lature of South Carolina, as the representative of the people, between the years 1775 and 1789, previous to the adoption of the present constitution, was absolute in its powers. In the course

of that time, it had given two constitutions to the State, that of 1776 and that of 1778. In 1790, the delegates of the people, met by authority of the legislature, ordained and established the constitution of 1790. That constitution states that all power is [was] originally vested in the people; and all free governments are founded on their authority, &c. This was no doubt true; for until governments were founded, the passive power was originally in the people, and not in the sovereign power, as Rousseau supposes. But when government is established, the power is transferred, or rather arises to the government, and that becomes the active power of a State, and is therefore truly called its sovereign power, because it governs all, and all are subject to its laws. Strictly speaking, there can arise no political or civil power except out of society, and government ex necessitate, flows from and is co-existent with society, as soon as formed by man. The element of political power is in man-every man, but it cannot be developed until society renders it necessary, and then, from the necessities and very existence of society, government has its rise, and takes its existence. If any of these elements are unnecessary or dangerous to society, they may be excluded, as the robber and murderer, the idiot and pauper, are excluded. And wo! to that race whose incapacity or character renders it unfit to take equal position with the best, for they that cannot govern must be governed, and they that will not do must be made to do! All men must take their place, and those that are not fit to be placed in society, must be placed under societythose not fit for freedom must be slaves. To man-single manlonely man-to man in a state of nature, as some will have it, government has no relation, nor does there appertain to him any rights—rights of any sort, moral or civil-though there may be religious rights, as between man and his God. How then can we talk of natural rights and natural equality, when the thing is impossible, all rights arising out of society and government of man's own forming?

By the constitution of South Carolina it is expressly declared that no convention of the people shall be called, unless by concurrence of two-thirds of both branches of the whole representation; and a particular mode is prescribed for amending or altering the Constitution by the Legislature. So that any change may be made in the Constitution by the Legislature that can be made by a convention, provided it proceeds in the prescribed mode. Mr. Webster, in his argument in the Rhode Island case, says: "Of all the old thirteen States, the Constitutions, with but one exception [two as we have shown], contained no provision for their own amendment. In New-Hampshire there was a provision for taking the sense of the people once in seven years, yet there is hardly one that has not altered its Constitution, and it has been done by conventions called by the legislatures, as an ordinary legislative power." And he asks, what State has ever altered the Constitution in any other mode? "What alteration," he asks, "has ever been brought in, put in, forced in, or got in any how by resolutions of mass meetings, and then by applying force? In what State has any assembly, calling itself The People, convened without law, without authority, without qualifications, without certain officers, with no oaths, securities or sanctions of any kind, met and made a Constitution, and called it the Constitution of the State? There must be some authentic mode of ascertaining the will of the people, else all is anarchy." In most, if not all of the States, conventions have been called, and it has been regarded as an ordinary exercise of legislative power. It is a revolution where a convention is held independent of the law, and the government changed, for, as Mr. Webster says, there is a hiatus or syncope in the action of the body politic, and future legislation owes its origin to that revolution. This was not the case in the formation of the present Constitution and Government of the United States, nor was it the case in the States where conventions have been called by their State Legislatures, for effecting changes in their State Constitutions. According to the theory of the sovereignty of the people, the consequences inferred by Rousseau naturally follow, that the instant the people are supposed to be assembled in Convention, the Convention becomes,

as in the French Revolution, an absolute tyranny, holding in its hand all powers-legislative, executive, judicial, military, civil or uncivil, and may become the mere police and scavenger of the streets. This certainly cannot be our understanding of the du ties of a convention. In framing a constitution that establishes a government vested with supreme authority, or only a part of supreme authority usual to governments, it cannot be truly said that all power is still vested in the people; but it may be true that all power is derived from the people, who constitute and are synonymous with the political society. Nor does it mean everybody, as we have already said, and would not be misunderstood, but such members as constitute elements of the political society, acknowledged and admitted as such. It would be neither good grammar nor good sense in the same instrument that conveys all sovereign powers from the people to their representatives and declares that the people shall never again legally meet in convention, even figuratively, to change, modify, or amend the Constitution, unless by the consent of the Legislature,—to say that all power is still vested in the people. The Constitution does not utter any such Rousseau-like absurdity, for when it does say that all power is originally vested in the people, it can only be construed to mean, that all such power was originally so vested, before it was conveyed by that same instrument to their representatives, to be administered in justice and truth. It would be more than nonsense to say that one is vested with a right he had in the same deed conveyed to another.

Such is the force of habit that even Judge Harper, in the case of the State vs. Hunt and McMeeken (Allegiance case), and that too after commenting on the inaccurate use often made of this very word sovereignty, and which, he says, persons so often repeat supposing that they understand it, and to which they attach no precise or definite meaning, he himself commits the very same error when he says, "That sovereignty resides in the people,' though he admits that "all authority is delegated from them," while only a few pages preceding he had said, "It is most evident that in every State there must be some authority, whether lodged in one or many hands, or one or more departments, which

controlling all other constituted authorities, is not itself subject to the control of any. Wherever that authority resides, is to be found the sovereignty."

Nor are these representatives or officers of the government servants of the people, as they are often professed to be, for the purpose of popular flattery. Where they act as servants to some, they are sure to play master to others. We never hear the phrase used, but we wish to dress up such servant in livery and to adorn him with plush, hat-band, lace and shoulder-knots, and to place him, like a chasseur, behind some burgomaster's carriage, or to wait at table on all election feasts. When Mr. Webster speaks of the people as sovereigns, in his argument in the Rhode Island case, he takes care to say, in his sardonic manner, "But, as Chief Justice Jay says, they have no other subjects than a few colored persons, and that it was rather fanciful." This, we suppose, would now be treason in Fanueil Hall.

The powers of the State and General Government are by no means inconsistent or repugnant, where honestly administered according to the Constitution; but should tyranny and misrule on the part of the General Government at any time endanger the existence of the State, and render duty and obedience to both inconsistent and repugnant, then the universal rule applies—our duty to our prior and therefore paramount obligation, for the General Government, in accepting the pledge of obedience from the citizen of the States, well knew his prior existing obligation; and no individual has the jurisdiction to say that his State is wrong, and he will not obey her, after the legal authorities have determined to withdraw her from the Union. Until that decision is made, he is bound by all constitutional laws made by either, and he cannot set up his opinion against the authorities that are authorized and required to expound and enforce the law. Nothing more was intended by South Carolina, when, in 1832, she required an oath of allegiance to the State of all her officers. The constitutions of other States had, all along, required the same, without comment or objection. It was not then a new idea to require an oath of allegiance to the State, while, at the same time, the officer is also required to swear to preserve, protect and

defend the Constitution of the United States as of the State. The objections made at the time arose entirely from the high state of party feeling existing at that time, in which the judges partook as active partisans, some of whom have not lost their bitterness to this day. They were blinded by their prejudices, which should have been rather for than against their State. In drafting that oath, particular consideration was given to the act of 1778, "Enforcing allegiance and fidelity to the State," which expressly places protection and allegiance on the ground of their being necessarily reciprocal and inseparable. The writer speaks knowingly, for he drew the bill and brought it into the House from the Committee on Federal Relations. It required nothing more nor less than the promise to perform the duties arising from our peculiar form of government. We looked upon the United States Government as created by the pre-existing several States for our foreign relations only, and as subsequent in time, derivative and subordinate in its creation, and that it secured the pledges of fidelity from the citizens of the States, well knowing their paramount duty, in case of conflict or separation, to the latter. We agree with Bishop Whately and Algernon Sydney, that allegiance is such obedience as the law requires to the supreme authority of the State, no matter what form it may assume, and that while it may mean fidelity to a prince in one country, in another it may mean conformity and obedience to the law-ad legem (Synonyms) the supreme power that is above all.

Loyalty is not confined in its meaning to its feudal sense, but means honesty, truth and faithfulness in the performance of all the duties of life; and allegiance means that duty performed to the Constitution and laws of the land. Whilst acting within their constitutional powers, the Government of the United States as to

its

powers, and the State Governments as to theirs, are sovereign, and there can be no other sovereignty co-existing in the people so long as these governments exist. The contrary doctrine leads to anarchy. The State Governments before the Union, or any Union, and until restricted by the State Constitutions, possessed full supreme power. They gave new constitutions, and might have adopted any form of government they pleased. When they