are we a nation? "Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive, and judiciary; and, in all those powers, extending over the whole nation." 2

§ 47. It would be easy to fill these pages with judicial opinions confirmatory of these views, but space will not permit.3 I confine myself to such as were delivered before the heresies of the Kentucky and Virginia resolutions were broached, while the government of the Union was running under its original impulse, and before the party platform had been elevated into an ulterior constitution, assuming to control the exposition of that which the fathers had formed.

4

A few citations will now be made of the opinions of statesmen, historians, and publicists, of a later period, to whom has been accorded authority on constitutional questions. Thus, Washington, in a letter of June 8, 1783, said: "It is only in our united character that we are known as an empire, that our independence is acknowledged, that our power can be regarded, or our credit supported abroad." So, still more explicitly, in his first inaugural address of April 6, 1789, he said: "Every step by which they" (the United States) "have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency." In his history of the American Revolution, published in 1789, and afterwards in his history of the United States, Dr. Ramsay says: "The act of independence did not hold out to the world thir

1 Chisholm, Ex'r, v. State of Georgia, 2 Dall. 454.

2 Id. 465. See also the opinions in the same case of Justices Cushing and Blair, and of Chief Justice Jay.

3 See, on the whole subject, Martin v. Hunter, 1 Wheat. 304 (324); McCullough v. The State of Maryland, 4 Wheat. 316.

4 5 Marsh. Washington, p. 48.

5 Presidential Speeches, p. 31.

teen sovereign States, but a common sovereignty of the whole in their united capacity." So, General C. C. Pinckney, in a debate in the South Carolina House of Representatives, in 1788, speaking of the Declaration of Independence, said: "This admirable manifesto sufficiently refutes the doctrine of the individual sovereignty and independence of the several States. In that declaration the several States are not even enumerated, but after reciting, in nervous language, and with convincing arguments, our right to independence, and the tyranny which compelled us to assert it, the declaration is made in the following words. . . . . The separate independence and individual sovereignty of the several States were never thought of by the enlightened band of patriots who framed this declaration. The several States are not even mentioned by name in any part, as if it was intended to impress the maxim on America, that our freedom and independence arose from our union, and that, without it, we never could be free or independent. Let us, then, consider all attempts to weaken this Union, by maintaining that each State is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses." 2 Charles Pinckney, also, in his observations on the plan of government submitted by the Federal Convention, said: "The idea, which has been falsely entertained, of each being a sovereign State, must be given up, for it is absurd to suppose that there can be more than one sovereignty within a government." 3

§ 48. Coming down to later times, I shall first cite the opinion of Mr. Grimke, a South Carolinian without guile and of eminence not inferior to that of the great names of the Revolution. Commenting on the opinions of the two Pinckneys, given in the last section, in the celebrated "allegiance cases," argued before the Court of Appeals of South Carolina, in 1834, Mr. Grimke said: "I do not fully agree with either of the Pinckneys, but certainly the truth that the United States constitute one nation, and that the States are not nations, is found in various forms scattered all along the highway which our country has been travelling since 1776. It would be difficult to find his1 Ramsay's Hist. U. S. Vol. III. pp. 174, 175.

2 4 Ell. Deb. p. 301.

3 Quoted by Mr. Grimke, arguendo, in 2 Hill's S. C. R. 57.

torical evidence on any point more full, particular, and various." To the same effect, Chancellor Kent, speaking of the colonies in 1776, in his Commentaries, says: "Gradually assuming all the powers of national sovereignty, they at last, on the 4th of July, 1776, took a separate and equal station among the na tions of the earth, by declaring the united colonies to be free and independent States."1 So, John Quincy Adams, referring to the same declaration, in 1831, said: "By the Declaration of Independence, the people of the United States had assumed and announced to the world their united personality as a nation, consisting of thirteen independent States. They had thereby assumed the exercise of primitive sovereign power; that is to say, the sovereignty of the people." 2 Justice Story makes a similar observation. "From the moment," he says, "of the declaration of independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto, having a general government over it created, and acting by the general consent of the people of all the colonies." These authorities are of great interest, as indicating that the point of time when we first announced ourselves to be a nation, preceded the establishment of the present Constitution by about thirteen years. We were, then, a nation during all the long eclipse of the Confederation, whilst unwise jealousy was preventing the constituent peoples of the Union from admitting in their government the most salient and the most salutary fact of their history, namely, that they were one people forever, until driven to do so by the overwhelming pressure of

events.

3

§ 49. So far, then, as the question, Where does the sovereign power in the United States reside? depends upon the other question, Are we a nation? we are entitled to affirm that that power resides in the people of the United States constituting the American nation. Before formally drawing that conclusion, however, I desire to refer to a few authorities, from which it may be gathered that there has never been a time in our history when the States were sovereign; and I shall do so at some length, because, it is obvious that if the States were not sovereign at any time before the establishment of the present govern

1 1 Kent's Com. 208.

2 Eulogy on Monroe, in Lives of Madison and Monroe, p. 236.

3 Story's Com. on Const. § 215.

ment, they cannot be so now, after having been shorn of many powers before that undoubtedly exercised by them, and at the same time not reinforced by a concession of new ones.

In the Federal Convention, in 1787, Mr. Madison, as reported by Mr. Yates, delegate from New York, said: "There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The States never possessed the essential rights of sovereignty. These were always vested in Congress. Their voting, as States, in Congress, is no evidence of sovereignty. The State of Maryland voted by counties. Did this make the counties sovereign? The States at present are only great corporations, having the power of making laws, and these are effectual only if they are not contradictory to the general Confederation. The States ought to be placed under control of the general government, at least as much so as they formerly were under the King and British Parliament." 1

§ 50. The opinion expressed thus in the Convention, that the States had never been sovereign, was in effect confirmed by the Supreme Court of the United States in 1795, in a case of prize, occurring under resolutions of the old Congress of the Confederation, passed in 1775. One question made in the case was, whether that body had power to authorize the taking of prizes, which properly belongs to the sovereign power. It was decided that it had. Justice Paterson said: "The question first in order is, whether Congress, before the ratification of the Articles of Confederation, had authority to institute such a tribunal," ("Commissioners for Appeals," for prize cases,) "with appellate jurisdiction in cases of prize? Much has been said respecting the powers of Congress. . . . . The powers of Congress were revolutionary in their nature, arising out of events, adequate to every national emergency, and coextensive with the object to be attained. Congress was the general, supreme, and controling council of the nation, the centre of union, the centre of force, and the sun of the political system. To determine what their powers were, we must inquire what powers they exercised. Congress raised armies, fitted out a navy, and prescribed rules for their government. Congress conducted all

1 Yates' Minutes, in Vol. I. of Elliott's Deb. pp. 461, 462. I do not use Madison's report of the same debate in this case, because, though not contradictory of Yates, it is very brief.

....

military operations, both by land and sea. Congress emitted bills of credit, received and sent ambassadors, and made treaties; Congress commissioned privateers. . . . . These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America. In Congress were vested, because by Congress were exercised, with the approbation of the people, the rights and powers of war and peace. In every government, whether it consists of many states or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy, and incidental thereto is the question of prize. The question of prize grows out of the nature of the thing. If it be asked, in whom, during our Revolutionary war, was lodged, and by whom was exercised, this supreme authority? no one will hesitate for an answer. It was lodged in, and exercised by, Congress; it was there or nowhere; the States individually did not, and with safety could not, exercise it." 1 So Chief Justice Jay, in a case in the same court, before referred to, said: "The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State Conventions, and other temporary arrangements. From the crown of Great Britain the sovereignty of their own country passed to the people of it. . . . The people . . . continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly. Afterwards, in the hurry of the war and in the warmth of mutual confidence, they made a confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it, and then the people, in their collective and

1 Penhallow v. Doane's Administrators, 3 Dall. 54 (80). As the learned judge founds what he calls the sovereignty of Congress upon the acquiescence or approbation of the people, and implies that, without it, the power would not have belonged to that body, it is evident that he is in error in lodging sovereignty with Congress at all. The exercise of sovereign powers was permitted to that body by the people of the United Colonies, who were the true sovereign; (see post, §§ 55, 56.) This error, however, does not affect the general soundness of his argument, which in effect lodges the power of sovereignty with some other than the States.

2 Chisholm, Ex'r, v. State of Georgia, 2 Dall. 419 (470).