power among the Nations of the World; what that condition was, has at different periods been much discussed. At first, it was treated as a question of the rights and duties of these Colonies in reference to the parent Government; later, it has been more often investigated as a question, of the relation of the Colonies to their Sovereigns, and to each other, in regard to the relations which have existed and now truly exist, between the particular States within the Union and the whole United States; or between the People of each of those States and the whole People of the United States, ordaining and establishing a Constitution for the United States of America. The Declaration of Independence disposed of the first of these questions, the latter has a living interest. In the second of his early productions,* Hamilton touches this great question. Totally denying the claim of parliamentary supremacy over the British Colonies, except as conceded by them, he remarks, "In order to form one State, that is, a number of individual societies, or bodies politic united under one common head, there must indeed be some connecting, pervading principle. This is found in the person and prerogative of the King. He it is that conjoins all these individual societies into one great body politic." "He is King of America, by virtue of the compact between us and the Kings of Great Britain." Their claim to allegiance was founded upon the title derived from the Crown to the lands in America, and on the King's being "the supreme protector of the Empire," and having bestowed that protection. As fellow subjects of one common Sovereign, the Colonists had the common rights of British subjects, those rights which are the natural rights of every human being, except as limited by statutes. These common rights extended over the whole territory of Great Britain in North America. The colonists of each Colony had the rights of traffic with, of migration to; of residence in, and of inheritance by descent of real estate situate in, every other Colony. To secure which common rights the local legislation of all the Colonies was required to be in accordance with the laws of England.

Thus, the British colonists of North America, were, in chief respects," one people," and as such, the delegates chosen to

*Hamilton's Works, ii. 55, February 5, 1775. "The Farmer Refuted"written in his eighteenth year.

Story's Commentaries, i. 8 163, 165. 2 Dallas Reports, 470. Opinion of Chief Justice Jay.

the first "American Continental Congress," were chosen, and declare themselves chosen by "the good people of the several Colonies" there represented. The powers exerted by it were exerted for their common protection; and the Union of the Colonies was symbolized to the world by that of "The Great Union Flag," in which they still recognized their common allegiance to the crown.*

Notwithstanding this still recognized allegiance, Congress representing the power of the United people, became, in place of the King, their "supreme Protector;" and ere long, on this protection being withdrawn from its subjects by the Crown, that allegiance was likewise withdrawn, and was transferred to the whole people of the United Colonies represented in that Congress. Thus, the Declaration of Independence by the Continental Congress, as the act of "one people," about "to assume among the powers of the earth," a "separate and equal station" —AS A NATION—and "in the name and by the authority of the good people of these colonies," declares, "that these United Colonies are, and of right, ought to be free and independent States;" and, as such, “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do."

This manifestly was the joint act of all the people of the United colonies of North America, not a single colony being named. It was a Declaration of the Independence of the United colonies of Great Britain-not of an independence of each colony of the other colonies-it was a declaration of the sovereignty of the people of the United States conjointly, not of the Sovereignty of any one colony, for the colonial condition then ceased; not of the sovereignty of any one State, for no State Government, with a view to permanence, had then been formed. Hamilton accurately pronounced, before the present Constitu

*A flag combining the Crosses of St. George and St. Andrew united (the distinctive Emblem of the United Kingdom of Great Britain) with a Field composed of thirteen stripes alternate red and white, the combination of the Flags previously used in the camp, on the cruisers and the floating batteries of the Colonies, was adopted for this purpose, ("the declaration of their union under a common sovereign") and called the "Great Union Flag."-"The National Flag of the United States," p. 80-85, by Captain, since Major General Schuyler Hamilton. The change from this flag to that of the flag of the United States was ordered by a Resolution of Congress June 14, 1777, thus providing a substitute for the crosses of St. George and St. Andrews, that "the Union be thirteen stars, white in a Blue Field-representing a new constellation.”

tion was established, such to be the true political condition. "The UNION and INDEPENDENCE of these States are blended and incorporated in one and the same act"*-the Declaration of Independence. "The sovereignty and independence of the people," he declared, "began by a federal act. The Declaration of Independence was the fundamental Constitution of every State." "Congress had complete sovereignty." "Its constitutional powers are not controllable by any State."†

In prosecution of the great purpose of the Declaration of Independence the establishment of a nation of free men-Congress proceeded in the exertion of many of the sovereign powers necessary to that purpose-powers of action and of prohibition. They had exerted and continued to exert the powers of levying war on land and on sea, pledging the whole property of the inhabitants of the twelve Colonies for the redemption of their joint debt; and they had prohibited exportations to the British dominions, with certain exceptions; the receipt and negotiation of British government bills by, or supplies of money to, British officers; and of necessaries to the British army and navy in Massachusetts, or transports in their service, acting directly upon the people of the United States for many purposes, and through the agency of the States when organized, for other purposes.

It is not to be supposed that a people keenly jealous of their liberties would long be content with the large discretionary powers Congress was exercising; and, in midsummer of seven- . teen hundred and seventy-five, Benjamin Franklin submitted to Congress a sketch of "Articles of Confederation," in the name of "The United Colonies of North America." These articles declared their purpose to be "common defence-the securities of their liberties and properties-the safety of their persons and families and their mutual and general welfare." They were to "be proposed to the several provincial Conventions or Assemblics," for their approval and ratification; and "the Union thereby established," was to continue firm until a reconciliation with Great Britain; but, on failure thereof," the Confederation was to be perpetual." Conferring upon Congress the power of making "such General Ordinances as though necessary to the general welfare, particular assemblies cannot be competent to" -they declared, "that each Colony shall enjoy and retain as Hamilton's Works, ii. 358.

Journal of Congress, June 2, 1775.

Hist. Rep. iii. 16.

much as it may think fit of its own present laws, customs, rights, privileges, and peculiar jurisdictions within its own limits; and may amend its own Constitution, as shall seem best to its own assembly or convention."* Viewed as a merely temporary project, this scheme was in accordance with the existing condition of affairs; but regarded in its future, as a plan "to be perpetual," it wanted the comprehensiveness and reach which that future must demand. It was not acted upon.

The next step in our political organization was, a recommendation to the Colonies to form themselves into Governmentsfirst temporarily, then permanently. The terms of this recommendation are very significant-to "adopt such Government as shall best conduce to the happiness and safety of their constituents, in particular, and to America in general.”

The People of the several Colonies, now emerged from their colonial condition, proceeded under this recommendation, though at long intervals, to the formation of State Constitutions. In all these constitutions are seen a recognition of the then existing Congress by provisions for its continuance, and a reservation, as States, of the powers and rights incident and necessary to the guardianship of their particular interests.

A month later,† a Declaration of Independence having been ordered to be prepared, a draft of the form of a confederation between the Colonies was the next day directed to be made. Articles of confederation were soon after proposed, in the name of "The United States of America," the second of which declared, that the Colonies "unite themselves so as NEVER to be divided by any act whatever," and enter into a firm league of friendship with each other for "their common defence, the security of their liberties and their mutual and general welfare." This draft having undergone frequent modifications- after discussions chiefly affecting the representative power of each State-the measure of its contributions, and their separate or joint interest in the public lands, the "Articles of Confederation" became operative, by the final ratification of them on the first of March, 1781, by the State of Maryland.

A comparison of the Articles ratified with those which preceded them, evince a growing jealousy as to the deposit, extent, and exercise of the general powers, necessary to "the mutual and general welfare." While in the earlier draft the reserva* Secret Journals of Congress, i. 283, July 21, 1775. † June 10, 1776.

Secret Journal, July 12, 1776.

tion was simply "of the sole and exclusive regulation and government of" the "internal police in all matters which shall not interfere with the Articles of the Confederation"-as a provision secondary to the general league-in the later and in the ratified Articles, the primary declaration is, 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." Even, for a "Council of State" to be appointed by Congress, and to act during its sitting and in its recess "with power to direct military operations by sea or land"-was substituted a "Committee of Congress" to sit only during its recess; and it was provided, that no person be allowed to serve in the office of President "of Congress more than one year in any term of three years."

Instead of a National Government of undefined powers, it had dwindled down to a league of States with limitations inconsistent with the great purposes and ends of a general government; and more in the spirit of a penal statute. It had become a mere league of States, disproportionate in territorial dimensions, in wealth, in population—each having an equal vote in their general Council, and of these equal votes, nine requisite to the exercise of many of the most important powers conferredseveral of those powers of questionable authority because of the intercipient reservations of powers in the States, and without any common exponent; and it fixed a measure of contribution unequal, impracticable, and therefore never carried into effect-with a process of requisitions, not of impositionswithout legislative departments, without a Judiciary, without an Executive-without any direct relation to, or civil power over the People as individuals, whose general welfare was committed to it, and with a debated question as to whom allegiance was due. "The Union," in the words of Hamilton, originally had "complete sovereignty." "The Confederation was an abridgement of this original sovereignty."* Although not binding upon any of the States until its ratification by the whole, the influence on the public mind of this very imperfect contrivance was prominent in the proceedings of Congress and of the States -delaying, and imperilling, during several years of the revolutionary contest, the independence and sovereignty it professed to assure.

* Hamilton's Works, i. 358.