of the government, the acquiescence of the States, and the result of the Civil War, have so firmly established this position, that its discussion now is less practical than academic. These contentions, however, will be considered separately.

§ 12. Sovereignty of the States before the Federal

Constitution.

Before the adoption of the Constitution, the several States who were parties to the Confederation were independent and sovereign. This theory, although disputed by high authority, seems to be established. Prior to the outbreak of the Revolution, the colonies were separate, connected with each other only through their common dependence upon Great Britain, differing in the race of their inhabitants, the character of their occupations, and the nature of their religion. When the difficulties arose with Great Britain, at the outbreak of the Revolutionary War, they sent delegates to the Continental Congress, which superintended the conduct of the war, and which passed and promulgated the Declaration of Independence. The extent of the powers of the Continental Congress, which were neither limited nor authorized by any charter, written law, or constitution, depended upon the necessity of the respective cases which arose; and it was in fact a provisional government. Had it continued thus until the adoption of the Federal Constitution, it might well have been claimed that the sovereignty was in its constituents at large, and that the several States were never sovereign or independent.2 Still, there, the members voted by States, and not as individuals, and were subject to be recalled by their constituencies at any time; and the interference with local affairs was made usually in the form of recommendations rather than orders.

§ 12. 1 See Penhallow v. Doane's Administrators, 3 Dallas, 54, 81, 91, 93, 94, 111.

2 At the opening of the Continental Congress in 1774, Patrick Henry said that the colonial governments were at an end, America was thrown into one mass and in a state of nature, and that consequently the people ought to be considered as entitled to

When, however, the Articles

representation in accordance with their numbers. His motion, however, failed. (John Adams, Works, vol. ii, pp. 366-377; Curtis' Constitu tional History, vol. i, pp. 9, 10.) Supra, § 4.

8 The Continental Congress "directed New York to arm and train her militia." Dane's Abridgement, vol. ix, Appendix, p. 39.

of Confederation were ratified, the sovereignty of the several States was distinctly recognized. They provide expressly that

"Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this Confederation expressly delegated to the United States in Congress assembled." 4

Thus we find in the first formal instrument which bound the States together, an express recognition of their sovereignty and independence.

So, the bill of rights in the first Constitution of Massachu

setts:

"The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled." 5

The treaties made by the United States with other nations, prior to the adoption of the Federal Constitution, also recognize either expressly or by implication, the independence and sovereignty of the several States. The Treaty of Amity and Commerce with France in 1778, recites in its preamble that it was made between

concluded, "In the year of our Lord 1777, and of our sovereignty and independence the eleventh." In New Jersey, "In the year of our Lord 1786, and of our sovereignty and independence the eleventh." In New York, "In the eleventh year of the independence of the said State." In North Carolina, "In the eleventh year of our independence, A.D. 1787." In Massachusetts, "In the eleventh year of the independence of the United States of America." In South Carolina, "In the year of our Lord 1787, and of the sovereignty and independence of the United States of America the eleventh." (Stephens, Constitutional View of the War between the States, vol. i, pp. 96-115.)

"The Most Christian King and the thirteen United States of North America, to wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.""

It speaks synonymously of "The United States of America," and of "the said States; "7 and of "the thirteen United States."8 It refers to the ports, havens, roads, countries, islands, cities, towns, subjects, people and inhabitants; and the benefit, conveniency and safety of the said United States and each of them," and "of the said United States or any of them." The plenipotentiaries on the part of the United States who signed the same are set forth in the preamble as:

"The United States, on their part, having fully impowered Benjamin Franklin, Deputy from the State of Pennsylvania to the General Congress, and President of the Convention of said State, Silas Deane, late Deputy from the State of Connecticut, to the said Congress, and Arthur Lee, Councellor at Law." 10

The Treaty of Alliance with France, signed and ratified on the same date, similarly names the separate States as parties to the

"The Most Christian King and the United States of North America, to wit: New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia;

11

and the plenipotentiaries are similarly described.12 Similar language is found in the contract between the United States and the King of France in 1782, in regard to the payment of the French

U. S. R. S. relating to District of Columbia and Post Roads, and Public Treaties, p. 203.

7 Ibid., Article I, p. 204.

Ibid., Article XXX, p. 212.

Ibid., Article III, IV, VI, VIII, XI, pp. 204, 205, 206, 207. In two articles, however, are references to the United States as an entity. Article XX, "For the better promoting of commerce on both sides, it is agreed that if a war shall break out between the said two nations," etc. Article XXII: "It shall

not be lawful for any foreign priva-
teers, not belonging to subjects of the
Most Christian King nor citizens of
the said United States, who have com-
missions from any other Prince or State
in enmity with either nation, to fit
their ships in the ports of either the
one or the other of the aforesaid par-
ties," etc. Ibid. p. 209.

10 Ibid., Preamble, p. 204.
11 Ibid., p. 201.
12 Ibid., p. 203.

loan.13 The contract between the King and the United States, upon the same subject, in 1783, recognizes the independence of the thirteen United States of North America, and refers throughout to those thirteen States.14

In the provisions concerning the restitution of confiscated property, it is merely agreed that Congress shall recommend this to the Legislatures of the respective States, without any definite promise on the part of the United States, that the several States shall carry out said recommendations, as in fact many of them failed to do.15 Similar language may be found in the provisional articles for this Treaty signed in 1782.16

The independence and sovereignty of the separate States was occasionally disputed even at that time. Thus, in the debates of the Federal Convention, Rufus King

6

"wished, as everything depended on this proposition, that no objection might be improperly indulged against the phraseology of it. He conceived that the import of the term 'states,'' sovereignty,' national,' ' federal,' had been often used and applied in the discussions inaccurately and delusively. The States were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any proposition from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war. On the other side, if the union of the States comprises the idea of a confederation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a national character results to the whole. Congress can act alone without the States, they can act (and their acts will be binding) against the instructions of the States. If they declare war, war is de jure declared; captures made in pursuance of it are lawful; no acts of the States can vary the situation, or prevent the judicial consequences. If the States, therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a confederacy in some respects, they formed a nation in others. The Convention could clearly deliberate on and propose any alterations that

Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States; that he treats with them as such, and for himself, his heirs and successors, relin

quishes all claims to the Government, propriety and territorial rights of the same, and every part thereof." (Ibid., p. 266.)

15 Ibid., p. 268.

16 Ibid., pp. 261-264.