vereignty and independence. On the contrary, it affirms that the sovereign and supreme power of war and peace,' was assumed by congress, and that the exercise of it became legitimate, only because it was approved and acquiesced in; and that being thus legitimated, the appellate jurisdiction in prize cases followed as a necessary incident. All the powers, which Paterson contends for as exercised by congress, may well be conceded, without in the slightest degree affecting the question before us; they were as consistent with the character of a federative, as with that of a consolidated government. He does not tell us to what people he alludes, when he says that the powers exercised by congress were approved and ratified by the people.' He does not, in any part of his opinion, authorize the idea of the author, that congress possessed, before the confederation, by the consent of the people of United States, sovereign and supreme powers for national purposes.' On the contrary, as to one of those powers, he holds the opposite language; and therefore it is fair to presume, that he intended to be so understood in regard to all the rest. This is his language: The authority exercised by congress, in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up the commissions and bonds, and returned the latter to congress.' This approval and ratification alone rendered, in his opinion, the exercise of this, and other similar powers assumed by congress, legitimate.

6

"Judge Iredell, in delivering his opinion, goes much more fully into the examination of the powers of the revolutionary government. He thinks that, as the power of peace and war was entrusted to congress, they held, as a necessary incident, the power to establish prize courts; and that whatever powers they did in fact exercise, were acquiesced in and consented to, and, consequently legitimated and confirmed. But he leaves no room to doubt as to the source whence this confirmation was derived. After proving that the several colonies were, to all intents and purposes, separate and distinct, and that they did not form one people' in any sense of the term, he says, 'If congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shewn, derived from the people of each province, in the first instance.'

The authority was not possessed by congress, unless given by all the states.'-'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 who were permanent inhabitants of each province, in the first instance, and afterwards became citizens of each state; that this authority was conveyed by each body politic separately, and not by all the people in the several provinces or states jointly.' No language could be stronger than this, to disaffirm the author's conclusion, that the powers exercised by congress were exercised' by the consent of the people of the United States.' Certainly Iredell did not think so.

the

"The other two judges, Blair and Cushing, affirm the general propositions upon which Paterson and Iredell sustained the power of congress in the particular case, but lend no support to the idea of any such unity among people of the several colonies or states, as our author supposes to have existed. Cushing, without formally discussing the question, expressly says that he has no doubt of the sovereignty of the states.'

"This decision, then, merely affirms, what no one has ever thought of denying, that the revolutionary government exercised every power which the occasion required; that, among these, the powers of peace and war were most important, because congress, alone, represented all the colonies, and could, alone, express the general will, and wield the general strength; that wherever the powers of peace and war are lodged, belongs also the right to decide all questions touching the laws of nations; that prize causes are of this character; and, finally, that all these powers were not derived from any original grant, but are to be considered as belonging to congress, merely because congress exercised them, and because they were sustained in so doing by the approbation of the several colonies or states, whose representatives they were. Surely, then, our author was neither very accurate nor very candid, in so stating this decision as to give rise to the idea that, in the opinion of the supreme court, congress possessed original Sovereign powers, by the consent of the people of the United States.' Even, however, if the court had so decided, in express terms, it would have been of no value in the present enquiry, as will by-and-by be shewn."

LECTURE III.

We come next to the declaration of independence, and to the novel and original idea, that it did not operate the separate independence and individual sovereignty of the several states, but, that, as the declaration was the united act of all, so it operated to make the united colonies free and independent as one people, and in that character only. This, it is very clear, is the position industriously insinuated by the learned author, although, as usual, he is by no means very specific in stating his proposition, lest, perhaps, it might be the more startling from being more clearly discerned in its first announcement.

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"§ 211. In the next place," says judge Story, "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. (a) 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.'(b) 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 Brirain. (c) And South Carolina, in March 1776, adopted a constitution of government; but this was, in like manner, established until an accommodation between Great Britain and America could be ob

(a) Journal of Congress, 1775, p. 115, 231, 235, 279; 1 Pitk. Hist. 351, 355; Marsh. Colon. ch. 14, p. 441, 447; 9 Hening's Stat. 112, 113; 9 Dane's Abridg. App. § 5, p. 16.

(b) 2 Belk. N. Hamp. ch. 25, p. 306, 308, 310; 1 Pitk. Hist. 351, 355.

(c) Stokes's Hist. Colon. 51, 75.

tained.'(d) 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. (e) 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. (f) 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 connexion 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.(g)

"$212. 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 constitution, a distinguished statesman(h) used the following lan

(d) Stokes's Hist. Colon. 105; 1 Pitk. Hist. 355. (e) Journal 1776, p. 241; Journal 1774, p. 27, 45.

(f) 2 Dall. 470, 471. Per Jay, C. J.; 9 Dane's Abridg. App. § 12, 13, p. 23, 24.

(g) 2 Dallas's R. 470.

(h) Mr. Charles Cotesworth Pinckney.