and the various departments of government only ministerial agents to execute their will.

Under our various constitutions, whether federal or State, every inhabitant of the United States is either a denizen or a citizen. If made a denizen he is born by operation of law into civil life; if made a citizen he is born into a political life, and shares in the exercise of sovereignty. The passage from denizenship to a citizenship is an evolution from subjection to sovereignty; from mere obedience to the laws to allegiance to those laws, and to an equal share in the political privileges of the people, who are the makers of the laws. No citizen can owe allegiance to any particular State, but only to the United States as one people exercising sovereignty over all the States united. But he owes obedience to the laws of every State within whose borders he may be, as well as to those of the United States wherever he may be, for he carries the obligations of citizenship with him even into foreign countries. The maxim, nemo potest exuere patriam, finds full application here.1 Allegiance, being much wider in the scope of its obligations, belongs to political and sovereign, rather than to civil or delegated jurisdiction. It is, therefore, always regarded as an individual and filial tie, and not as an official one. This is the foundation upon which many of the European governments have based their unwillingness to recognize the efficacy of our naturalization laws, in protecting their subjects when naturalized as citizens of the United States, from the operations of a military conscription on revisiting their native land. In several instances they have required special treaty provisions before admitting such protection to exist.2

1 Talbot v. Jansen, 3 Dall. 133.

2 U. S Stat. at Large: "Public Treaties," title "Reciprocal Privileges of Citizens."

Inasmuch as all representative government must begin in some legislative act of the people, and as such act of primary and plenary sovereignty usually takes the form of a convention, the first question which naturally arises is that relating to the character of such an assembly. Was it a revolutionary or a constitutional convention? It is manifest that if a constitution already exists in any political society as an organic law the only constitutional convention which can legally alter, amend, or reconstruct this charter is one whose members have been elected under its provisions. Any other body of delegates sitting as a convention becomes prima facie revolutionary. Its acts, consequently, are a nullity. As a general proposition, therefore, it may be stated that a convention always assembles for one of three purposes, viz., either to unmake and overthrow established laws in an irregular way; to frame a new constitution, or to alter or repeal parts of an already existing one. In the former case it is a revolutionary body; in the latter it is a constitutional convention.1

But the possession of sovereignty by a community being a fact, and not always the result of law, a new constitution might become valid independent of the provisions of a former one. Thus, in the early days of the Republic, government in many of the colonies was wholly democratic. For instance, Hutchinson informs us that the Massachusetts colony, from 1640 to 1660, approached very near to an independent Commonwealth, and during this period completed a system of laws and government the plan of which they had before laid and begun to execute. In this they departed from their charter, and instead of making the laws of England the foundation of their code they preferred the laws of Moses.

1 Luther v. Borden, 7 How. 1; Texas v. White, 7 Wall. 700.

Some justification for this supersedure of the laws of England may be found in the fact stated by John Adams that the settlement of New England by the English was not a national act at national expense, nor made on territory belonging to the people or crown of England; hence the colonists were at first considered more as allies than as subjects.1

Their charter, moreover, was a peculiar one and shows that there was no provision securing to the actual colonists, whether connected or not with the corporate body in England, any share in the local government. Whoever came there came as an expatriated settler, and had to submit himself to the laws of the land as there promulgated. The elective franchise was governed entirely by the will of the grantees, who made it depend upon church membership. It was in every sense a democratic despotism, for although they were forbidden to make any laws inconsistent with those of England, they nevertheless disregarded the charter in all respects in which they did not find it convenient to themselves.2 Letchford, who was himself one of the few lawyers in the Massachusetts colony, tells us, in his sketch of its government, that in "the General Court were tried all actions and causes, civil, criminal, and ecclesiastical," and that the colonists claimed the combined powers of "Parliament, the King's Bench, the Common Pleas, Chancery, High Commission, and Star Chamber. They put to death, banished, fined, cut off ears, whipped, and imprisoned persons, and that without sufficient record."3

In this exercise of sovereign authority they repeated the action of the primary assemblies of the people among the Germans, who, according to Tacitus, tried capital

1 Works, vol. 2, p. 2.

22 Story's Life, p. 177; 2 Hutch. Hist., p. 3.

Plaine Dealing, p. 23; Mass. Hist. Coll., 3d Ser's, vol. 3; Washburn, Jud. Hist. Mass., 28.

cases and executed their own sentences.' The justification for such conduct can only be found in that executive power of the law of nature which exists in a community where authority is not yet organized into departments, because not yet delegated.

As an illustration of this may be cited the instance given by Baylies, in his Memoir of Plymouth Colony, of an inhabitant of Newport, in Rhode Island, who was tried for a capital offense before a Town Meeting, convicted, sentenced, and executed in pursuance of the judgment there pronounced. And this case, however strange, was not even then without parallel; for England's leading historian informs us that Parliament, under the Commonwealth, occupied itself for ten days in trying the case of one James Naylor, a ranting Quaker and lunatic, whom they convicted of blasphemy and condemned to be pilloried, whipped, burned in the face, and to have his tongue bored through with a red-hot iron.3 But Parliament had this defense, that it was a judicial body imitating its progenitor, the Saxon Witan, which was the Supreme Court of justice both in civil and criminal cases, while a Massachusetts town meeting was not. The authority which this latter assumed was entirely outside of the charter, and indicated a primitive state of society in which the will of the people, however expressed, was the sovereign source of administrative law.

It is certain that the Pilgrims adopted no constitution other than the compact signed in the cabin of the Mayflower. This was to them a spiritual constitution revealing the interior principles of their political faith, and was intended to precede the civil laws of the colony

De. Mor. Ger. XII. 2 Vol. 1, p. 224. 3 Hume, vol. 5, p. 523. The charter creating a private corporation only, and without any municipal rights, gave the colonists no authority to inflict penalties. This was the current opinion in England. Adams's Emancipation of Massachusetts, p. 83; New England Jonas, p. 5.

that were destined to be born under it; for, previous to the year 1636, the Plymouth colony was only a voluntary association ruled by a majority rather than by fixed laws. Legislative and judicial functions were combined in the same body. Trials were had in the General Court before juries selected from the whole body of freemen. Finally, in the year 1635, it was found necessary to define the limits of power belonging to both magistrates and people.

In emerging, therefore, from these provincial forms of government it is unquestionably true, because doubtless unavoidable, that the functions of a constitutional convention in the American colonies were often exercised by purely revolutionary conventions, and this because in the overthrow of a former system of government the whole effect produced was, in its intention, revolutionary from the inception. The history of the contest over the charter of the Massachusetts Bay colony and other colonies shows that the seeds of republicanism were in the air, and long before any outward revolution had occurred the corporation of most of the New England colonies had converted itself into a Commonwealth. Political society being then disorganized and its framework entirely subverted, the people, whose delegates met in such conventions, simply exercised the inherent rights belonging to any community of colonists whose bonds of alliance with the mother country had been sundered. Accordingly, the exercise of these political rights in their highest application to human necessities found expression in the formation of an independent Commonwealth.

Nor were the American colonists wanting in precedents to justify them in the adoption of such a course. In the English revolutions of 1660 and 1688, we have notable instances of convention Parliaments illegally calling sovereigns to the throne, and subse