Delaware entered it in February 1779, and Maryland in March 1781. Each of these States entering into it did so as a distinct, separate, Sovereign political body. This was "the Union" of the Confederation, as you styled it. Mr. Curtis, in his History of the Constitution of the United States, to which I have just referred, in speaking of "this Union," says: "the Parties to this instrument (the Articles of Confederation) were free, Sovereign, political Communities each possessing within itself all the powers of Legislation and Government over its own citizens, which any political Society can possess."+

This, I assume, then, as an unquestionable truth or fact in our History, from which we may start in our inquiry.

JUDGE BYNUM. I am not prepared to grant that. If I recollect correctly, Judge Story, in his Commentaries on the Constitution of the United States, utterly overthrows and refutes the facts upon which that assumption is based. He denies that the States were ever separate distinct Sovereign, political Societies or bodies. He maintains that the people of the United States became one Nation even before the Articles of Confederation were entered into, and that the Sovereignty of the whole was merged into one during the joint struggle of all for independence, which was achieved by the whole for the whole, and not for parts separately. Have you Story on the Constitution? I am a disciple of Story on this question, as well as on all other questions of Constitutional law! I think Motley, the historian, also takes the same view of this subject as Story. Have you at hand what these writers have said on this point?

MR. STEPHENS. Yes; I have Story's Commentaries on

* Elliot's Debates, vol. i, p. 78.

† Curtis on the Constitution of the United States, vol. i, p. 142.

the Constitution, and also Mr. Motley's article to the London Times, to which, I suppose, you refer. I am quite familiar with both. Here is what you refer to in Story, I suppose. Volume i, Book ii, Chap. i, § 210.

JUDGE BYNUM. Yes, this is it. Now hear what he says and see how completely he disproves the fact upon which your whole argument is about to be founded.

"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. 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, Sovereign States; but were dependencies of Great Britain. They could make no treaty, declare no war, send no ambassadors, regulate no inter

course or commerce, nor in any other shape act, as Sovereigns, in the negotiations 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.

"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. 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 of Government, on ' the 2d of July, 1776; but it was expressly declared that it should be void upon a reconciliation with Great Britain. And South Carolina, in March, 1776, adopted a Constitution of Government; but this was, in like manner, 'established until an until an accommodation between Great Britain and America could be obtained.' But the Declaration of the Independence of all the Colonies was the united act of all. It was a Declaration by the Representatives of the United States of America, in Congress

assembled ;' by the Delegates, appointed by the Good People of the Colonies,' as in a prior Declaration of Rights they were called. It was not an act done by the State Governments, then organized; nor by persons chosen by them. It was, emphatically, the act of the whole People of the United Colonies, by the instrumentality of their Representatives, chosen for that, among other purposes. It was an act, not competent to the State Governments, or any of them, as organized under their Charters, to adopt. Those Charters neither contemplated the case, nor provided for it. It was an act of original, inherent Sovereignty, by the People themselves, resulting from their right to change the form of Government, and to institute a new Government, whenever necessary for their safety and happiness. So the Declaration of Independence treats it. No State had presumed, of itself, to form a new Government, or to provide for the exigencies of the times, without consulting Congress on the subject; and when they acted, it was in pursuance of the recommendation of Congress. It was, therefore, the achievement of the whole for the benefit of the whole. The People of the United Colonies made the United Colonies free and independent States, and absolved them from all allegiance to the British Crown. The Declaration of Independence, has, accordingly, always been treated as an act of Paramount and Sovereign authority, complete and perfect, per se; and, ipso facto, working an entire dissolution of all political connection with, and allegiance to, Great Britain. And this, not merely as a practical fact, but in a legal and Constitutional view of the matter by Courts of Justice.

"In the debates in the South Carolina Legislature, in January, 1788, respecting the propriety of calling a Convention of the People, to ratify or reject the Constitu

tion, a distinguished Statesman used the following language: This admirable manifesto [i. e., the Declaration of Independence] 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: "We, therefore, the Representatives of the United States, etc., do, in the name, etc., of the Good People of these Colonies, solemnly publish, etc., that these United Colonies are, and of right ought to be, free and independent States.'" 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 could never 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.

"In the next place, we have seen that the power to do this act was not derived from the State Governments; nor was it done generally with their co-operation. The question, then, naturally presents itself, if it is to be considered as a National act, in what manner did the Colonies become a Nation, and in what manner did Congress become possessed of this National power? The true answer must be that, as soon as Congress assumed powers, and passed measures, which were, in their nature,