national capacity, established the present Constitution. It is remarkable that, in establishing it, the people exercised their own rights and their own proper sovereignty; and, conscious of the plenitude of it, they declared with becoming dignity, ' We the people of the United States do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound, and to which the State constitutions should be made to conform." 1 § 51. Conceding, then, that we are a nation, the answer to the question with which we started some pages back Where resides the sovereignty in the United States? - is ready to our hand. It resides, and must reside, in the nation, considered as a political society or body corporate. Back of all the States and of all forms of government for either the States or the Union, we are to conceive of the NATION, a political body, one and indivisible, made up of the citizens of the United States, without distinction of age, sex, color, or condition in life. In this vast body, as a corporate unit, dwells the ultimate power denominated sovereignty. It is this body which declared itself, by the Continental Congress, and under the name of the "United Colonies," to be free and independent: "We, therefore, the representatives of the United States of America, . . . do, in the name and by the authority of the good people of these Colonies, declare that these United Colonies are . . . free and independent States," .. independent, that is, of the crown of Great Britain, not of each other. This body it is which formed the government of the Confederation, granting to it, indeed, few powers, and still leaving many and important ones to the peoples of the several States; and it is this which afterwards, as we have seen, "ordained and established" the present Constitution, parcelling out anew and in different measure, the powers it saw fit to grant at all; giving to the government of the Union broad national powers, making its laws and Constitution supreme, and leaving to the peoples of the States other powers for local purposes, but stamping them with the mark of inferiority, as the parts are severally inferior to the whole. § 52. If I am right in lodging the sovereign power in the 1 See further on this subject, Story's Com. on Const. §§ 210-216. nation, the perplexing question of allegiance is easily determined. Allegiance (alligo) is for the citizen, with respect to the state or sovereign society, what religion (religo) is for man, with respect to God, a dutiful recognition of the bond which connects them, in their relations as subject and sovereign. Allegiance relates to a temporal, as religion does to a spiritual or Divine, sovereign. Accordingly, as it would be sacrilege for a man to recognize as his spiritual sovereign or to acknowledge the bond implied in the term religion as uniting him with any being but God, so it would be an act of treason, in morals if not in law, for a citizen to recognize as entitled to sovereign rights that is, to render allegiance to any person or body, but the true sovereign, the nation. - It is true, nevertheless, in the United States, that although the nation is the only real sovereign, the States are often called sovereign. But this use of the word is proper only as a figure of speech employed out of courtesy to numerous and dignified bodies invested with the exercise, for local purposes, of important sovereign powers. The States, at best, are but quasi sovereign; that is, on account of their permissive supremacy in local State affairs, they are to be treated, to a certain extent, as if they were sovereign; precisely as an ambassador, despatched to a foreign court and there representing his sovereign, is received and honored, on account of his office, as if he were himself the sovereign. § 53. To this quasi sovereignty corresponds a quasi allegiance, which every citizen owes to his State, in subordination to his true allegiance to the nation. This spurious allegiance, how-* ever, so far as it is not a mere act of courtesy, is another name for the obedience due to the ministers of the real sovereign; the truth being, that, in rendering obedience to the government of his State, a citizen of the United States is paying his allegiance to the people of the Union. This obedience is sometimes styled a "qualified allegiance," a thing as absurd as a qualified omnipotence, unless by it be meant an allegiance which is not real but seeming; that is, an act of obedience which would be one of allegiance were the body to which it is paid a sovereign body. Thus, in a late case decided by the Supreme Court of the United States, Justice Grier said: "Under the very peculiar Consti tution of this government, although the citizens owe supreme allegiance to the federal government, they owe also a qualified allegiance to the State in which they are domiciled." Treason is a crime against sovereignty, a violation of one's allegiance. Hence, there is really no such thing as treason against any polit ical body in the Union but the United States. If a State, by its courts, punishes treason, it must be not as treason against itself, but as treason against the Union; and, in this view, the propriety of that State legislation which defines treason against the State and affixes to it particular penalties, is doubtful. It would seem that the only principle on which such legislation can be sustained is, that a State has a right, under its general power of regulating its own internal police, to punish acts dangerous to the peace and safety of its citizens, giving to them such names as it pleases, although the same acts may constitute treason against the United States, and as such be punishable under the laws of the latter. On that principle, State laws have been sustained by the Supreme Court of the United States, affixing penalties to the act of counterfeiting the coin of the United States and other offences against the laws of the Union; the same acts being declared, upon different grounds, having respect to the interests of each, to be crimes against both jurisdictions.2 § 54. 2. I come now to consider the second branch of the question stated, namely, How does sovereignty inhere in the people of the United States? 1 Claimants of the Schooner Brilliant, &c., Appellants, v. The United States, Am. Law Register, Vol. II. (new series) 334. 2 See Fox v. State of Ohio, 5 How. 432. Also, Moore v. The People of Illinois, 14 How. R. 13. Upon the whole doctrine of allegiance, in relation to both the States and the United States, see The State ex rel. M'Cready v. Hunt, and The State ex rel. M'Daniel v. M'Meekin, (the so-called " allegiance cases,") 2 Hill's S. C. R. 1-282. These cases arose in South Carolina, in 1834, in connection with the nullification ordinances of the convention of that State, and involved the whole subject of sovereignty, allegiance, the relation of the States to the Union, and kindred questions. The majority of the court held, that the oath of allegiance prescribed to officers of the militia by the Act of 1833, "to provide for the military organization of this State," was "unconstitutional and void." No constitutional question has ever been discussed with greater ability and learning in the United States, than were those raised in these cases. They were argued for the relators by Mr. Grimke and Mr. Petigru, each clarum et venerabile nomen. To this question two answers may be given : (a). That sovereignty inheres in the people considered simply, that is, as a unit, without conditions, or State or other internal discriminations. (b). That it inheres in the people only as discriminated into and acting in groups by States. To determine which of these answers is the correct one, in my judgment, we need but consider what is involved in the conception of sovereignty inhering in a society under conditions, as where the sovereign body is regarded as capable of acting as such only when discriminated into groups, by States, or otherwise. It is evident, that any particular mode of existence exhibited by sovereignty, except that of inhering in the political body as a unit, must be the result of voluntary regulation by the sovereign itself; be, in other words, a self-imposed limitation, enforceable only by moral sanctions. For, to suppose that sovereignty so inheres in the political body that it can manifest itself only through some particular instrument, or in some particular mode, is to rob the sovereign of its essential attribute, that of perfect freedom, or the power of absolute self-determination. The fact that a particular instrument or mode has become established, may furnish a weighty moral reason why it should be used or followed; but to suppose a power anywhere existing of compelling the employment of either, would be to subject the sovereign to some extrinsic human superior, that is, to make, not it, but another, the real sovereign. § 55. Again: the terms modes and instruments, when used in relation to the manifestation of sovereignty, merely indicate how sovereignty is exercised; refer, in short, to systems of government established by the sovereign, or conceived to be within its competence to establish. To contend, therefore, that sovereignty so exists in the sovereign body that it is exercisable only in some particular mode, or through some particular instrument, is to say, that when government has been once ordained by sovereign authority, the latter ceases, with respect to that government, to be any longer sovereign; in other words, that, in the act of creation, sovereignty leaves the creator, and takes up its abode with the creature. The error upon which such an hypothesis rests, is that of taking the secondary forms into which the sovereign body resolves itself as being severally the primary, substantial, and necessary form of sovereignty itself. On the contrary, that only can be the ultimate and essential form, which precedes the establishment and survives the dissolution of all those special adjustments needed to bring into regular exercise the powers of sovereignty, which constitute government. § 56. To a full comprehension of the analysis exhibited in the last two sections, it is necessary to consider further, with reference to some particular form of government, as that of the United States, what is signified by the terms, the exercise of sovereign powers. By the exercise of sovereign powers is meant either, 1. The regular, which, historically considered, is commonly, also, in constitutional governments, the actual exercise of it; and, 2. The possible exercise of it, a field of indefinite extent, commensurate with the needs of the sovereign body, as determined by itself. To be regular, unquestionably, the exercise of sovereignty must be conformable to established rule (regula); that is, to the Constitution and laws at the time in force. This is true by whomsoever it be exercised; that is, whether by the sovereign body, acting as an organic whole, directly,—if that be possible, or by functionaries, by itself charged with governmental duties. The possible exercise of sovereignty, on the other hand, as contradistinguished from the regular exercise of it, is that which, conforming to no rule, would be exhibited were the sovereign body to manifest its powers of sovereignty independently, or in violation, of an established rule, following, instead, its own arbitrary will. This exercise of sovereignty is irregular, and is to be characterized simply as such, or as revolutionary, according to the extent of the irregularity. But by the word possible, as applicable to this exercise of sovereignty, is meant possible only in fact, not legally possible. The possibility in fact of such an exercise of sovereignty, however, is a circumstance of vast significance, under all forms of government which it would be well if statesmen kept more constantly in mind. In the United States, doubtless, if there is anywhere in it lodged a truly sovereign power, there lies, outside the narrow limits which bound the regular exercise of it, a wide space, in which the sovereign may expatiate in the exercise |