out the intervention of the ordinary functionaries." Admit it. But in what sovereign capacity? In the capacity of one people, composing one political society, and one sovereignty throughout British America, or as separate people of distinct political societies, uniting together as such for common defence and the maintenance of rights which were common to them all? This is the true issue, and history leaves no doubt how it should be decided. The colonies had always been independent of each other, though subject to the crown. The king was the only knot which bound them together. Did the cutting off the common head unite them into one body? Did cutting the knot have the effect of binding them more closely instead of leaving, to each, entire sovereignty and independence, except so far as it might be voluntarily vested in a common agent, the congress of the United States? Surely not. By cutting the only bond which served to hold them together, they became separate and independent states. Their rebellion was not as one people, but as thirteen states. They were not bound to rebel together; for Canada, which stood in the same position with themselves, never did rebel, and the thirteen states had no right to compel her to do so.(b) We can look upon them as acting in no other manner than as communities distinct and independent of each other, each resolving for itself, judging for itself, acting for itself. And so they looked upon themselves. They were commanded by no authority to assemble in congress. The measure was simply recommended by one of the sister states. The members were appointed in each state according to its own

(b) "When the obnoxious acts passed," says judge Iredell, 3 Dall. 92, "if the people in each province had chosen to resist separately, they undoubtedly had equal right to do so as to join in general measures of resistance with the people of the other provinces, however unwise and destructive such a policy might and undoubtedly would have been."-"If congress previously to the articles of confederation possesed any authority, it was an authority derived from the people of each province in the first instance." "I conclude, therefore, that every particle of authority which originally resided either in congress, or in any branch of the state governments, was derived from the people of each province: that this authority was conveyed by each body politic separately, and not by all the people in the several provinces or states jointly, and of course that no authority could be conveyed to the whole but that which previously was possessed by the several parts," &c.

pleasure, under its own electoral regulations, and with powers and discretion prescribed by each, and were, moreover, liable to recall. The members when elected voted by states; (c) giving to the smallest state in the Union the same weight in the deliberations of the body with the largest. This is of itself conclusive of the character of the body, as representing, not one great people, but thirteen independent states, who thus united in action and in council for common benefit. But this is not all :-every thing in our revolutionary annals distinctly proves, that congress represented states alone, and acted only upon states. Its wants were supplied by requisitions: its commissions were countersigned by the states. It powers were at first little more than advisory, though the exigencies of the revolution compelled them on many occasions to extend them. 3 Dall. 91. As soon as the provinces took up arms, each state stood of itself as rebel, or quasi sovereign: each in that character assumed upon itself to act; each in that character might have treated and made peace. That character they held before a congress was appointed. In that character they stood when it was created. It was the creature of those who were de facto sovereign; and all its powers were not only derivative, but derivative from bodies politic, or societies of people distinct and separate, in the assumed character of sovereign, during the convulsions of the time. Notwithstanding the existence, also, of the congress, the states exercised every attribute of sovereignty. Among the memorable instances of this was the act of this venerable commonwealth, the common mother of us all, in declaring herself independent anterior to the 4th of July 1776, and before that measure had been adopted by the thirteen states in congress assembled. Such was assuredly the effect of the resolutions of the Virginia convention on the 15th day of May 1776. By those resolutions it was distinctly declared, that "there was no alternative left but abject submission or total separation;" it was therefore recommended to congress to make a general declaration of independence for all the states, and a committee was appointed to prepare a declaration of rights and a plan of government; all of which was equivalent to an assertion by the state of

(c) 1 Story, § 202.

her right to self-government, and to take her stand as an independent power among the nations of the earth. And so the ablest minds have ever regarded it. Postponing for a while, a quotation from judge Upshur's Review of a most interesting passage upon this subject, I shall here offer the vigorous remarks of a very able judge in support of my positions. They were delivered in the celebrated case of Ware v. Hylton, 3 Dall. 199. In that case, it is said by Mr. Marshall, (afterwards chief justice of the United States,) that it had been conceded in the argument that Virginia in 1777 was an independent state, and as such, competent to pass confiscation laws. In delivering his opinion in the case, judge Chase declares the right of confiscation (which is a jus belli, belonging to the sovereign alone,) to have resided only in the legislature of Virginia in relation to the claims of her enemy's people within her territories. He then proceeds: "It is worthy of remembrance, that delegates and representatives were elected by the people of the several counties and corporations of Virginia, to meet in general convention, for the purpose of framing a NEW government, by the authority of the people only; and that the said convention met on the 6th of May, and continued in session until the 5th of July 1776; and, in virtue of their delegated power, established a constitution, or form of go vernment, to regulate and determine by whom, and in what manner, the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and fountain of all power, that could be rightfully exercised within its limits; they had therefore an unquestionable right to grant it to whom they pleased, and under what restrictions or limitations they thought proper. The people of Virginia, by their constitution or fundamental law, granted and delegated all their supreme civil power to a legislature, an executive and a judiciary; The first to make; the second to execute; and the last to declare or expound, the laws of the commonwealth. This abolition of the old government, and this establishment of a new one, was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connexion with, Great Britain, absolutely and forever ceased; and no formal declaration of independence was

necessary, although a decent respect for the opinions of mankind required a declaration of the causes, which impelled the separation; and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable, that the legislature of Virginia, established as I have stated by the authority of the people, was forever thereafter invested with the supreme and sovereign power of the state, and with authority to make any laws in their discretion, to affect the lives, liberties and property of all the citizens of that commonwealth, with this exception only, that such laws should not be repugnant to the constitution or fundamental law, which could be subject only to the control of the body of the nation, in cases not to be defined, and which will always provide for themselves. The legislative power of every nation can only be restrained by its own constitution: and it is the duty of its courts of justice not to question the validity of any law made in pursuance of the constitution. There is no question but the act of the Virginia legislature (of the 20th of October 1777) was within the authority granted to them by the people of that country; and this being admitted, it is a necessary result, that the law is obligatory on the courts of Virginia, and, in my opinion, on the courts of the United States. If Virginia, as a sovereign state, violated the ancient or modern law of nations, in making the law of the 20th of October 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law. Suppose a general right to confiscate British property, is admitted to be in congress, and congress had confiscated all British property within the United States, including private debts, would it be permitted to contend in any court of the United States, that congress had no power to confiscate such debts, by the modern law of nations? If the right is conceded to be in congress, it necessarily follows, that she is the judge of the exercise of the right, as to the extent, mode and manThe same reasoning is strictly applicable to Virginia, if considered a sovereign nation; provided she had not delegated such power to congress, before the making of the law of October 1777, which I will hereafter consider.

ner.

"In June 1776, the convention of Virginia formally declared, that Virginia was a free, sovereign and independent state; and on the 4th of July 1776, following, the United States in congress assembled, declared the thirteen united colonies free and independent states; and that as such, they had full power to levy war, conclude peace, &c. I consider this as a declaration, not that the united colonies jointly, in a collective capacity, were independent states, &c., but that each of them was a sovereign and independent state; that is, that each of them had a right to govern itself by its own authority, and its own laws, without any control from any other power upon earth.

"Before these solemn acts of separation from the crown of Great Britain, the war between Great Britian and the united colonies, jointly and separately, was a civil war ; but instantly, on that great and ever memorable event, the war changed its nature, and became a PUBLIC war between independent governments; and immediately thereupon ALL the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia; and all the former political connexion between Great Britian and Virginia, and also between their respective subjects, were totally dissolved; and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the present war between Great Britain and France. Vatt. Lib. 3, c. 18, s. 292 to 295; lib. 3, c. 5, s. 70, 72 and 73.

"From the 4th of July 1776, the American states were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. On the 6th of February 1778, the king of France entered into a treaty of alliance with the United States; and on the 8th of October 1782, a treaty of amity and commerce was concluded between the United States and the states general of the United Provinces. I have ever considered it as the established doctrine of the United States, that their independence originated from, and commenced with, the declaration of congress, on the 4th of July 1776; and that no other period can be fixed on for its commencement; and that all laws made by the legislatures of the several states, after the declaration of independence, were the laws of sovereign and independent governments."