"Reviving the American tradition of liberty"
A
BRIEF ENQUIRY
INTO THE
TRUE NATURE AND CHARACTER
OF OUR
FEDERAL GOVERNMENT:
BEING A REVIEW
OF
JUDGE STORY'S COMMENTARIES
ON THE
CONSTITUTION OF THE UNITED STATES,
BY ABEL P. UPSHUR
WITH AN INTRODUCTION AND COPIOUS CRITICAL AND
EXPLANATORY NOTES.by
C. CHAUNCEY BURR.
NEW YORK:
VAN EVRIE, HORTON & CO.,
No. 162 NASSAU STREET.1868.
Initially rendered into HTML by Thom Anderson, HTML revised and text version by Jon Roland of the Constitution Society.
Entered according to Act of Congress, in the year 1868 byVAN EVRIE, HORTON & Co.,
In the Clerk's office of the District Court of the United States, for
the Southern District of New York
INTRODUCTION BY THE EDITOR.
The author of this volume was considered one of the ablest legal minds in the United States. He studied law under William Wirt, the eminent author of the Life of Patrick Henry, and his practiced profession with great success from 1810 to 1824. After an interval of retirement, he held a high judicial position as Judge of the General Court of Virginia, from 1826 to 1841; at which time he entered Mr. Tyler's Cabinet as Secretary of the Navy. On Mr. Webster's retirement, in the spring of 1843, Judge Upshur succeeded him as Secretary of State. On the 28th of February 1844, the explosion of the great gun ("Peacemaker") on board the steamer Princeton killed this eminent jurist and statesman. His reputation in private life was as spotless as his public fame was exalted and unrivaled.
This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to invalidate the soundness of its reasoning. As a law writer, Judge Story has been regarded as one of the ablest of his school, which was that of the straightest type of "Federalists" of the elder Adams's party. His commentaries are a good deal marred with the peculiar partisan doctrines of that school of politicians; indeed, they may be looked upon as a plea for the severe political principles which ruled the administration of President John Adams. The Alien and Sedition Laws, which have long since passed into a by-word of reproach, will still find abundant support in Judge Story's Commentaries. He perpetually insisted on construing the Constitution from the standpoint of that small and defeated party in the Federal Convention which wanted to form a government on the model of the English monarchy in everything but the name. This party was powerful in respectability and talents, but weak or few in numbers — and after it was so signally defeated in the Constitutional Convention, it still held on to its monarchical principles, and sought to invest the new government with kingly powers, notwithstanding the Constitution had been constructed upon principles entirely opposite to its doctrine. In a letter of U. S. Senator John Langdon, of New Hampshire to Samuel Ringgold, of the date of October 10th, 1800, he says: "Mr. Adams certainly expressed himself that he hoped, or expected to see the day when Mr. Taylor, and his friend, Mr. Giles, would be convinced that the people of America would never be happy without a hereditary Chief Magistrate and Senate or at least for life." Mr. Rose, a Senator from Pennsylvania, and a friend of the Adams party, left the table of Mr. Hollines, of Philadelphia, when "the Constitution of the United States" was given as a toast. John Wood, the historian of the time, speaking of the principles of the Federalists, says: "They bestowed unbounded panegyrics upon Alexander Hamilton, because this gentleman acted the part of Prime Minister to the President. They thought the administration and the government ought to be confounded and identified; that the administration was the government, and the government the administration; and that the people ought to bow in tame submission to its whim and caprice." Writing of Mr. Adams, Jefferson says: "Mr. Adams had originally been a Republican. The glare of royalty and nobility, during his mission in England, had made him believe their fascination to be a necessary ingredient in government. His book on the American Constitution had made known his political bias. He was taken up by the monarchical Federalists in his absence, and was by them, made to believe that the general disposition of our citizens was favorable to monarchy."
At a dinner given by Mr. Jefferson, when he was a member of Washington's Cabinet, he declares that, "after dinner, Mr. Adams said: 'Purge the British Constitution of its corruption, and give to its popular branch equality of representation, and it would be the most perfect Constitution ever devised by the wit of man.' Hamilton replied: 'Purge it of its corruption, and give to its popular branch equality of representation, and it would become then an impracticable government. As it stands at present, with all its supposed defects, it is the most perfect government that ever existed.'" Mr. Jefferson adds: "Hamilton was not only a monarchist, but for a monarchy bottomed on corruption." The Federalists having a majority in Congress, passed an act to continue in force during the administration of Mr. Adams, declaring that "if any person should write or publish, or cause to be published, any libel against the Government of the United States, or either House of Congress, or against the President, he shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." A great many editors, and other gentlemen, were imprisoned under this act. Even to ridicule the President was pronounced by the corrupt partisan judges a violation of the law. Men were beaten almost to death for neglecting to pull off their hats when the President was passing, and every man who did not instantly prostrate himself before the ensigns of Federal royalty, was denounced as the enemy of his country. The following letter, addressed to President John Adams by the merchants of Boston, shows to what lengths that party had dragged the public mind in the direction of monarchy:
"We, the subscribers, inhabitants and citizens of Boston, in the State of Massachusetts, deeply impressed with the alarming situation of our country, and convinced of the necessity of uniting with firmness at this interesting crisis, beg leave to express to you, the Chief Magistrate and supreme ruler over the United States, our fullest approbation of all the measures, external and internal, you have pleased to adopt, under direction of divine authority. We beg leave also to express the high and elevated opinion we entertain of your talents, your virtue, your wisdom and your prudence; and our fixed resolution to support, at the risk of our lives and fortunes, such measures as you may determine upon to be necessary for promoting and securing the honor and happiness of America."
Any one can see that men who could address the President after this fashion, had a great deal less respect for the restraints and limitations of a written Constitution, than for the will and force of individual power. That was the drift of a certain portion of public opinion in America at that time. But the tyrannical excesses of that party soon brought it into such odium, that it was driven from power by the election of Mr. Jefferson to the Presidency. Though defeated, its partisans never ceased to labor to drag the Constitution away from its Democratic foundations, by giving the Constitution a construction utterly antagonistic to the intentions of the Convention which framed and of the States which adopted it. The great vice of the Federalists consisted in desiring to clothe the Federal Government with almost monarchical powers; whereas the States had carefully and resolutely reserved the great mass of political power to themselves. The powers which they delegated to the Federal Government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no State imagined it was surrendering when it, adopted the Constitution. Mr. Madison dwelt with great force upon the fact that "a delegated is not a surrendered power." The States surrendered no powers to the Federal Government. They only delegated them. The powers of the States are original. Those of the Federal Government are only derived and secondary; and they were delegated, not for the purpose of aggrandizing the Federal Government, but for the sole purpose of protecting the rights and sovereignty of "the several States." The Federal Government was formed by the States for their own benefit. The Federal Government is simply an agency, commissioned by the "several States" for their own convenience and safety. In the Convention of Virginia, Patrick Henry said: "Liberty, sir, is the primary object. Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take away everything else." And, with an eloquence more powerful than that which shook the throne of Macedon, he demonstrated that the battles of the Revolution were fought, not to make "a great and mighty empire," but "for liberty." It was for liberty — for the liberty of the people of the "several States" that the Federal Government was established. Not for the kingly grandeur and power of government, but for the happiness, safety and liberty of "the people of the several States." Nothing could possibly be stronger than the determination pervading the mind of the Federal Convention to sacrifice no iota of the essential sovereignty of the States in the formation of the general Union. This feeling was most happily expressed by Chief Justice Ellsworth, of Connecticut, in, the Convention that framed our Constitution, in the following words:
"I want domestic happiness as well as general security. A General Government will never grant me this, as it cannot know my wants, nor relieve my distress. My State is only as one out of thirteen. Can they, the General Government, gratify my wishes? My happiness depends as much on the existence of my State Government as a new-born infant depends upon its mother for nourishment."
In the Convention of Massachusetts, Fisher Ames said:
"A consolidation of the States would subvert the new Constitution, and against which this article is our best security. Too much provision cannot be made against consolidation. The State Governments represent the wishes and feelings, and local interests of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights."
Such were the views and sentiments of the men who framed and who adopted the Federal Constitution. But Judge Story belonged to another school of politicians, and his Commentaries upon the Constitution were written in the interests of the Consolidationists, who have ever insisted on giving that instrument an interpretation in harmony with their wishes and ideas. This review of Judge Upshur, however, does not leave a single point of the Federalistic heresy unanswered. It will ever stand as a text-book of the true theory of our government. We are confident that no book has ever appeared in this country which so thoroughly meets the demands of the present hour. With this book in his hand, the Democratic statesman or orator is armed at every point against the sophistries of the foes of State sovereignty and self-government. There is no vital point which it does not discuss and settle upon the basis of invulnerable truth.
The Notes which we have added, we hope, will be found useful to the unprofessional reader. They will show that the authors reasoning is confirmed by our Constitutional history and by the early decisions of the Supreme Court.
In every instance, our own Notes are distinguished from those of the author by our initials —
" C. C. B."
PREFACE BY THE AUTHOR.
The book to which the following pages relate has been for several years before the public. It has been reviewed by some of the principal periodicals of the country, and recommended in the strongest terms to public favor. I have no disposition to detract from its merits as a valuable compendium of historical facts, or as presenting just views of the Constitution in many respects. My attention has been directed to its political principles alone, and my sole purpose has been to inquire into the correctness of those principles, so far as they relate to the true nature and character of our Federal Government,
It may well excite surprise, that so elaborate a work as this of Judge Story, and one so well calculated to influence public opinion, should have remained so long unnoticed by those who do not concur in the author's views. No one can regret this circumstance, more than I do; for I would willingly have devolved upon abler hands the task which I now have undertaken. I offer no apology for the manner in which that task has been performed. It is enough for me to say, that the reader, howsoever favorable his opinion of this essay may be will not be more sensible of its imperfections than I am. I know that the actual practice of the Federal Government for many years past, and the strong tendencies of public opinion in favor of federal power, forbid me to hope for a favorable reception, except from the very few who still cherish the principles which I have endeavored to reestablish.
The following essay was prepared about three years ago, with a view to its publication in one of our periodical reviews. Circumstances, which it is unnecessary to mention, prevented this from being done, and the work was laid aside and forgotten. My attention has been again called to it within a few weeks past, and I am now induced to give it to the public, under the hope that it may not be without its influence in directing the attention of those, who have not yet lost all interest in the subject, to the true principles of our constitution of government.
I do not claim the merit of originality. My conclusions are drawn from the authentic information of history, and from a train of reasoning, which will occur to every mind, on the facts which history discloses. My object will be answered, if even the few by whom these pages will probably be read shall be induced to re-examine, with a sincere desire after truth, the great principles upon which political parties in our country were once divided, but which there is much reason to fear are no longer respected, even if they be not wholly forgotten.
I do not offer this essay as a commentary on the Federal Constitution. Having proposed to myself but a single object, I have endeavored to compress my matter within as small a compass as possible, consistent with a due regard to clearness, and a proper reference to authorities, where authorities are relied on.
THE TRUE NATURE AND CHARACTER
OF OUR
FEDERAL GOVERNMENT.
CHAPTER I.
THE CHARACTER OF JUDGE STORY'S COMMENTARIES ON THE CONSTITUTION.
It came within the range of Judge Story's duties, as Dane Professor of Law in Harvard University, to expound and illustrate the Constitution of the United States. His lectures upon that subject have been abridged by himself, and published in a separate volume. Although the work is given to the public as an abridgment, it is nevertheless, as it professes to be, "a full analysis and exposition of the constitution of government of the United States and presents, in the opinion of the author himself, the "leading doctrines" of the original, "so far as they are necessary to a just understanding of the actual provisions of the Constitution." The author professes to have compiled it "for the use of colleges and high schools," but as it contains all the important historical facts, and all the leading reasons upon which his own opinions have been based, and as it has been prepared with elaborate care in other respects, we may reasonably suppose, without impeaching his modesty, that he expected it to be received as a complete work. It is, indeed, quite as full as any such work needs to be, for any purpose, except, perhaps, the very first lessons to the student of constitutional law. The politician and the jurist may consult it, with a certainty of finding all the prominent topics of the subject fully discussed.
A work presenting a proper analysis and correct views of the Constitution of the United States has long been a desideratum with the public. It is true that the last fifteen years have not been unfruitful in commentaries upon that instrument; such commentaries, however, as have, for the most part met a deserved fate, in immediate and total oblivion. Most of them have served only to throw ridicule upon the subject which they professed to illustrate. A few have appeared, however, of a much higher order, and bearing the stamp of talent, learning, and research. Among these, the work before us, and the Commentaries of Chief Justice Kent, hold the first rank. Both of these works are, as it is natural they should be, strongly tinctured with the political opinions of their respective authors; and as there is a perfect concurrence between them in this respect, their joint authority can scarcely fail to exert a strong influence upon public opinion. It is much to be regretted that some one, among the many who differ from them in their views of the Constitution, and who possess all the requisite qualifications for the task, should not have thought it necessary to vindicate his own peculiar tenets, in a work equally elaborate, and presenting just claims to public attention. The authority of great names is of such imposing weight, that mere reason and argument can rarely counterpoise it in the public mind; and its preponderance is not easily overcome, except by adding like authority to the weight of reason and argument, in the opposing scale. I hope it is not yet too late for this suggestion to have its effect upon those to whom it is addressed.
The first commentary upon the Constitution, the Federalist, is decidedly the best, which has yet appeared. The writers of that book were actors in all the interesting scenes of the period, and two of them were members of the convention which formed the Constitution. Added to this, their extensive information, their commanding talents, and their experience in great public affairs, qualified them, in a peculiar degree, for the task which they undertook. Nevertheless, their great object was to recommend the Constitution to the people, at a time when it was very uncertain whether they would adopt it or not; and hence their work, although it contains a very full and philosophical analysis of the subject, comes to us as a mere argument in support of a favorite measure, and, for that reason, does not always command our entire confidence. Besides, the Constitution was and its true character, which is to be learned only from its practical operation, could only be conjectured. Much has been developed, in the actual practice of the government, which no politician of that day could either have foreseen or imagined. New questions have arisen, not then anticipated, and difficulties and embarrassments, wholly unforeseen, have sprung from new events in the relation of the States to one another, and to the general government. Hence the Federalist cannot be relied on, as full and safe authority in all cases. It is, indeed, matter of just surprise, and affording the strongest proof of the profound wisdom and far-seeing sagacity of the authors of that work, that their views of the Constitution have been so often justified in the course of its practical operation. Still, however, it must be admitted that the Federalist is defective in some important particulars, and deficient in many more. The Constitution is much better understood at this day than at the time of its adoption. This is not true of the great principles of civil and political liberty, which lie, at the foundation of that instrument; but it is emphatically true of some of its provisions, which were considered at the time as comparatively unimportant, or so plain as not to be misunderstood, but which have been shown, by subsequent events, to be pregnant with the greatest difficulties, and to exert the most important influence upon the whole character of the government. Contemporary expositions of the Constitution, therefore, although they should be received as authority in some cases, and may enlighten our judgments in most others, cannot be regarded as safe guides, by the expounder of that instrument at this day. The subject demands our attention now as strongly as it did before the Federalist was written.1
It is not surprising, therefore, that the work now under consideration should have been hailed with pleasure and received with every favorable disposition. Judge Story fills a high station in the judiciary of the United States, and has acquired a character, for talents and learning, which ensures respect to whatever he may publish under his own name. His duty, as a Judge of the Supreme Court, has demanded of him frequent investigations of the nicest questions of constitutional law; and his long service in that capacity has probably brought under his review every provision of that instrument in regard to which any difference of opinion has prevailed. Assisted as he has been by the arguments of the ablest counsel, and by the joint deliberations of the other judges of the court, it would be indeed wonderful, if he should hazard his well-earned reputation as a jurist, upon any hasty or unweighed opinion, upon subjects so grave and important. He has also been an attentive observer of political events, and although by no means obtrusive in politics, has yet a political character, scarcely less distinguished than his character as a jurist. To all, these claims to public attention and respect, may be added a reputation for laborious research, and for calm and temperate thinking. A work on the Constitution of the United States, emanating from such a source, cannot fail to exert a strong influence upon public opinion, and it is, therefore, peculiarly important that its real character should be understood. Whatever may be the cast of its political opinions, it can scarcely fail to contain many valuable truths, and much information which will be found useful to all classes of readers. And, so far as its political opinions are concerned, it is of the highest importance to guard the public mind against the influence which its errors, if errors they be, may borrow from the mere authority of the distinguished name under which they are advanced.
The plan of the work before us is very judicious. In order to a correct understanding of the Constitution, it is absolutely necessary to understand the situation of the States before it was adopted. The author, acting upon this idea, distributes his work into three great divisions. "The first will embrace a sketch of the charters, constitutional history, and anterevolutionary jurisprudence of the Colonies. The second will embrace the constitutional history of the States, during the Revolution, and the rise, progress, decline, and fall of the Confederation. The third will embrace the history of the rise and adoption of the Constitution, and a full exposition of all its provisions, with the reasons on which they were respectively founded, the objections by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government, as may best enable the reader to estimate for himself, the true value of each." This plan is at once comprehensive and analytical. It embraces every topic necessary to a full understanding of the subject, while, at the same time, it presents them in the natural order of investigation. It displays a perfect acquaintance with the true nature of the subject, and promises every result which the reader can desire. The first part relates to a subject of the greatest interest to every American, and well worthy the study of philosophical enquirers, all over the world. There is not, within the whole range of history, an event more important, with reference to its effects upon the world at large, than the settlement of the American Colonies. It did not fall within the plan of our author to enquire very extensively, or very minutely, into the mere history of events which distinguished that extraordinary enterprise. So far as the first settlers may be regarded as actuated by avarice, by ambition, or by any other of the usual motives of the adventurer, their deeds belong to the province of the historian alone. We, however, must contemplate them in another and a higher character. A deep and solemn feeling of religion, and an attachment to, and an understanding of, the principles of civil liberty, far in advance of the age in which they lived, suggested to most of them the idea of seeking a new home and founding new institutions in the western world. To this spirit we are indebted for all that is free and liberal in our present political systems, it would be a work of very great interest, and altogether worthy of the political historian, to trace the great principles of our institutions back to their sources. Their origin would probably be discovered at a period much more remote than is generally supposed. We should derive from such a review much light in the interpretation of those parts of our systems as to which we have no precise rules in the language of our constitutions of government. It is to be regretted that Judge Story did not take this view of the subject. Although not strictly required by the plan of his work, it was, nevertheless, altogether consistent with it, and would have added much to its interest with the general reader. His sources of historical information were ample, and his habits and the character of his mind fitted him well for such an investigation, and for presenting the result in an analytical and philosophical form. He has chosen, however, to confine himself within much narrower limits. Yet, even within those limits, he has brought together a variety of historical facts of great interest, and has presented them in a condensed form, well calculated to make a lasting impression on the memory. The brief sketch which he has given of the settlement of the several colonies, and of the charters from which they derived their rights and powers as separate governments, contains much to enable us to understand fully the relation which they bore to one another and to the mother country. This is the true starting point in the investigation of those vexed questions of constitutional law which have so long divided political parties in the United States. It would seem almost impossible that any two opinions could exist upon the subject; and yet the historical facts, upon which alone all parties must rely, although well authenticated and comparatively recent, have not been understood by all men alike. Our author was well aware of the importance of settling this question at the threshold of his work. Many of the powers which have been claimed for the Federal Government, by the political party to which he belongs, depend upon a denial of that separate existence, and separate sovereignty and independence, which the opposing party has uniformly claimed for the States. It is, therefore, highly important to the correct settlement of this controversy, that we should ascertain the precise political condition of the several colonies prior to the Revolution. This will enable us to determine how far Judge Story has done justice to his subject, in the execution of the first part of his plan; and by tracing the colonies from their first establishment as such, through the various stages of their progress up to the adoption of the Federal Constitution, we shall be greatly aided in forming a correct opinion as to the true character of that instrument.
CHAPTER II.
THE NON-RELATION OF THE COLONIES TO EACH OTHER —
THEY WERE NOT ONE PEOPLE.It appears to be a favorite object of Judge Story to impress upon the mind of the reader, at the very commencement of his work, the idea that the people of the several colonies were, as to some objects, which he has not explained, and to some extent which he has not defined, "one people." This is not only plainly inferable from the general scope of the book, but is expressly asserted in the following passage "But although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other. On the contrary, they were fellow-subjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other colony, and as a British subject he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by the general laws of the British empire, and could not be restrained or obstructed by colonial legislation. The remarks of Mr. Chief Justice Jay are equally just and striking: "All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him, and all the civil authority then existing or exercised here flowed from the head of the British empire. They were in a strict sense fellow-subjects and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connection which results from the mere circumstance of being governed by the same prince.'"
In this passage the author takes his ground distinctly and boldly. The first idea suggested by the perusal of it is, that he discerned very clearly the necessity of establishing his position, but did not discern quite so clearly by what process of reasoning he was to accomplish it. If the passage stood alone, it would be fair to suppose that he did not design to extend the idea of a unity among the people of the colonies beyond the several particulars which he has enumerated. Justice to him requires that we should suppose this; for, if it had been otherwise, he would scarcely have failed to support his opinion by pointing out some one of the "many purposes," for which the colonies were, in his view of them, "one people." The same may be said of Mr. Chief Justice Jay. He also has specified several particulars in which he supposed this unity to exist, and arrives at the conclusion, that the people of the several colonies were, "in a variety of respects, one people." In what respect they were "one," except those which he has enumerated, he does not say and of course it is fair to presume that he meant to rest the justness of his conclusion upon them alone. The historical facts stated by both of these gentlemen are truly stated; but it is surprising that it did not occur to such cool reasoners, that every one of them is the result of the relation between the colonies and the mother country, and not the result of the relation between the colonies themselves. Every British subject, whether born in England proper or in a colony, has a right to reside anywhere within the British realm; and this by the force of British laws. Such is the right of every Englishman, wherever he may be found. As to the right of the colonist to inherit lands by descent in any other colony than his own, Judge Story himself informs us that it belonged to him "as a British subject." That right, indeed, is in consequence of his allegiance. By the policy of the British constitution and laws, it is not permitted that the soil of her territory should belong to any from whom she cannot demand all the duties of allegiance. This allegiance is the same in all the colonies as it is in England proper and, wherever it exists, the correspondent right to own and inherit the soil attaches. The right to regulate commercial intercourse among her colonies belongs, of course, to the parent country, unless she relinquishes it by some act of her own; and no such act is shown in the present case. On the contrary, although that right was resisted for a time by some of the American colonies, it was fully yielded, as our author himself informs us, by all those of New England, and I am not informed that it was denied by any other. Indeed, the supremacy of Parliament, in most matters of legislation which concerned the colonies, was generally — nay, universally — admitted up to the very eve of the Revolution. It is true, the right to tax the colonies was denied, but this was upon a wholly different principle. It was the right of every British subject to be exempt from taxation, except by his own consent; and as the colonies were not, and from their local situation could not be, represented in Parliament, the right of that body to tax them was denied, upon a fundamental principle of English liberty. But the right of the mother country to regulate commerce among her colonies is of a different character, and it never was denied to England by her American colonies, so long as a hope of reconciliation remained to them. In like manner, the facts relied on by Mr. Jay, that "all people of this country were then subjects of the King of Great Britain, and owed allegiance to him" and that "all the civil authority then existing or exercised here flowed from the head of the British empire," are but the usual incidents of colonial dependence, and are by no means peculiar to the case he was considering. They do, indeed, prove a unity between all the colonies and the mother country, and show that these, taken altogether, are in the strictest sense of the terms, "one people"; but I am at a loss to perceive how they prove, that two or more parts or subdivisions of the same empire necessarily constitute "one people." If this be true of the colonies, it is equally true of any two or more geographical sections of England proper; for every one of the reasons assigned applies as strictly to this case as to that of the colonies. Any two countries may be "one people," or "a nation de facto," if they can be made so by the facts that their people are "subjects of the King of Great Britain, and owe allegiance to him," and that "all the civil authority exercised therein flows from the head of the British empire."
It is to be regretted that the author has not given us his own views of the sources from which these several rights and powers were derived. If they authorize his conclusion, that there was any sort of unity among the people of the several colonies, distinct from their common connection with the mother country, as parts of the same empire, it must be because they flowed from something in the relation betwixt the colonies themselves, and not from their common relation to the parent country. Nor is it enough that these rights and powers should, in point of fact, flow from the relation of the colonies to one another; they must be the necessary result of their political condition. Even admitting, then, that they would, under any state of circumstances, warrant the conclusion which the author has drawn from them, it does not follow that the conclusion is correctly drawn in the present instance. For aught that he has said to the contrary, the right of every colonist to inhabit and inherit lands in every colony, whether his own or not, may have been derived from positive compact and agreement among the colonies themselves; and this presupposes that they were distinct and separate, and not "one people." And so far as the rights of the mother country are concerned, they existed in the same form, and to the same extent, over every other colony of the empire. Did this make the people of all the colonies "one people?" If so, the people of Jamaica, the British East India possessions, and the Canadas are, for the very same reason, "one people" at this day. If a common allegiance to a common sovereign, and a common subordination to his jurisdiction, are sufficient to make the people of different countries "one people," it is not perceived (with all deference to Mr. Chief Justice Jay) why the people of Gaul, Britain, and Spain might not have been "one people," while Roman provinces, notwithstanding "the patriots" did not say so. The general relation between the colonies and the parent country is as well settled and understood as any other, and it is precisely the same in all cases, except where special consent and agreement may vary it. Whoever, therefore, would prove that any peculiar unity existed between the American colonies, is bound to show something in their charters, or some peculiarity in their condition, to exempt them from the general rule. Judge Story was too well acquainted with the state of the facts to make any such attempt in the present case. The Congress of the nine colonies, which assembled at New York, in October, 1765, declare that the colonists "owe the same allegiance to the Crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain." "That the colonists are entitled to all the inherent rights and liberties of his [the King's] natural born subjects within the Kingdom of Great Britain," We have here an all-sufficient foundation of the right of the Crown to regulate commerce among the colonies, and of the right of the colonists to inhabit and to inherit land in each and all the colonies. They were nothing more than the ordinary rights and liabilities of every British subject; and, indeed, the most that the colonies ever contended for was an equality, in these respects, with the subjects born in England. The facts, therefore, upon which Judge Story's reasoning is founded, spring from a different source from that from which he is compelled to derive them, in order to support his conclusion.
So far as Judge Story's argument is concerned, the subject might be permitted to rest here. Indeed, one would be tempted to think, from the apparent carelessness and indifference with which the argument is urged, that he himself did not attach to it any particular importance. It is not his habit to dismiss grave matters with such light examination, nor does it consist with the character of his mind to be satisfied with reasoning which bears even a doubtful relation to his subject. Neither can it be supposed that he would be willing to rely on the simple ipse dixit of Chief Justice Jay, unsupported by argument, unsustained by any reference to historical facts, and wholly indefinite in extent and bearing. Why, then, was this passage written? As mere history, apart from its bearing on the Constitution of the United States, it is of no value in this work, and is wholly out of place. All doubts upon this subject will be removed in the progress of this examination. The great effort of Judge Story, throughout the entire work, is to establish the doctrine, that the Constitution of the United States is a government of "the people of the United States," as contradistinguished from the people of the several States; or, in other words, that it is a consolidated, and not a federative system. His construction of every contested federal power depends mainly upon this distinction; and hence the necessity of establishing a oneness among the people of the several colonies, prior to the Revolution. It may well excite our surprise, that a proposition so necessary to the principal design of the work, should be stated with so little precision, and dismissed with so little effort to sustain it by argument. One so well informed as Judge Story, of the state of political opinions in this country, could scarcely have supposed that it would be received as an admitted truth, requiring no examination. It enters too deeply into grave questions of Constitutional law, to be so summarily disposed of. We should not be content, therefore, with simply proving that Judge Story has assigned no sufficient reason for the opinion he has advanced. The subject demands of us the still farther proof that his opinion is, in fact, erroneous, and that it cannot be sustained by any other reasons.
In order to constitute "one people," in a political sense, of the inhabitants of different countries, some thing more is necessary than that they should owe a common allegiance to a common sovereign. Neither is it sufficient that, in some particulars, they are bound alike, by laws which that sovereign, may prescribe; nor does the question depend on geographical relations. The inhabitants of different islands may be one people, and those of contiguous countries may be, as we know they in fact are, different nations. By the term "people," as here used, we do not mean merely a number of persons. We mean by it a political corporation, the members of which owe a common allegiance to a common sovereignty, and do not owe any allegiance which is not common; who are bound by no laws except such as that sovereignty may prescribe; who owe to one another reciprocal obligations; who possess common political interests; who are liable to common political duties; and who can exert no sovereign power except in the name of the whole. Anything short of this, would be an imperfect definition of that political corporation which we call a "people."
Tested by this definition, the people of the American colonies were, in no conceivable sense, "one people." They owed, indeed, allegiance to the British King, as the head of each colonial government, and as forming a part thereof; but this allegiance was exclusive, in each colony, to its own government, and, consequently, to the King as the head thereof, and was not a common allegiance of the people of all the colonies, to a common head.2 These colonial governments were clothed with the sovereign power of making laws, and of enforcing obedience to them, from their own people. The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections; no influence nor control in its municipal government; no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever; they were not known as "one people" in any one function of government. Although they were all, alike, dependencies of the British Crown, yet, even in the action of the parent country, in regard to them, they were recognized as separate and distinct. They were established at different times, and each under an authority from the Crown, which applied to itself alone. They were not even alike in their organization. Some were provincial, some proprietary, and some charter governments. Each derived its form of government from the particular instrument establishing it, or from assumptions of power acquiesced in by the Crown, without any connection with, or relation to, any other. They stood upon the same footing, in every respect, with other British colonies, with nothing to distinguish their relation either to the parent country or to one another. The charter of any one of them might have been destroyed, without in any manner affecting the rest. In point of fact, the charters of nearly all of them were altered, from time to time, and the whole character of their government changed. These changes were made in each colony for itself alone, sometimes by its own action, sometimes by the power and authority of the Crown; but never by the joint agency of any other colony, and never with reference to the wishes or demands of any other colony. Thus they were separate and distinct in their creation; separate and distinct in the changes and modifications of their governments, which were made from time to time; separate and distinct in political functions, in political rights, and in political duties.
The provincial government of Virginia was the first established. The people of Virginia owed allegiance to the British King, as the head of their own local government. The authority of that government was confined within certain geographical limits, known as Virginia, and all who lived within those limits were "one people." When the colony of Plymouth was subsequently settled, were the people of that colony "one" with the people of Virginia? When, long afterwards, the proprietary government of Pennsylvania was established, were the followers of William Penn "one" with the people of Plymouth and Virginia? If so, to which government was their allegiance due? Virginia had a government of her own, and Massachusetts a government of her own. The people of Pennsylvania could not be equally bound by the laws of all three governments, because those laws might happen to conflict; they could not owe the duties of citizenship to all of them alike, because they might stand in hostile relations to one another. Either, then, the government of Virginia, which originally extended over the whole territory, continued to be supreme therein, (subject only to its dependence on the British Crown), or else its supremacy was yielded to the new government. Every one knows that this last was the case; that within the territory of the new government the authority of that government alone prevailed. How then could the people of this new government of Pennsylvania be said to be "one" with the people of Virginia, when they were not citizens of Virginia, owed her no allegiance and no duty, and when their allegiance to another government might place them in the relation of enemies of Virginia?3
In farther illustration of this point, let us suppose that some one of the colonies had refused to unite in the Declaration of Independence, what relation would it then have held to the others? Not having disclaimed its allegiance to the British Crown, it would still have continued to be a British colony, subject to the authority of the parent country, in all respects as before. Could the other colonies have rightfully compelled it to unite with them in their revolutionary purposes, on the ground that it was part and parcel of the "one people," known as the people of the colonies? No such right was ever claimed, or dreamed of, and it will scarcely be contended for now, in the face of the known history of the time. Such recusant colony would have stood precisely as did the Canadas, and every other part of the British empire. The colonies, which had declared war, would have considered its people as enemies, but would not have had a right to treat them as traitors, or as disobedient citizens resisting their authority. To what purpose, then, were the people of the colonies "one people," if, in a case so important to the common welfare, there was no right in all the people together, to coerce the members of their own community to the performance of a common duty?
It is thus apparent that the people of the colonies were not "one people," as to any purpose involving allegiance on the one hand, or protection on the other. What, then, I again ask, are the "many purposes" to which Judge Story alludes? It is certainly incumbent on him who asserts this identity, against the inferences most naturally deducible from the historical facts, to show at what time, by what process, and for what purposes, it was effected. He claims too much consideration for his personal authority, when he requires his readers to reject the plain information of history, in favor of his bare assertion. The charters of the colonies prove no identity between them, but the reverse; and it has already been shown that this identity is not the necessary result of their common relation to the mother country. By what other means they came to be "one," in any intelligible and political sense, it remains for Judge Story to explain.
If these views of the subject be not convincing, Judge Story himself has furnished proof, in all needful abundance, of the incorrectness of his own conclusion. He tells us that, "though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connection with each other. Each was independent of all the others; each, in a limited sense, was sovereign within its own territory. There was neither alliance nor confederacy between them. The assembly of one province could not make laws for another, nor confer privileges which were to be enjoyed or exercised in another, farther than they could be in any independent foreign States. They were known only as dependencies, and they followed the fate of the parent country, both in peace and war, without having assigned to them, in the intercourse or diplomacy of nations, any distinct or independent existence. They did not possess the power of forming any league or treaty among themselves, which would acquire an obligatory force, without the assent of the parent State. And though their mutual wants and necessities often induced them to associate for common purposes of defense, these confederacies were of a casual and temporary nature, and were allowed as an indulgence, rather than as a right. They made several efforts to procure the establishment of some general superintending government over them all; but their own difference of opinion, as well as the jealousy of the Crown, made these efforts abortive."
The English language affords no terms stronger than those which are here used to convey the idea of separateness, distinctness, and independence, among the colonies. No commentary could make the description plainer, or more full and complete. The unity, contended for by Judge Story, nowhere appears, but is distinctly disaffirmed in every sentence. The colonies were not only distinct in their creation, and in the powers and faculties of their governments, but there was not even "an alliance or confederacy between them." They had "no general superintending government over them all," and tried in vain to establish one. Each was "independent of all the others," having its own legislature, and without power to confer either right or privilege beyond its own territory. "Each, in a limited sense, was sovereign within its own territory"; and to sum up all, in a single sentence, "they had no direct political connection with each other!" The condition of the colonies was, indeed, anomalous, if Judge Story's view of it be correct. They presented the singular spectacle of "one people," or political corporation, the members of which had "no direct political connection with each other," and who had not the power to form such connection, even "by league or treaty among themselves."
This brief review will, it is believed, be sufficient to convince the reader that Judge Story has greatly mistaken the real condition and relation of the colonies, in supposing that they formed "one people," in any sense, or for any purpose whatever. He is entitled to credit, however, for the candor with which he has stated the historical facts. Apart from all other sources of information, his book affords to every reader abundant materials for the formation of his own opinion, and for enabling him to decide satisfactorily whether Judge Story's inferences from the facts, which he himself has stated, be warranted by them or not.
CHAPTER III.
RELATION OF THE COLONIES TO EACH OTHER DURING THE REVOLUTION —
THEY WERE NOT THEN ONE PEOPLE.In the execution of the second division of his plan, very little was required of Judge Story, either as a historian or a commentator. Accordingly, he has alluded but slightly to the condition of the colonies during the existence of the revolutionary government, and has sketched with great rapidity, yet sufficiently in detail, the rise, decline and fall of the Confederation. Even here, however, he has fallen into some errors, and has ventured to express decisive and important opinions, without due warrant. The desire to make "the people of the United States" one consolidated nation is so strong and predominant, that it breaks forth, often uncalled for, in every part of his work. He tells us that the first Congress of the Revolution was "a general or a national government"; that it "was organized under the auspices and with the consent of the people, acting directly in their primary sovereign capacity," and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies. He acknowledges that the powers of this Congress were but ill-defined; that many of them were exercised by mere usurpation, and were acquiesced in by the people, only from the confidence reposed in the wisdom and patriotism of its members, and because there was no proper opportunity, during the presence of the war, to raise nice questions of the powers of government. And yet he infers, from the exercise of powers thus ill-defined, and, in great part, usurped, that "from the moment of the Declaration of Independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto," &c.
A very slight attention to the history of the times will place this subject in its true light. The colonies complained of oppressions from the mother country, and were anxious to devise some means by which their grievances might be redressed. These grievances were common to all of them; for England made no discrimination between them in the general course of her colonial policy. Their rights, as British subjects, had never been well defined; and some of the most important of these rights, as asserted by themselves, had been denied by the British Crown. As early as 1765 a majority of the colonies had met together in congress, or convention, in New York, for the purpose of deliberating on these grave matters of common concern and they then made a formal declaration of what they considered their rights, as colonists and British subjects. This measure, however, led to no redress of their grievances. On the contrary, the subsequent measures of the British Government gave new and just causes of complaint; so that, in 1774, it was deemed necessary that the colonies should again meet together, in order to consult upon their general condition, and provide for the safety of their common rights. Hence the Congress which met at Carpenters' Hall, in Philadelphia, on the 5th of September, 1774. It consisted of delegates from New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut from the city and county of New York, and other counties in the province of New York, New Jersey, Pennsylvania, New Castle, Kent, and Sussex in Delaware, Maryland, Virginia, and South Carolina. North Carolina was not represented until the 14th September, and Georgia not at all. It is also apparent that New York was not represented as a colony, but only through certain portions of her people;4 in like manner, Lyman Hall was admitted to his seat, in the succeeding Congress, as a delegate from the parish of St. John's, in Georgia, although he declined to vote on any question requiring a majority of the colonies to carry it, because he was not the representative of a colony. This Congress passed a variety of important resolutions, between September, 1774, and the 22nd October, in the same year; during all which time Georgia was not represented at all; for even the parish of St. John's did not appoint a representative till May, 1775. In point of fact, the Congress was a deliberative and advisory body, and nothing more; and, for this reason, it was not deemed important, or, at least, not indispensable, that all the colonies should be represented, since the resolutions of Congress had no obligatory force whatever. It was appointed for the sole purpose of taking into consideration the general condition of the colonies, and of devising and recommending proper measures for the security of their rights and interests. For these objects no precise powers and instructions were necessary, and beyond them none were given. Neither does it appear that any precise time was assigned for the duration of Congress. The duty with which it was charged was extremely simple; and it was taken for granted that it would dissolve itself as soon as the duty should be performed.5
It is perfectly apparent that the mere appointment of this Congress did not make the people of all the colonies "one people," nor a "nation de facto." All the colonies did not unite in the appointment, neither as colonies nor by any portion of their people acting in their primary assemblies, as has already been shown. The colonies were not independent, and had not even resolved to declare themselves so at any future time. On the contrary, they were extremely desirous to preserve and continue their connection with the parent country, and Congress was charged with the duty of devising such measures as would enable them to do so, without involving a surrender of their rights as British subjects. It is equally clear that the powers, with which Congress was clothed, did not flow from, nor constitute "one people," or "nation de facto," and that that body was not "a general or national government," nor a government of any kind what ever. The existence of such government was absolutely inconsistent with the allegiance which the colonies still acknowledged to the British Crown. Judge Story, himself informs us, in a passage already quoted, that they had no power to form such government, nor to enter into "any league or treaty among themselves." Indeed, Congress did not claim any legislative power whatever, nor could it have done so consistently with the political relations which the colonies still acknowledged and desired to preserve. Its acts were in the form of resolutions, and not in the form of laws; it recommended to its constituents whatever it believed to be for their advantage, but it commanded nothing. Each colony, and the people thereof, were at perfect liberty to act upon such recommendation or not, as they might think proper.6
On the 22nd October, 1774, this Congress dissolved itself, having recommended to the several colonies to appoint delegates to another Congress, to be held in Philadelphia in the following May. Accordingly delegates were chosen, as they had been chosen to the preceding Congress, each colony and the people thereof acting for themselves, and by themselves; and the delegates thus chosen were clothed with substantially the same powers, for precisely the same objects, as in the former Congress. Indeed, it could not have been otherwise; for the relations of the colonies were still unchanged, and any measure establishing "a general or national government," or uniting the colonies so as to constitute them "a nation de facto," would have been an act of open rebellion, and would have severed at once all the ties which bound them to the mother country, and which they were still anxious to preserve. New York was represented in this Congress precisely as she had been in the former one, that is, by delegates chosen by a part of her people; for the royal party was so strong in that colony, that it would have been impossible to obtain from the legislature an expression of approbation of any measure of resistance to British authority. The accession of Georgia to the general association was not made known till the 20th of July, and her delegates did not take their seats till the 13th of September. In the meantime Congress had proceeded in the discharge of its duties, and some of its most important acts, and among the rest the appointment of a commander-in-chief of their armies, were performed while these two colonies were unrepresented. Its acts, like those of the former Congress, were in the form of resolution and recommendation; for as it still held out the hope of reconciliation with the parent country, it did not venture to assume the function of authoritative legislation. It continued to hold this attitude and to act in this mode till the 4th of July, 1776, when it declared that the colonies there represented (including New York, which had acceded after the Battle of Lexington), were, and of right ought to be, free and independent States.7
It is to be remarked, that no new powers were conferred on Congress after the Declaration of Independence. Strictly speaking, they had no authority to make that Declaration. They were not appointed for any such purpose, but precisely the reverse; and although some of them were expressly authorized to agree to it, yet others were not. Indeed, we are informed by Mr. Jefferson, that the Declaration was opposed by some of the firmest patriots of the body, and among the rest, by R. R. Livingston, Dickenson, Wilson, and E. Rutlege, on the ground that it was premature; that the people of New York, New Jersey, Maryland and Delaware were not yet ripe for it, but would soon unite with the rest, if not indiscreetly urged. In entering upon so bold a step, Congress acted precisely as they did in all other cases, in the name of the States whose representatives they were, and with a full reliance that those States would confirm whatever they might do for the general good. They were, strictly, agents or ministers of independent States, acting each under the authority and instructions of his own, State, and having no power whatever, except what these instructions conferred. The States themselves were not bound by the resolves of Congress, except so far as they respectively authorized their own delegates to bind them. There was no original grant of powers to that body, except for deliberation and advisement; there was no constitution, no law, no agreement, to which they could refer, in order to ascertain the extent of their powers. The members did not all act under the same instructions, nor with the same extent of authority. The different States gave different instructions, each according to its own views of right and policy, and without reference to any general scheme to which they were all bound to conform. Congress had in fact no power of government at all, nor had it that character of permanency which is implied in the idea of government. It could not pass an obligatory law, nor devise an obligatory sanction, by virtue of any inherent power in itself. It was, as already remarked, precisely the same body after the Declaration of Independence as before. As it was not then a government, and could not establish any new or valid relations between the colonies, so long as they acknowledged themselves dependencies of the British Crown, they certainly could not do so after the Declaration of Independence, without some new grant of power. The dependent colonies had then become independent States; their political condition and relations were necessarily changed by that circumstance; the deliberative and advisory body, through whom they had consulted together as colonies, was functus officio; the authority which appointed them had ceased to exist, or was suspended by a higher authority. Everything which they did, after this period and before the Articles of Confederation, was without any other right or authority than what was derived from the mere consent and acquiescence of the several States. In the ordinary business of that government de facto, which the occasion had called into existence, they did whatever the public interest seemed to require, upon the secure reliance that their acts would be approved and confirmed. In other cases, however, they called for specific grants of power; and in such cases, each representative applied to his own State alone, and not to any other State or people. Indeed, as they were called into existence by the colonies in 1775, and as they continued in existence, without any new election or new grant of power, it is difficult to perceive how they could form a "general or national government, organized by the people." They were elected by subjects of the King of England; subjects who had no right, as they themselves admitted, to establish any government whatever; and when those subjects became citizens of independent States, they gave no instructions to establish any such government. The government exercised was, as already remarked, merely a government de facto, and no farther de jure than the subsequent approval of its acts by the several States made it so.
This brief review will enable us to determine how far Judge Story is supported in the inferences he has drawn, in the passages last quoted. We have reason to regret that in these, as in many others, he has not been sufficiently specific, either in stating his proposition or in citing his proof. To what people does he allude, when he tells us that the "first general or national government" was organized "by the people?"
The first and every recommendation to send deputies to a general Congress was addressed to the colonies as such; in the choice of those deputies each colony acted for itself, without mingling in any way with the people or government of any other colony; and when the deputies met in Congress, they voted on all questions of public and general concern by colonies, each colony having one vote, whatever was its population or number of deputies. If, then, this government was organized by "the people" at all, it was clearly the people of the several colonies, and not the joint people of all the colonies. And where is Judge Story's warrant for the assertion, that they acted "directly in their primary sovereign capacity, and without the intervention of the functionaries, to whom the ordinary powers of government were delegated in the colonies"? He is in most respects a close follower of Marshall, and he could scarcely have failed to see the following passage, which is found in a note in the 168th page of the second volume of the Life of Washington. Speaking of the Congress of 1774, Marshall says: "The members of this Congress were generally elected by the authority of the colonial legislatures, but in some instances a different system had been pursued. In New Jersey and Maryland the elections were made by committees chosen in the several counties for that particular purpose; and in New York, where the royal party was very strong, and where it is probable that no legislative act, authorizing an election of members to represent that colony in Congress, could have been obtained, the people themselves assembled in those places, where the spirit of opposition to the claim of Parliament prevailed, and elected deputies, who were very readily received into Congress," Here the general rule is stated to be, that the deputies were elected by the "colonial legislatures," and the instances in which the people acted "directly in their primary, sovereign capacity, without the intervention of the ordinary functionaries of government," are given as exceptions. And even in those cases, in which delegates were appointed by conventions of the people, it was deemed necessary in many instances, as we have already seen, that the appointment should be approved and confirmed by the ordinary legislature, As to New York, neither her people nor her government had so far lost their attachment to the mother country as to concur any measure of opposition until after the battle of Lexington in April, 1775; and, the only representatives which New York had in the Congress of 1774 were those of a comparatively small portion of her people. It is well known — and, indeed, Judge Story himself so informs us — that the members of the Congress of 1775 were elected substantially as were those of the preceding Congress; so that there were very few of the colonies, in which the people performed that act in their "primary, sovereign capacity," without the intervention of their constituted authorities. It is of little consequence, however, to the present inquiry whether the deputies were chosen by the colonial legislatures, as was done in most of the colonies, or by conventions, as was done in Georgia and some others, or by committees appointed for the purpose, as was done in one or two instances, or by the people in primary assemblies, as was done in part of New York. All these modes were resorted to, according as the one or the other appeared most convenient or proper in each particular case. But, whichever mode was adopted, the members were chosen by each colony in and for itself, and were the representatives of that colony alone, and not of any other colony, or any nation de facto or de jure. The assertion, therefore, that "the Congress thus assembled exercised de facto and de jure a sovereign authority, not as the delegated agents of the government de facto of the colonies, but in virtue of the original powers derived from the people," is, to say the least of it, very bold, in one who had undoubtedly explored all the sources of information upon the subject. Until the adoption of the Articles of Confederation, Congress had no "original powers," except only for deliberation and advisement, and claimed no "sovereign authority " whatever. It was an occasional, and not a permanent body, or one renewable from time to time. Although they did, in many instances, "exercise de facto" a power of legislation to a certain extent, yet they never held that power "de jure," by any grant from the colonies or the people; and the acts became valid only by subsequent confirmation of them, and not because they had any delegated authority to perform them. The whole history of the period proves this, and not a single instance can be cited to the contrary. The course of the revolutionary government throughout attests the fact, that, however the people may have occasionally acted, in pressing emergencies, without the intervention of the authorities of their respective colonial governments, they never lost sight of the fact that they were citizens of separate colonies, and never, even impliedly, surrendered that character, or acknowledged a different allegiance. In all the acts of Congress, reference was had to the colonies, and never to the people. That body had no power to act directly upon the people, and could not execute its own resolves as to most purposes, except by the aid and intervention of the colonial authorities. Its measures were adopted by the votes of the colonies as such, and not by the rule, of mere numerical majority. Which prevails in every legislative assembly of an entire nation. This fact alone is decisive to prove, that the members were not the representatives of the people of all the colonies, for the judgment of each colony was pronounced by its own members only, and no others had any right to mingle in their deliberations. What, then, was this "sovereign authority?" What was the nature, what the extent of its "original powers?" From what "people" were these powers derived? I look in vain for answers to these questions to any historical record which has yet met my view, and have only to regret that Judge Story has not directed me to better guides.
CHAPTER IV.
THE NATURE AND EXTENT OF POWERS EXERCISED BY THE
REVOLUTIONARY GOVERNMENT DID NOT MAKE THE COLONIES ONE PEOPLE.Judge Story's conclusion is not better sustained by the nature and extent of the powers exercised by the revolutionary government. It has already been stated, that no original powers of legislation were granted to the Congresses of 1774 and 1775; and it is only from their acts that we can determine what powers they actually exercised. The circumstances under which they were called into existence precluded the possibility of any precise limitations of their powers, even if it had been designed to clothe them with the functions of government. The colonies were suffering under common oppressions, and were threatened with common dangers, from the mother country. The great object which they had in view was to produce that concert of action among themselves which would best enable them to resist their common enemy, and best secure the safety and liberties of all. Great confidence must necessarily be reposed in public rulers under circumstances of this sort. We may well suppose, therefore, that the revolutionary government exercised every power which appeared to be necessary for the successful prosecution of the great contest in which they were engaged; and we may, with equal propriety, suppose that neither the people nor the colonial governments felt any disposition to scrutinize very narrowly any measure which promised protection and safety to themselves. They knew that the government was temporary only; that it was permitted only for a particular and temporary object, and that they could at any time recall any and every power which it had assumed. It would be a violent and forced inference, from the powers of such an agency, (for was not a government, although I have sometimes, for convenience, called it so), however great they might be, to say that the people, or States, which established it, meant thereby to me their distinctive character, to merge their distinctive character, to surrender all the rights and privileges which belonged to them as separate communities, and to consolidate themselves into one nation.
In point of fact, however, there was nothing in the powers, exercised by the revolutionary government, so far as they can be known from their acts, inconsistent with the perfect sovereignty and independence of the States. These were always admitted in terms, and were never denied in practice. So far as external relations were concerned, Congress seems to have exercised every power of a supreme government. They assumed the right to "declare war and to make peace; to authorize captures; to institute appellate prize courts; to direct and control all national military and naval operations; to form alliances and make treaties; to contract debts and issue bills of credit on national account." These powers were not "exclusive," however, as our author supposes. On the contrary, troops were raised, vessels of war were commissioned, and various military operations were conducted by the colonies, on their own separate means and authority. Ticonderoga was taken by the troops of Connecticut before the Declaration of Independence; Massachusetts and Connecticut fitted out armed vessels to cruise against those of England, in October, 1775; South Carolina soon followed their example. In 1776, New Hampshire authorized her executive to issue letters of marque and reprisal.
These instances are selected out of many, as sufficient to show that in the conduct of the war Congress possessed no "exclusive" power, and the colonies (or States) retained, and actually asserted, their own sovereign right and power as to that matter. And not as to that matter alone, for New Hampshire established post offices. The words of our author may, indeed, import that the power of Congress over the subject of war was "exclusive" only as to such military and naval operations as he considers national, that is, such as were undertaken by the joint power of all the colonies; and, if so, he is correct. But the comma after the word "national " suggests a different interpretation. At all events, the facts which I have mentioned prove that Congress exercised no power which was considered as abridging the absolute sovereignty and independence of the States.
Many of those powers which, for greater convenience, were entrusted exclusively to Congress, could not be effectually exerted except by the aid of the State authorities. The troops required by Congress were raised by the States, and the commissions of their officers were countersigned by the Governors of the States. Congress were allowed to issue bills of credit, but they could not make them a legal tender, nor punish the counterfeiter of them. Neither could they bind the States to redeem them, nor raise by their own authority the necessary funds for the purpose. Congress received ambassadors and other public ministers, yet they had no power to extend to them that protection which they receive from the government of every foreign nation. A man by the name of De Longchamps entered the house of the French Minister Plenipotentiary in Philadelphia, and there threatened violence to the person of Francis Barbe Marboise, Secretary of the French Legation, Consul General of France, and Consul for the State of Pennsylvania; he afterwards assaulted and beat him in the public street. For this offence, he was indicted and tried in the Court of Oyer and Terminer of Philadelphia, and punished under its sentence. The case turned chiefly upon the law of nations, with reference to the protection which it affords to foreign ministers. A question was made, whether the authorities of Pennsylvania should not deliver up De Langechamps to the French Government, to be dealt with at their pleasure. It does not appear that the Federal Government was considered to possess any power over the subject, or that it was deemed proper to invoke its counsel or authority in any form. This case occurred in 1784, after the adoption of the Articles of Confederation; but if the powers of the Federal Government were less under those articles than before, it only proves that, however great its previous powers may have been, they were held at the will of the States, and were actually recalled by the Articles of Confederation. Thus it appears that, in the important functions of raising an army, of providing a public revenue, of paying public debts, and giving security to the persons of foreign ministers, the boasted "sovereignty" of the Federal Government was merely nominal, and owed its entire efficiency to the co-operation and aid of the State governments. Congress had no power to coerce these governments; nor could it exercise any direct authority over their individual citizens.
Although the powers actually assumed and exercised by Congress were certainly very great, they were not always acquiesced in, or allowed, by the States. Thus, the power to lay an embargo was earnestly desired by them, but was denied by the States. And in order the more clearly to indicate that many of their powers were exercised merely by sufferance, and at the same time to lend a sanction to their authority so far as they chose to allow it, it was deemed necessary, by at least one of the States, to pass laws indemnifying those who might act in obedience to the resolutions of that body.8
A conclusive proof, however, of the true relation which the colonies hold to the revolutionary government, even in the opinion of Congress itself, is furnished by their own journals. In June, 1776, that body recommended the passing of laws for the punishment of treason; and they declare that the crime shall be considered as committed against the colonies individually, and not against them all, as united or confederated together. This could scarcely have been so, if they had considered themselves "a government de facto and de jure," clothed with "sovereign authority." The author, however, is not satisfied to rest his opinion upon historical facts; he seeks also to fortify himself by a judicial decision. He informs us that, "soon after the organization of the present government, the question [of the powers of the Continental Congress] was most elaborately discussed before the Supreme Court of the United States, in a case calling for an exposition of the appellate jurisdiction of Congress in prize causes, before the ratification of the Confederation. The result of that examination was, that Congress, before the Confederation, possessed, by the consent of the people of the United States, sovereign and supreme powers for national purposes; and, among others, the supreme powers of peace and war, and, as an incident, the right of entertaining appeals in the last resort, in prize causes, even in opposition to State legislation. And that the actual powers exercised by Congress, in respect to national objects, furnished the best exposition of its constitutional authority, since they emanated from the people, and were acquiesced in by the people."
There is in this passage great want of accuracy, and perhaps some want of candor. The author, as usual, neglects to cite the judicial decision to which he alludes, but it must be the case of Penhallow and others against Doane's administrators. (3 Dallas' Reports, 54.) Congress, in November, 1775, passed a resolution, recommending to the several colonies to establish prize courts, with a right of appeal from their decisions to Congress. In 1776, New Hampshire accordingly passed a law upon the subject, by which an appeal to Congress was allowed in cases of capture by vessels in the service of the united colonies; but where the capture was made by "a vessel in the service of the united colonies and of any particular colony or person together," the appeal was allowed to the Superior Court of New Hampshire. The brigantine Susanna was captured by a vessel owned and commanded by citizens of New Hampshire, and was duly condemned as prize by her own Court of Admiralty. An appeal was prayed to Congress and denied; and thereupon an appeal to the Superior Court of New Hampshire was prayed and allowed. From the decision of this Court an appeal was taken to Congress, in the mode prescribed by their resolution, and the case was disposed of by the Court of Appeals, appointed by Congress to take cognizance of such cases. After the adoption of the present Constitution and the organization of the judiciary system under it, a libel was filed in the District Court of New Hampshire, to carry into effect the sentence of the Court of Appeals above mentioned. The cause being legally transferred to the Circuit Court, was decided there, and an appeal allowed to the Supreme Court. That Court, in its decision, sustains the jurisdiction of the Court of Appeals established by Congress. Mr. Justice Patterson's opinion is founded mainly upon these grounds: That the powers actually exercised by Congress ought to be considered as legitimate, because they were such as the occasion absolutely required, and were approved and acquiesced in by "the people"; that the authority ultimately and finally to decide on all matters and questions touching the law of nations, does reside and is vested in the sovereign, supreme power of war and peace; that this power was lodged in the Continental Congress by the consent and acquiescence of "the people"; that the legality of all captures on the high seas must be determined by the law of nations; that New Hampshire had committed herself upon this subject, by voting in favor of the exercise of the same power by Congress in the case of the brig Active; and as the commission, under which the capture in the case under consideration was made, was issued by Congress, it resulted, of necessity, that the validity of all captures made by virtue of that commission, should be judged of by Congress, or its constituted authority, because "every one must be amenable to the authority under which he acts." It is evident that this opinion, while it sustains the authority of Congress in the particular case, does not prove its general supremacy, nor that the States had surrendered to it any part of their sovereignty and independence. On the contrary, it affirms that the "sovereign and supreme power of war and peace" was assumed by Congress, and that the exercise of it became legitimate, only because it was approved and acquiesced in; and that thus legitimated, the appellate jurisdiction in prize cases followed as a necessary incident. All the powers, which Patterson contends for as exercised by Congress, may all be conceded, without in the slightest degree affecting the question before us; they were as consistent with the character of a federative, as with that of a consolidated government. He does not tell us to what people he alludes, when he says the powers exercised by Congress were approved and ratified by "the people." He does not, in any part of his opinion, authorize the idea of the author, that "Congress possessed, before the Confederation, by the consent of the people of the United States, sovereign and supreme powers for national purposes." On the contrary, as to one of these powers, he holds the opposite language; and, therefore, it is fair to presume, that he intended to be so understood in regard to all the rest. This is his language: "The authority exercised by Congress, in granting commissions to privateers, was approved and ratified by the several colonies or States, because they received and filled up the commissions and bonds, and returned the latter to Congress." This approval and ratification alone rendered, in his opinion, the exercise of this, and other similar powers assumed by Congress, legitimate.
Judge Iredell, in delivering his opinion, goes much more fully into the examination of the powers of the revolutionary government. He thinks that, as the power of peace and war was entrusted to Congress, they held, as a necessary incident, the power to establish prize courts; and that whatever powers they did in fact exercise, were acquiesced in and consented to, and, consequently, legitimated and confirmed. But he leaves no room to doubt as to the source whence this confirmation was derived. After proving that the several colonies were, to all intents and purposes, separate and distinct, and that they did not form "one people" in any sense of the term, he says: "If Congress, previous to the Articles of Confederation, possessed any authority, it was an authority, as I have shown, derived from the people of each province, in the first instance." "The authority was not possessed by Congress, unless given by all the States." "I conclude, therefore, that every particle of authority, which originally resided either in Congress or in any branch of the State governments, was derived from the people who were permanent inhabitants of each province, in the first instance, and afterwards became citizens of each State; that this authority was conveyed by each body separately, and not by all the people in the several provinces or States jointly." No language could be stronger than this, to disarm Judge Story's conclusion, that the powers exercised by Congress were exercised "by the consent of the people of the United States." Certainly, Iredell did not think so.
The other two Judges, Blair and Cushing, affirm the general propositions upon which Patterson and Iredell sustained the power of Congress in the particular case, but lend us no support to the idea of any such unity among the people of the several colonies or States, as our author supposes to have existed. Cushing, without formally discussing the question, expressly says that "he has no doubt of the sovereignty of the States."'
This decision, then, merely affirms, what no one has ever thought of denying, that the revolutionary government exercised every power which the occasion required; that, among these, the powers of peace and war were most important, because Congress, alone, represented all the colonies, and could, alone, express the general will, and wield the general strength; that wherever the powers of peace and war are lodged, belongs also the right to decide all questions touching the laws of nations; that prize causes are of this character; and, finally, that all these powers were not derived from any original grant, but are to be considered as belonging to Congress, merely because Congress exercised them, and because they were sustained in so doing by the approbation of the several colonies or States, whose representatives they were. Surely, then, our author was neither very accurate nor very candid in so stating this decision as to give rise to the idea that, in the opinion of the Supreme Court, Congress possessed original sovereign powers, by the consent of "the people of the United States." Even, however, if they court had so decided, in express terms, it would have been of no value in the present inquiry, as will by-and-by be shown.
The examination of this part of the subject has probably already been drawn out to too great an extent; but it would not be complete without some notice of another ground, upon which our author rests his favorite idea — that the people of the colonies formed, "one people," or nation. Even if this unity was not produced by the appointment of the revolutionary government, or by the nature of the powers exercised by them, and acquiesced in by the people, he thinks there can be no doubt that this was the necessary result of the Declaration of independence. In order that he may be fully understood upon this point, I will transcribe the entire passage relating to it: "In the next place, the colonies did not severally act for themselves, and proclaim their own independence.9 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 new 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 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 of 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." The first question which this passage naturally suggests to the mind of the reader is this: if two or more nations of people, confessedly separate, distinct and independent, each having its own peculiar government, without any "direct political connection with each other," yet owing the same allegiance to one common superior, should unite in a declaration of rights which they believed belonged to all of them all, would that circumstance alone make them "one people?" Stripped of the circumstances with which Judge Story has surrounded it, this is, at last, the only proposition involved. If Spain, Naples, and Holland, while they were "dependencies" of the Imperial Crown of France, had united in declaring that they were oppressed, in the same mode and degree, by the measures of that Crown, and that they did, for that reason, disdain all allegiance to it, and assume the station of "free and independent States," would they thereby have become one people? Barely this will not be asserted by any one. We should see, in that act, nothing more than the union of several independent sovereignties, for the purpose of effecting a common object, which each felt itself too weak to effect alone. Nothing would be more natural, than that nations so situated should establish a common military power, a common treasury, and a common agency, through which, to carry on their intercourse with other powers; but that all this should unite them together, so as to form them into one nation, is a consequence not readily perceived. The case here supposed is precisely that of the American colonies, if those colonies were, in point of, fact, separate, distinct, and independent of one another. If they were so, (and I think it has been shown that they were), then the fact that they united in the Declaration of Independence does not make them "one people" any more than a similar declaration would have made Spain, Naples and Holland one people; if they were not so, then they were one people already, and the Declaration of Independence did not render them more or less identical. It is true, the analogy here supposed does not hold in every particular; the relations of the colonies to one another were certainly closer, in many respects, than those of Spain, Naples and Holland, to one another. But as to all purposes involved in the present inquiry, the analogy is perfect. The effect attributed to the Declaration of Independence presupposes that the colonies were not "one people" before; an effect which is in no manner changed or modified by any other circumstance in their relation to one another. That fact, alone, is necessary to be inquired into; and until that fact is ascertained, the author's reasoning as to the effect of the Declaration of Independence, in making them "one people," does not apply. He is obliged, therefore, to abandon the ground previously taken, to wit: that the colonies were one people before the Declaration of Independence. And having abandoned it, he places the colonies, as this question, upon the footing of any other separate and distinct nations; and, as to these, it is quite evident that the conclusion which he has drawn, in the case of the colonies, could not be correct, unless it would be equally correct in the case of Spain, Naples and Holland, above supposed.
CHAPTER V.
THE DECLARATION OF INDEPENDENCE DID NOT CONSOLIDATE
THE COLONIES INTO ONE PEOPLE.The mere fact, then, that the colonies united in the Declaration of Independence, did not necessarily make them one people. But it may be said that this fact ought, at least, to be received as proof that they considered themselves as one people already. The argument is fair, and freely let it go for what it is worth. The opinion of the Congress of 1775, whatever it may have been, and however strongly expressed, could not possibly change the historical facts. It depended upon those facts, alone, whether the colonies were one people or not. They might by their agreement, expressed through their agents in Congress, make themselves one people through all time to come; but their power, as to this matter, could not extend to the time past. Indeed, it is contended, not only by Judge Story, but by others, that the colonies did, by and in that act, agree, to become "one people" for the future. They suppose that such agreement is implied, if not expressed, in the following passages: "We, therefore, the representatives of the United States of America," "do, in the name and by the authority of the good people of these colonies, solemnly publish and declare that these united colonies are, and of right ought to be, free and independent States." Let us test the correctness of this opinion, by the history of the time, and by the rules of fair criticism.
The Congress of 1775, by which independence was declared, was appointed, as has been before shown, by the colonies in their separate and distinct capacity, each acting for itself, and not conjointly with any other. They were the representatives each of his own colony, and not of any other; each had authority to act in the name of his own colony, and not in that of any other; each colony gave its own vote by its own representatives, and not by those of any other colony. Of course, it was as separate and distinct colonies that they deliberated on the Declaration of Independence. When, therefore, they declare, in the adoption of that measure, that they act as "the representatives of the United States of America," and "in the name and by the authority of the good people of these colonies," they must of course be understood as speaking in the character in which they had all along acted; that is, as the representatives of separate and distinct colonies, and not as the joint representatives of any one people. A decisive proof of this is found in the fact that the colonies voted on the adoption of that measure in their separate character, each giving one vote by all its own representatives, who acted in strict obedience to specific instructions from their respective colonies, and the members signed the Declaration in that way. So, also, when they declared that "these united colonies are, and of right ought to be, free and independent States," they meant only that their respective communities, which until then had been dependent colonies, should thereafter be independent States, and that the same union, which existed between them as colonies, should be continued between them as States. The measure under consideration looked only to their relation to the mother country, and not to their relation to one another; and the sole question before them was, whether they should continue in a state of dependence on the British Crown or not. Having determined that they would not, they from that moment ceased to be colonies, and became States; united, precisely as before, for the common purpose of achieving their common liberty. The idea of forming a closer union, by the mere act of declaring themselves independent, could scarcely have occurred to any one of them. The necessity of such a measure must be apparent to all, and it had long before engaged their attention in a different form. Men, of their wisdom and forecast, meditating a measure so necessary to their common safety, would not have left it as a mere matter of inference from another measure in point of fact, it was already before them, in the form of a distinct proposition, and had been so ever since their first meeting in May, 1775,10 it is impossible to suppose, therefore, in common justice to the sagacity of Congress, that they meant anything more by the Declaration of Independence, than simply to sever the tie which had theretofore bound them to England, and to assert the rights of the separate and distinct colonies, as separate and independent States particularly as the language which they use is fairly susceptible of this construction. The instrument itself is entitled, "The Unanimous Declaration of the Thirteen United States of America"; of States, separate and distinct bodies politic, and not of "one people" or nation, composed of all of them together; "united," as independent States may be, by compact or agreement, and not amalgamated, as they would be, if they formed one nation or body politic.
Is it true, then, as Judge Story supposes, that "the colonies did not severally act for themselves, and proclaim their own independence?" It is true that they acted together; but is it not equally true that each acted for itself alone, without pretending to any right or authority to bind any other? Their declaration was simply their joint expression of their separate wills; each expressing its own will, and not that of any other; each bound by its own act, and not responsible for the act of any other. If the colonies had severally declare their independence through their own legislatures, and had afterwards agreed to unite their forces together to make a common cause of their contest, and to submit their common interests to the management of a common council chosen by themselves, wherein would their situation have been different? And is it true that this Declaration of Independence "was not an act done by the State governments then organized, nor by persons chosen by them?" that "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?" What representatives were those that were chosen by "the people of the united colonies?" When and how were they chosen? Those who declared the colonies independent, were chosen more than a year before that event; they were chosen by the colonies separately, and, as has already been shown, through the instrumentality of their own "governments then organized"; they were chosen, not for the "purpose" of declaring the colonies independent, but of protecting them against oppression, and bringing about a reconciliation with the parent country, upon fair terms, if possible. (Jefferson's Notes, 1st ed., 128, 129.) If there were any other representatives than those concerned in the Declaration of Independence, if that act was performed by representatives chosen by the whole people of the colonies, for that or any other purpose, if any such representatives could possibly have been chosen by the colonies as then organized, no historical record, that has yet met my view, contains one syllable of the matter.
The author seems to attach but little importance to the fact, that several of the colonies had established separate governments for themselves, prior to the Declaration of Independence. He regards this as of little consequence; because he thinks that the colonies so acted only in pursuance of the recommendation of Congress, and would not have "presumed" to do it, "without consulting Congress upon the subject"; and because the governments so established were, for the most part, designed to be temporary, and to continue only during the contest with England. Such recommendation was given in express terms, to New Hampshire and South Carolina, in November, 1775, and to Virginia in December of that year; and on the 10th May, 1776, "it was resolved to recommend to the respective, assemblies and conventions of the united colonies where no government sufficient to the exigencies of their affairs had been established, to adopt such a government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their Constituents in particular, and of America in general." The preamble to this resolution was not adopted till, the 15th May. (1 Elliott's Debates, 80, 83.) It is evident from the language here employed, that Congress had no power over the colonies as to this matter, and no right to influence or control them in the exercise of the important function of forming their own governments. It recommended only; and contemplating the colonies as separate and distinct, referred it to the assembly or convention of each, to establish any form of government which might be acceptable to its own people. Of what consequence was it whether the colonies noted upon the recommendation and advice of others, or merely upon their own will and counsels? With whatever motive the act was performed, it was one of supreme and sovereign power, and such as could not have been performed except by a sovereign people. And whether the government so established was intended to last forever, or only for a limited time, did not affect its character as an act of sovereign power. In point of fact, then, the colonies which established such governments did, by that very act, assert their sovereignty and independence. They had no power under their charters, to change their governments. They could do so only by setting their charters aside, and acting upon their inherent, sovereign right: and this was revolution. In effect, therefore, many of the colonies had declared their independence prior to the 4th July, 1776; they had commenced the revolution, and were considered by England as in a state of rebellion. Of Virginia this is emphatically true. Her declaration of rights was made on the 12th of June, 1776; and her Constitution was adopted on the 28th of the same month. This Constitution continued until 1829. Her subsequent declaration of independence, on the 4th of July, in common with the other colonies, was but a more public, though not a more solemn affirmation of what she had previously done; a pledge to the whole world, that what she had resolved on in her separate character, she would unite with the other colonies in performing. She could not declare herself free and independent more distinctly, in that form, than she had already done, by asserting her sovereign and irresponsible power, in throwing off her former government, and establishing a new one for herself.11
There is yet another view of this subject, which cannot be properly omitted. It has already been shown that, prior to the Revolution, the colonies were separate and distinct, and were not, in any political sense, or for any purpose of government, "one people." The sovereignty over them was in the British Crown; but that sovereignty was not jointly over all, but separately over each, and might have been abandoned as to some, and retained so to others. The Declaration of Independence broke this connection. By that act, and not by the subsequent recognition of their independence, the colonies became free States. What then became of the sovereignty of which we speak? It could not be in abeyance; the moment it was lost by the British Crown, it must have vested somewhere else. Doubtless it vested in the States themselves. But, as they were separate and distinct as colonies, the sovereignty over one could not vest, either in whole or in part, in any other. Each took to itself that sovereignty which applied to itself, and for which alone it had contended with the British Crown, to wit: the sovereignty over itself. Thus each colony became a free and sovereign State. This is the character which they claim in the very terms of the Declaration of Independence; in this character they formed the Colonial Government, and in this character that government always regarded them. Indeed, even in the earlier treaties with foreign powers, the distinct sovereignty of the States is carefully recognized. Thus, the treaty of alliance with France, in 1778, is made between "the most Christian King and the United States of North America, to wit: New