Elliot’s Debates: Political Rights and Sovereignty
Elliot’s Debates: Volume 1
Political Rights and Sovereignty
Respecting the political rights and sovereignty of the several colonies, and of the union which was thus spontaneously formed by the people of the United Colonies, by the declaration of independence, Judge Story, in his Commentaries on the Constitution, remarks:
In the first place, antecedent to the declaration of independence, none of the colonies were, or pretended to be, sovereign states, in the sense in which the term “sovereign” is sometimes applied to the states. The term “sovereign,” or “sovereignty,” is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions. By “sovereignty,” in its largest sense, is meant supreme, absolute, uncontrollable power, the jus summi imperii, the absolute right to govern. A state or nation is a body politic, or society of men, united together for the purpose of promoting their mutual safety and advantage by their combined strength. By the very act of civil and political association, each citizen subjects himself to the authority of the whole; and the authority of all over each member essentially belongs to the body politic. A state which possesses this absolute power, without any dependence upon any foreign power or state, is in the largest sense a sovereign state. And it is wholly immaterial what is the form of the government, or by whose hands this absolute authority is exercised. It may be exercised by the people at large, as in a pure democracy; or by a select few, as in an absolute aristocracy; or by a single person, as in an absolute monarchy. But “sovereignty” is often used, in a far more limited sense than that of which we have spoken, to designate such political powers as, in the actual organization of the particular state or nation, are to be exclusively exercised by certain public functionaries, without the control of any superior authority. It is in this sense that Blackstone employs it, when he says that it is of “the very essence of a law, that it is made by the supreme power. Sovereignty and legislature are, indeed, convertible terms; one cannot subsist without the other.” Now, in every limited government, the power of legislation is, or at least may be, limited at the will of the nation; and therefore the legislature is not in an absolute sense sovereign. It is in the same sense that Blackstone says, “the law ascribes to the king of England the attribute of sovereignty or preeminence,” because, in respect to the powers confided to him, he is dependent on no man, and accountable to no man, and subjected to no superior jurisdiction. Yet the king of England cannot make a law; and his acts, beyond the powers assigned to him by the constitution, are utterly void.
In like manner, the word “state” is used in various senses. In its most enlarged sense, it means the people composing a particular nation or community. In this sense, the “state” means the whole people, united into one body politic; and the state, and the people of the state, are equivalent expressions. Mr. Justice Wilson, in his Law Lectures, uses the word “state” in its broadest sense. “In free states,” says he, “the people form an artificial person, or body politic, the highest and noblest that can be known. They form that moral person, which, in one of my former lectures, I described as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests which it ought to manage; as enjoying rights which it ought to maintain; and as lying under obligations which it ought to perform. To this moral person we assign, by way of eminence, the dignified appellation of STATE.” But there is a more limited sense, in which the word is often used, where it expresses merely the positive or actual organization of legislative, executive, or judicial powers. Thus the actual government of a state is frequently designated by the name of the state. We say, the state has power to do this or that; the state has passed a law, or prohibited an act; meaning no more than that the proper functionaries, organized for that purpose, have power to do the act, or have passed the law, or prohibited the particular action. The sovereignty of a nation or state, considered with reference to its association, as a body politic, may be absolute and uncontrollable in all respects, except the limitations which it chooses to impose upon itself. But the sovereignty of the government, organized within the state, may be of a very limited nature. It may extend to a few, or to many objects. It may be unlimited, as to some; it may be restrained, as to others. To the extent of the power given, the government may be sovereign, and its acts may be deemed the sovereign acts of the state. Nay, the state, by which we mean the people composing the state, may divide its sovereign powers among various functionaries, and each, in the limited sense, would be sovereign in respect to the powers confided to each, and dependent in all other cases. Strictly speaking, in our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state.*
* Mr. Madison, in his elaborate report in the Virginia legislature, in January, 1800, adverts to the different senses in which the word “state” is used. He says, “It is indeed true that the term states is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies, as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity.”
There is another mode in which we speak of a state as sovereign, and that is in reference to foreign states. Whatever may be the internal organization of the government of any state, if it has the sole power of governing itself, and is not dependent upon any foreign state, it is called a sovereign state; that is, it is a state having the same rights, privileges, and powers, as other independent states. It is in this sense that the term is generally used in treatises and discussions on the law of nations.
Now, it is apparent that none of the colonies, before the revolution, were, in the most large and general sense, independent or sovereign communities. They were all originally settled under, and subjected to, the British crown. Their powers and authorities were derived from, and limited by, their respective characters. All, or nearly all, of these charters controlled their legislation by prohibiting them from making laws repugnant, or contrary, to those of England. The crown, in many of them, possessed a negative upon their legislation, as well as the exclusive appointment of their superior officers, and a right of revision, by way of appeal, of the judgments of their courts. In their most solemn declarations of rights, they admitted themselves bound, as British subjects, to allegiance to the British crown; and, as such, they claimed to be entitled to all the rights, liberties, and immunities, of free-born British subjects. They denied all power of taxation, except by their own colonial legislatures; but at the same time they admitted themselves bound by acts of the British Parliament for the regulation of external commerce, so as to secure the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. So far as respects foreign states, the colonies were not, in the sense of the law of nations, sovereign states, but mere dependencies of Great Britain. They could make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor, in any other shape, act as sovereigns, in the negotiations usual between independent states. In respect to each other, they stood in the common relation of British subjects; the legislation of neither could be controlled by any other; but there was a common subjection to the British crown. If in any sense they might claim the attributes of sovereignty, it was only in that subordinate sense to which we have alluded, as exercising within a limited extent certain usual powers of sovereignty. They did not even affect to claim a local allegiance.
In the next place, 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. 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.” 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 Britain. 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 obtained.” 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. 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. 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 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 connection 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.
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 used the following language: “This admirable manifesto (i. e. the Declaration of Independence) sufficiently refutes the doctrine of the individual sovereignty and independence of the several states. In that Declaration the several states are not even enumerated; but after reciting, in nervous language, and with convincing arguments, our rights to independence, and the tyranny which compelled us to assert it, the Declaration is made in the following words: We, therefore, the representatives of the United States, &c., do, in the name, &c., of the good people of these colonies, solemnly publish, &c., that these United Colonies are, and of right ought to be, free and independent states. The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration. The several states are not even mentioned by name in any part, as if it was intended to impress the maxim on America, that our freedom and independence arose from our union, and that without it we could never be free or independent. Let us then consider all attempts to weaken this union, by maintaining that each state is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses.”