more, how could each of them retain a sovereignty which not one of them had even pretended before this to assert for itself, and which the people-the proclaimed source of all sovereignty—had not yet even been asked to confer upon them; which, indeed, they had not yet the power to confer upon them?

one.

It was a strange solecism in the political action of that old Congress. this undertaking to distribute sovereignty among the States, when they had not yet secured it for themselves! But the act was liable to a still greater objection; for, supposing that the States had conquered their independence, where did the delegates of that Congress, or any subsequent one, get authority to declare a State a sovereign power? They had just proclaimed it to be a fundamental principle-that all lawful government rested solely on the consent of the people. Had they the consent of the people to this act? Did they, indeed, ask the consent of the people of any one State to authorize them to form the government they were then devising? No, not They were not themselves even elected by the people. They held their seats by the selection of their legislatures, not by popular vote. Did they, when their work was done, refer it to the people for ratification? No; the utmost that they did was to refer the ratification to the States; and, in fact, the people never did act upon that scheme of the Confederation at all. Clearly, the whole proceeding must be regarded, when tested by the principles of the Declaration of Independence, as a usurpation on the part of the States. Still, it is true, the people acquiesced. The great business of the time did not admit of nice debates on points of power, and the people had too much respect for the patriots who guided the public counsels to question what they did in their endeavors to establish the nation. And so, we may admit that the Government of the Confederation, during its short existence, did really recognize-with the acquiescence, if not the consent of the people --the theory of the sovereignty of the States. The history of that old Confederation, its hasty birth, its halting and feeble

existence, and its early death, afford irresistible evidence of the utter incompetency of that State-Rights theory to answer the most ordinary needs of the nation.

The Confederation was finally ratified by the States in 1781. It had been four years under debate. One of the prominent objections made to it, and which longest delayed its acceptance, shows how naturally the sense of the country, when called into action free from the influence of a political theory, turned towards a true perception of the rights that grew out of the contest of the Revolution. The difficulty that stood in the way of the Confederation was a question of territory. Several of the States claimed, under their colonial charter, a width and breadth of boundary which gave them the area of an empire of yet unsettled land. Virginia, especially, held large tracts beyond the Ohio. The smaller States objected to a confederation which acknowledged State sovereignty over this vast, uncultivated domain. They objected that this domain did not rightfully belong to the States that claimed it by their charters, but belonged to all the colonies, as a national possession conquered from the British Crown by the united arms and common resources of the whole. They contended, in effect, that no one State had gained any thing by conquest, and that what was gained was gained by all for the benefit of all. It was only by a promise of judicious compromise with this objection, looking to a future surrender of their claims, that even the States agreed to adopt the Confederation.

And now came the trial of the State-Rights theory. The Confederation formed upon it, even before it went into full operation in 1781, had been pronounced a failure. After the peace, in 1783, the failure became every day more manifest. The letters of the statesmen of that time are full of complaints of the utter inefficiency of the system-the League of Sovereign States-to answer the most indispensable demands of government. Congress was continually suggesting expedients of amendment; the States were constantly endeavoring to rec

oncile the two evidently incompatible ideas of national welfare and State sovereignty by propositions to patch up the one with grudged and stinted concessions from the other. But all would not do. The country was fast "descending,” as Washington expressed it, "into the vale of confusion and darkness." There was really but one remedy against this state of things, and that was finally recognized by Congress in 1787, by the resolution to call a Convention to meet in Philadelphia in May of that year, "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union."

How that Convention dealt with the question of State Sovereignty I propose to make the subject of the next Letter.

LETTER X.

STATE SOVEREIGNTY.

FEBRUARY, 1865.

Chronologically, the State-Rights, or State-Sovereignty idea, lasted in theory ten years, from 1777 to 1787. Practically, it was a caput mortuum from the beginning to the end of its term. During the war the Government got along in spite of the obstructions of the theory,-propelled by the patriotism of the country; after the war it did not get along at all. The public affairs were generally at a dead-lock. The national finances were in inextricable confusion; the public engagements were repudiated; the current debts were unpaid; the national treaties were unfulfilled; the commerce of the country was left without regulation; the States were in a continual quarrel with each other upon the extent of their boundaries and their separate right to territory, which their united

arms had won from its former owner; insurrection was threatened; the Government had no power either to make peace between the disputants, or to protect itself. The States were all sovereigns, and could conduct things according to their own humor.

When the Convention met, there was a party in that body which rather seemed to favor this state of things. The small States were jealous of the large, and this sentiment was reciprocated from the large States, by a disparaging estimate of the value of the small. But the great and wise leaders of the Convention came to their duty with a full appreciation of the importance of the labors before them. They came with an earnest determination to break up the rickety League of 1777, and substitute in its place A NATION. They came resolved to restore that principle of the Declaration of Independence which had, for ten years, been thrown into abeyance,—the practical acknowledgment of the Sovereignty of the people. An objection was made as to the extent of the authority conferred upon the Convention to create a new government. It was said that Congress had only given them power to revise and amend the old Articles of Confederation. The reply was: We shall propose our new government to the people, and, if they ratify it, it will be the act of the sovereign power of the nation, and so of supreme authority. Upon this basis the labors of the Convention were conducted to the end. The result was, the present Constitution was finally ratified by the people of every State assembled in convention.

The key to a true interpretation of the character and power of the National Government, and of the relation of the State governments to it, will be found in that simple principle, so distinctly announced in the Declaration,—the sovereignty of the people of the Union, or, in the language of the paper itself, "of the good people of these colonies.'

As my subject now leads me to make some remarks upon this question of sovereignty, I must premonish you that I entirely repudiate and discard that scientific or professional defi

nition of this term, to which I made some allusion in my last Letter, as accepted in trans-Atlantic treatises on national law, and which definition, I think, has been too broadly adopted into our own.

I have never seen it noticed that our distinctively American form of government is founded on a basis which repels the European, or Old-World idea of sovereignty and allegiance. I am, therefore, perhaps, venturing on an entirely new ground, when I assert that the relations between the State and the people, as created by our scheme of polity, are not to be measured by the rule which determines the character of sovereignty and allegiance, as known to the monarchical forms of society. Sovereignty and allegiance are feudal ideas. They are correlatives, which suppose a chief on one side and a vassal on the other. They describe attributes and duties of persons, the sovereign lord and the liegeman. One owes protection, the other obedience. The liegeman, according to the old feudal custom, came into court and pledged himself, by oath, "to be faithful to the king and his heirs, and truth and faith to bear, of life and limb and terrene honor; and not to know or hear of any ill or damage intended him, without defending him therefrom." This was, in the primitive days of feudalism, the pledge of allegiance, when made to the sovereign, -of fealty, when made to a superior or lord who himself was a feudatory to the sovereign.

This idea of sovereignty and allegiance became, in process of time, expanded beyond its original narrow feudal limits, and found a place in our national law, as the expression of the relation between the subject or citizen and the State. But it has never lost, in monarchical countries, its personal attribute; it is invariably, in such countries, exhibited as a personal relation. Sovereignty is personated in the king; allegiance is personated in the performance of the duty due from the subject to the king.

It is easy to trace the transition of this idea into the field of the general rights and obligations which the law of nations