Tazewell examines the history of the colonies, and argues that because the people of the colonies did not join together to form a national government, the individual state governments they formed instead are sovereign.


Norfolk, December 31, 1832.

Who constitute that great Corporation and body politic I have called The People, which all in these now United States concur in freely acknowledging as their liege Lord and only earthly sovereign by whose fiat all our governments have been created and endowed, and at whose will they may at any time be rightfully dissolved and annihilated? This is the question, which in my last number I promised to examine in this; and I now will proceed to redeem my pledge.

No American is so ignorant of the history of his own country, as not to know, that prior to the commencement of our Revolution, there did not exist anywhere on this vast continent, such a body politic as The People. Then whoever dwelt in America, was either a savage Indian, or the liege subject of some European Sovereign. None of the various savage Tribes who wandered over the surface of much of this continent, had then ever regarded themselves, or been regarded by any others as constituting a fixed Society acknowledging allegiance to any Sovereign, or as constituting that moral and accountable being called a State. Had any civilized man or set of men presumed, at that time, to assert his or their sovereignty here, the assertion would have been considered by all as sedition and the attempt to maintain it by force, as an overt act of treason against his European master; for all white men in America then claimed to be the loyal subjects of some such Lord.

It is true, that in British America, there existed sundry tracts of country delineated upon the geographical charts as British Colonies, the inhabitants of each of which regions were formed into separate and fixed Societies, whose affairs were regulated by long-established governments, the power of each of which governments was limited by the particular boundaries of its own Colony, their acts having no obligation or force beyond the local limits of such territory. None of these governments, however, exhibited any such body politic as The People, for they all derived their powers, either mediately or immediately, from the British Kings, whose mere agents they ever had been, and then were. Nor were these Societies themselves known by any common name of distinction, but only as the Colony of Virginia, the Colony of Massachusetts Bay, of Canada, of Nova Scotia, and the like; for each of these communities was then separate and distinct, in all things, from every other, the Colonists being connected by no other social or political tie, save that of the allegiance which all acknowledged, not to any People, but to the Crown of Great Britain.

British misrule converted some of these subjects, whose loyalty had once been the highest boast, into sturdy insurgents against the authority they had before delighted to acknowledge; and in triumphant victory they achieved that glorious Revolution, which, under different auspices, might have been branded as a traitorous Rebellion. This Revolution, however, in dissolving the former governments, did not dissolve the former Societies; and years before it was perfected, the Revolt had taken place. No hope could be entertained of ultimate success to this Revolt, unless some new government should be established in the stead of that which had been dissolved, to order and direct proceedings, to sanction acts, to speak and to determine for all its members. But by whom, and for whom, was or could such an Institution as government, be then ordained and established here?

The general answer to this question is obvious. As all government supposes the pre-existence of some established Society, whose affairs it is designed to regulate, and the rules for the Civil conduct of whose members it is required to prescribe, therefore, by none other than some pre-existing and established Society can any government be created or ordained. Even when foreign force is the foundation of government (as is too often the case), still as such force can only be exerted by some established Society over the will of some other Society, or some part of it, when this force is employed with success, the victor Society, while dissolving the former bonds of association of its vanquished antagonists, incorporates them as a part of itself, under whatever conditions it may please to prescribe, and so creates and ordains a government for them. But when the foundation of government is not force, but consent, it would be a paradox to suppose the consent of any others than of those who had the right to consent, that is to say, of the members of that particular pre-existing and established Society for the regulation of whose affairs such government is designed. None then but the pre-existing established Societies in British America, could ordain a government for such Societies, except by force; and the government ordained by any one of these Societies, deriving all its powers from it, could have had no authority except over that Society itself.

When we apply this obvious general conclusion to the facts of the particular case, we must all be at once convinced, that all the primitive governments of the different revolted Colonies of Great Britain must have been ordained and established by the several Societies then existing in the revolted Colonies respectively, and for their own special and particular benefit. Therefore, that none of these governments could have had any other authority than to regulate the affairs of their own creators, and of none others. I say, that these governments must have been so established and so endowed, because at that time there did not exist, nor ever had existed, any such society or community as The People of America, or of the British Colonies in America, or of the revolted British Colonies in America, or under any other name or form, save that of the Colony of Georgia, of South Carolina, etc., etc. Therefore, by these several and distinct communities alone, all our primitive governments must have been, and in point of fact were, ordained and established; and governments being so established, these several communities, their respective authors, thereby assumed to be, and so far as they were severally concerned, became, that great moral and accountable being, a sovereign State, which, having chosen the Democratic form for its government, was known and styled the Commonwealth.

Doubtless the different revolted Colonies might, if they had thought proper, have consented to amalgamate and blend themselves together into one single Society, and then have established any sort of government which they chose for this new community. Had they have done so, we should never have heard of the State of Pennsylvania, or the Commonwealth of Virginia. In that event, none of these former communities would have possessed sovereignty, the essential attribute of a State, for all would have sunk and dwindled into mere municipalities, bodies corporate but not politic, created or permitted to exist, not by their own will, but at the will and pleasure of this other more august being "The Nation" by whatever name that "Nation" might have been pleased to baptise itself. But the patriot Sages of that day did not choose so to do.

Nor was this decision the result of any "State pride," or designed "to find advocates" in any "prejudice," although that prejudice might be "honest." No, it was dictated by that profound and sagacious wisdom which can see the future in the past. These patriot Sages had read, and well knew, that Communities occupying different territories of wide extent, situated under different climates, professing different religions, long governed by different laws, having different manners, habits, customs, occupations, and, of course, many different and conflicting interests, could never be melted down into a single Society, and kept together as such, but by a much stronger power than any which they thought it either safe or prudent to create. Such communities, while separate and distinct, might be well and easily confederated, nay, even united, for many purposes useful to all and essential to some, and still continue to enjoy liberty in peace. But the day which should see them compressed into one Society, to be governed by a single overruling consolidated government, would be the eve of that on which their Freedom must be sacrificed to the power of an interested majority, in the very temple dedicated to its perpetual worship, unless the victim might be saved by arms.

Convinced of this, there was not one Statesman in any of these different Colonies at that day, who even proposed, or who even conceived, so far as we know, the wild and mad project of establishing a single Society, to be composed of all the revolted Colonies, and to be regulated by a consolidated "National" government, stretching itself over all. This conception was the product of an after-day.—How it was treated when it was first presented, I will show at some other time.

Does any one doubt now, whether the first governments established in these now United States, were ordained by the several revolted colonies, each acting as a Sovereign, for itself, and by itself, without any reference to or dependence upon any other colony? Let him consult the history of that day, and he will find that the Revolt was not a simultaneous movement of all these Colonies, but was effected in each by several successive acts performed at different times. Nay, that independent governments had actually been established in several of these colonies, and were in full operation before any declaration of Independence was uttered by them all when assembled in a general Congress. So true is this, that even to this day, it is a matter of amicable contest among several of these different communities, now States, which of them is entitled to the honour of first annulling the Royal Authority within its own domains, and proclaiming itself a patriot Rebel.

Massachusetts claims it and points to the fields of Concord and of Lexington to prove her claim. Virginia claims it, and mentions prior acts of Treason in Arms which she had dared to do. North Carolina claims it and shews her written declaration of Independence, fearlessly promulgated to the world, while some others were yet in doubt which side to take in the struggle to maintain their rights. To Massachusetts and Virginia she might say, your acts of Treason were but Insurrections, for when you performed them you still professed to acknowledge yourselves dependants of the Authority you then resisted in arms; but mine was the first act of glorious Rebellion, for by it I renounced my former allegiance and proclaimed my own Sovereignty.

Does any Virginian sceptic still doubt? I refer him to the date of our first Constitution, to prove that this form of government was ordained and declared by "the Delegates and Representatives of the good People of Virginia" assembled in Convention, before even the date of the declaration of Independence, and long before the signing and promulgation of that act. Referring him also to the language of that Constitution and of its accompanying Declaration of Rights, I ask him to tell me, to whom, after the promulgation of these instruments, did the People of Virginia owe any allegiance?

He will not say, that their allegiance was then due to their former liege Lord the King of Great Britain, for in these acts, after first asserting "that all power is invested in, and consequently derived from the People—that government is, or ought to be, instituted for the common benefit, protection and security of the People—that when any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it"—the authors proceed to declare, "that the government of this Country, as formerly exercised under the Crown of Great Britain, was totally dissolved."

He will not say either, that this allegiance was due to any of the other Colonies, for none of them had any stronger claims to the allegiance of Virginia, than she had to theirs—nor that it was due to any government formed by all the revolted Colonies, for there was no such government at that time—nor to the People of the United Colonies, for no such People had ever existed, nor were these Colonies then united by any political tie whatever.

Were we then a gang of Banditti, a wretched horde of barbarians, a mere savage tribe, without law or any institution of civil polity to bind our society together by the strong bund of a common allegiance?

Assuredly, we were not such, for to prevent this "deplorable condition, to which this once happy country must be reduced, unless some regular adequate mode of civil polity was speedily adopted," the same convention in the very act which declared the total dissolution of the former government, ordained "the future form of Government of Virginia." In this form of Government was proclaimed the name of this new body politic or sovereign by which it was created. This Sovereign was called, "The Commonwealth of Virginia," and all our people pledged themselves through their Representatives "to be faithful and true to this Commonwealth," and called upon their God to attest the solemn pledge.[1]

Was this pledge violated by any overt act of force? The act was declared to be Treason, and the proper punishment of this crime was announced. If it be true then, as the President in his Proclamation says, that "Treason is an offence against sovereignty, and sovereignty must reside with the power to punish it," the Commonwealth of Virginia which defined this crime against itself, provided for its punishment, and once at least inflicted, it must have been a sovereign.[2] But if ever a sovereign, she became such at the moment when she "totally dissolved" the former government, and in establishing a new form of government for herself, thereby announcing her absolute independence. All these acts were done before the fourth day of July, 1776. By these acts she then became free, sovereign, and independent; and from the bottom of my heart do I unite with the President in the fervent prayer, "May the great Ruler of Nations grant that the signal blessings with which he has favoured us, may not, by the madness of party or personal ambition, be disregarded and lost." But what is this ideal being of which every Virginian then acknowledged, and every Virginian still acknowledges, himself to be a liege, and which we have called "The Commonwealth of Virginia." It is the People of Virginia. The members of that established society within this "Ancient Dominion," who renouncing all allegiance to a former Sovereign, incorporated themselves into a body politic, chose to bestow upon themselves this new Corporate name, in order to preserve and perpetuate the succession of the sovereign rights which they had then assumed.—Most of these patriots have sunk into the tomb, and the few who remain must follow them ere long; but long after the last of them shall be no more, that body politic and corporate styled "the Commonwealth of Virginia," will, by the blessing of God, still live; and while it does live, this name will denote the People of Virginia of any other day, as expressively and as justly as it did those by whom the name was first assumed.—That Commonwealth yet lives, and remains as sovereign now as then, unless it has done or suffered some act in the interim, to abrogate its powers or annul its rights.

The people of Virginia, in shaking off their former allegiance, establishing a new form of government for themselves, and so assuming sovereignty and independence, did no more than was done, sooner or later, by each and every one of the thirteen revolted Colonies of Great Britain.

Each of these, like Virginia, became, in virtue of such acts, that free, sovereign, and independent body politic called a State; and becoming such, it took upon itself any corporate name it chose to adopt. But as all the governments then established were Representative Democracies, this corporate name, whether it was the Commonwealth or any other, was designed to denote the free people of that pre-existing and established society before known by the name of some of the revolted British Colonies.

If, then, we ask, who constituted at that time that great Corporation and Sovereign body politic which I have called The People, which is the Lord of all in these now United States, the answer is, not the People of all the revolted Colonies collectively, but the People of each of them respectively. All individuals, being members of any one of these separate, distinct, and independent masses, owed faith, and truth, and allegiance to that particular mass, which, under some selected corporate name, designed to distinguish it from all others, was then proclaimed as their only earthly sovereign.

Such were the People of these Colonies then. As individuals they were subjects, as a body politic and corporate they were the sovereign of these subjects.

Such sovereigns and such subjects these People have been ever since, and still are, unless (as I have said before) they have done or suffered some act, during the interval of time which has elapsed since they took upon themselves these characters, to change this, their moral and political condition. Have they done so? This is the question which I propose to examine in my next Number.

  1. The form of the present Oath of Allegiance in Virginia, or "the assurance of fidelity," as it is here called, is a curious and important instrument, to which I shall probably refer at some other time. It runs thus: "I — —, do declare myself a citizen of the Commonwealth of Virginia; I relinquish and renounce the character of subject or citizen of any Prince or other State whatsoever; and abjure all allegiance which may be claimed by such Prince or other State; and I do swear to be faithful and true to the said Commonwealth of Virginia, so long as I continue a citizen thereof. So help me God" (see Revised Code of 1819, Vol. I., p. 72).

    No person has power to act in any office, legislative, executive, or judiciary, before he shall have given this assurance; and all who may by law be required to give assurance of fidelity, must for that purpose take this oath. [See the Law ut supra, which was re-enacted on the 7th day of January, 1818.]

  2. The law of Virginia defining and punishing Treason, is the sanction of the oath of fidelity, and is not less curious and important than the form of that assurance. It is in these words: "If a man do levy war against the Commonwealth in the same, or be adherent to the enemies of the Commonwealth, within the same, giving to them aid and comfort in the Commonwealth, or elsewhere, and thereof be legally convicted of open deed, by the evidence of two sufficient and lawful witnesses, or his own voluntary confession, the cases above rehearsed shall be judged Treason which extendeth to the Commonwealth, and the persons so convicted, and, his or her aiders, abettors and counsellors, being thereof convicted, shall suffer death, by hanging by the neck without benefit of clergy. Also, every person or persons, who shall erect or establish, or cause or procure to be erected or established, any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the Legislature of this Commonwealth for that purpose first obtained; or who shall, in any such usurped government, hold or execute any office, legislative, executive, judiciary, or ministerial, by whatever name such office may be distinguished or called; or who shall swear, or otherwise solemnly profess allegiance or fidelity to the same; or who shall, under pretext of authority derived from, or protection afforded by, such usurped government resist or oppose the due execution of the laws of this Commonwealth, shall be adjudged guilty of high Treason, and shall be proceeded against, and punished in the same manner as other Traitors may be proceeded against and punished."—[See Revised Code of 1819, Vol. I., p. 591.] The scholar may read the rough English of some parts of this statute, as he does the bald and confessedly bad Latin of Magna Cliarta, with a contemptuous sneer; but let him remember, that it is not to learning, but to knowledge, we are indebted for our Liberty. Let him also remember, that in Virginia, we do not value highly that pedantry, which would amend the provisions of old instruments for the mere purpose of making their style more smooth, grammatical, or classical. Those who re-enacted this statute on the 28th of January, 1819, copied the rough parts of it from the old act of 1776, which was believed to be an accurate paraphrase of a very old English statute, written, I believe, in the Norman French.