the United States fulfils all the requirements which have been mentioned as necessary to the existence of a nation; that the people thereof is an independent, separate political society with its own organization and government, possessing in itself inherent and absolute powers of legislation; that by its Constitution it has created a government as its agent for making its will efficient, but has therein expressly prevented that agent from calling into action all of its inherent and absolute powers; that by the same Constitution it has also restrained itself from exercising those powers in their full measure, except by methods carefully defined in the same instrument; that by pursuing these methods there is no limit to the operation of the national force; that its attributes are self-existent and not derived; that it knows no superior; that no other civil society may authoritatively control its legislation, or judge of the extent to which that legislation may be

carried.

§ 43. On the other hand, in respect to all these particulars which truly constitute a nation, each state must be described in terms the exact opposites of those employed in reference to the United States. Each state is not an independent, separate political society; it does not possess in itself inherent and absolute powers of legislation; the functions of its rulers are limited not only by its own local constitution, but by that of the Union, and cannot be indefinitely enlarged by any amendments of its own organic law, for the organic law of the nation binds it by an irresistible sanction; another political society not only may but must control its legislation and judge of the extent to which that legislation may be carried. Instead of enjoying attributes of sovereignty, each state, as a separate political society, is in a position of permanent subordination.

§ 44. Of course I am now speaking of the United States and of the several commonwealths under our present civil order, as that is adjusted by and through the existing organic law. I make no reference to the event of a revolution, and the results which such a catastrophe might produce; for revolutions are accomplished not according to law and the estab

lished order of things, but against law, and by the destruction of the constituted authority.

The propositions here stated will be illustrated in the two succeeding chapters by a historical sketch, and by an examination of the Constitution itself.

CHAPTER II.

HISTORICAL SKETCH OF THE POLITICAL MOVEMENTS WHICH TERMINATED IN THE ADOPTION OF THE CONSTITUTION.

SECTION I.

THE PERIOD PRIOR TO THE CONFEDERATION.

§ 45. THE nature of the civil polity which existed during the earlier periods of the revolution and subsequently under the Confederation, is an element of the utmost importance in determining the character of the present Union. It has long been too much neglected by statesmen and political writers; but its controlling effect was recognized by those men who had passed through the struggle of the war and the disastrous experience of the Confederation, and were called upon by their official positions to fix the limits of the new-made government. In very recent times, during the search for first principles and solid foundations quickened by the late war, the attention of American publicists has been again more strongly drawn to this vital subject, and it has been examined with more care, and illustrated with more fulness, than ever before.

§ 46. Those who have adopted either the second or third of the theories set forth in the preceding chapter, have expressly assumed as their fundamental position, and many who should be ranged among the supporters of the first have at times seemed tacitly to admit, that whatever of a national character we possess dates from the first establishment of the present Constitution; that by or through this instrument the people of the states were for the first time drawn together into an union which might properly be termed a nation; that prior thereto the several states were confessedly sovereign, inde

pendent commonwealths. The advocates of the second, or "State Rights" theory must of necessity maintain this position; but from those who hold to the essential, perpetual, and supreme nationality of the Union, this concession is not the mere surrender of a verbal point; it is the abandonment of a great principle, and is not only impolitic, but unnecessary, being entirely contrary to the truth. We have now to deal with plain historical facts, not with theories, nor with disputed questions of intention. Whatever these facts may be, we cannot change them by argument, nor escape from their legitimate consequences. I repeat, the condition and character of the political society prior to, and at the time of, the adoption of the Constitution, is a fact, to be ascertained in the same manner as any other matter within the province of history.

§ 47. Prior to the revolt which terminated in the war of the Revolution, the colonies were not a single nation, nor were they thirteen separate nations. They possessed, singly or in combination, none of the powers and attributes of nationality. Each was independent of the others so far that the collective inhabitants and local governments of each had no authority over the inhabitants nor within the territory of the others. But each was a dependency and an integral part of the British empire. As a result flowing from this common dependence, the inhabitants of each possessed certain rights and privileges within the territories of all the rest; the people of each owed common allegiance to the crown, and were under a common subjection to the imperial government of the King and Parliament. It is true that from their proximity, their one language and religion, and the general identity of their interests, a feeling of unity and nationality had to some extent become spread through the colonies; but this was as yet a mere sentiment, and would continue such until, as it deepened in intensity, it should result in united acts of the whole people which should proclaim that people one nation.

§ 48. Such acts were done. Difficulties arose between certain colonies and the imperial government; and these proving too serious for peaceful adjustment, resort was had to violence.

In their first appeal to arms, in their first movement toward separation from the British empire, the people of the colonies arted as a unit; and from this epoch dates our national existence, dates the birth of a political society now known as the United States of America. The revolt was not the work of the colonies acting separately and independently, in any assumed sovereign capacity, but of the people of all these local communities acting together through their representatives in the Continental Congress, which assembly, though revolutionary, provisional, tentative, and loosely organized, was essentially national.

§ 49. On the 5th of September 1774, delegates to the first Congress assembled at Philadelphia. They were appointed from the different colonies; in some by the popular branch of the legislature, in others by a convention directly chosen by the people. With a correct understanding of the real condition of affairs, and of their own character as representatives, these men styled themselves in their formal acts"the Delegates appointed by the Good People of these Colonies."

The government thus formed was, in truth, revolutionary; it was not intended to be permanent; but it exercised in fact and of right a sovereign authority, not as the delegated agents of the local governments of the separate colonies, but in virtue of original power granted by the people. Their acts were all of a national character. They forbade the importation and exportation of articles of merchandise from and to Great Britain and certain of its dependencies; they passed a Bill of Rights; they stated their common grievances, and adopted an address to the king and to the British people.

§ 50. On the 10th of May, 1775, a second congress of delegates was held. These were chosen in some of the colonies by the popular branches of the local legislatures, but in most by conventions directly elected by the people. Their measures were still more national. They assumed to regulate commerce, to provide a supply of funds, to raise an army, to construct a navy, to establish a Post-Office Department, and to do many other acts, all looking toward a complete separa2 Ibid. § 203.

1 See 1 Story on the Constitution, § 200.