INQUIRY INTO THE NATURE OF THE UNION A BRIEF HISTORICAL SKETCH THE DECLARATION OF INDEPENDENCE THE FIRST CONFEDERATION A COMPACT BETWEEN SOVEREIGN STATES JUDGE STORY REVIEWED.
MR. STEPHENS. The object of our immediate inquiry, is the nature of the Government of the United States, and where under it dwells or resides that Paramount authority which in the last resort can rightfully and peaceably make and unmake Constitutions, and to which allegiance is due. Is it in the whole mass of the people of the United States, territorially considered as one Nation, or in the People of the States, severally and separately, each for itself, untramelled by any obligations or restrictions incurred or imposed by any Articles of Union existing between them?
To understand and decide this question correctly, a brief historical review is necessary. From what has been said and assented to, it clearly appears that something exists in this country which by all sides is called "the Union." This must have parties of some sort. It requires parties to make any thing bearing the designation of Union. Who are the parties to this Union? Are they the whole mass of the People, or are they States?
It also appears in the same way, that what is called the Constitution of the United States sets forth the terms of this Union, so admitted to exist on all sides. Now, to understand the force and meaning of the terms used in this written instrument called the Constitution, it is essential to know the state of things existing, and the relations which the Parties to the Union under it bore toward each other before its formation or adoption. To understand the force and effect of a new law, it is often necessary to inquire into the old law upon the same subject- matter, in order to see the evils under the operation of the old one, and the objects aimed at in the remedies provided by the new. To understand properly the present Supreme law, we must look into what was the Supreme law before. The present is not the first Constitution of the United States. "The Union" existed under an old Constitution. The main object of the present Constitution, as appears in its preamble, was to make "the Union" then existing more perfect. It was not to make a new one, or to change the fundamental character of the one then existing; no such purpose at least is declared on the face of the instrument; it was only to make the previous "Union" more perfect, or better adapted to secure the great objects for which it had been originally formed.
PROF. NORTON. The first Union to which you refer was nothing but a Confederation between States. The terms of that Union were called Articles of Confederation. They were not called a Constitution. I cannot concede the propriety of styling tile Articles of Confederation a Constitution. Daniel Webster on some occasion said "If there is one word in the English language that the people of the United States understand, it is the word Constitution. It means," said he, "the fundamental law," and nothing like League, or Compact, or Articles of Confederation. I have often thought of the point and force of his illustration on that occasion, of the importance and the power of words barely.
MR. STEPHENS. Mr. Webster did say something like what you quote him as saying. I remember it well, and perhaps may have something more to say about him and his position in the exposition of the Constitution he made on the occasion to which you allude, before we get through. But were not the Articles of Confederation a Constitution even according to his own definition? Did they not constitute the fundamental law of the Union of the States under the Confederation of which you speak? Being the fundamental law for their government for the time being, is it not perfectly proper to style them a Constitution upon the authority of Mr. Webster himself? In so styling them, I use the same term that has been applied to them by the highest authority, not only of that day, but since. As you question its propriety, however, we had better settle all points of difference as we go along, especially as a great deal often depends upon words barely, which are frequently, as Mr. Webster says, much more than sounds, being real things within themselves. Let me therefore just here refer to some authorities which I think clearly justify the use of the term as made by me. Mr. Curtis, in his History of the Constitution of the United States, volume i, page 139, says these Articles of Confederation were "the first written Constitution of the United States." Here is Marshall's Life of Washington, volume ii, page 83. In it is Washington's letter to the Governors of the several States, dated 8th of June, 1783, in which he speaks of the Articles of the then existing Confederation as "the Constitution" of the States. Here is the first volume of Elliot's Debates; on page 96, is given, in full, a letter from the then Congress to the several States, making several recommendations to them. It is dated 18th of April, 1783. In this letter, on page 98, these words occur: "The last object recommended is a Constitutional change of the rule by which a partition of the common burthens is to be made." This shows that the men of that day understood the Articles of "the Union" then existing to be a Constitution. Changes in these Articles they characterized as Constitutional changes. Here is the ninth volume of Sparks's Writings of Washington. In this are given quite a number of letters written by him in 1788, after what I call the new Constitution had been agreed to by a Convention of the States in 1787, of which we shall have much to say perhaps hereafter. In these letters, Washington called this instrument, as I did, the new Constitution. Here is a letter written on the 23d of February, 1789, to Mr. Monroe, in which Washington says: "I received, by last night's mail, your letter dated the fifteenth of this month, with your printed observations on the new Constitution," etc. Here is another letter written by Washington to Henry Lee, under date 22d September, 1788, in which he also calls it the new Constitution. Another to Benjamin Lincoln, on the 26th of October, 1788, in which he uses the same language. These letters (and I refer to but few of them) show, beyond cavil, that Washington considered the old Articles of "Union," as much as the new, a Constitution. Besides this, the writers in the Federalist usually designated the paper then before the States for their consideration as the new Constitution in contradistinction to the old or the Articles of Confederation. I cite but a few of them: Numbers 22, 39, 41 and 44, pages 147, 255, 296 and 324, in Dawson's edition of the Federalist. Moreover, two of the States at least, Massachusetts and New Hampshire, in their Ordinances adopting and ratifying the present Constitution, expressly style it a new Constitution. Is more authority needed on this point to justify my use of the term Constitution in applying it as I did to the Articles of Confederation, as well as to the Articles of the present "Union," whatever they nay be. The first was a fundamental law as long as it lasted as much as the other.
MAJOR HEISTER. No farther authority, I think, is necessary. The Professor, from the expression of his countenance, seems to be gracefully giving it up.
MR. STEPHENS. Well, then, if the old Articles of Union were a Constitution, the new Constitution is but new Articles of Union between the same parties; unless the new Constitution changes fundamentally the character of "the Union" then existing between them. The bare change of name, of course, does not affect any change of substance.
Preliminaries being settled thus far, let us proceed with the historic sketch, which I said was necessary for a clear understanding of the subject.
Thirteen of those bodies now known as States of "the Union," were originally, or before the date of our common history, Colonies of Great Britain. Some of them were known as Provincial Colonies, some Proprietary, and some Charter Colonies, but all Colonies of Great Britain. These thirteen Colonies were New Hampshire, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Delaware, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia. These were all distinct political organizations, having no connection whatever between each other, except that the inhabitants of all were common subjects of the Government of Great Britain. They were all planted at different times, and had different forms of government; that is, the Constitutions or Charters of no two of them were alike, though all were founded upon the representative principle. They were all free Democratic Governments. The Charter of the Virginia Government was the oldest; it dates back to 1606. The charter of the last of these Colonies was that of Georgia; it was granted in 1732. These Colonies, as stated, were all separate and distinct political bodies, without any direct permanent political connections between them until 1774. It is true, in 1643, a Convention or Union of some sort for their own mutual protection, was formed between two or more of the New England Colonies, a name given to all those lying East of New York, which lasted until 1683-4,* when it was dissolved by the abrogation of their original charters by the British Government. No farther notice, therefore, for our present object need be taken of that "Union" or its character. Subsequently, in 1754 and 1765, attempts were made by certain Colonies to form some sort of a general Union or Confederation of all these Colonies for their better protection, in combined efforts against the Indians, as well as for joint consultation between themselves on questions of policy adopted by the mother country touching their common interests. These efforts failed. No Union of any sort resulted from them. The last and successful effort was made in 1774. This was at the instance of Virginia. This was after what is known as the Boston Port Bill passed the British Parliament, and after the act of Parliament again changing the Charter of the Massachusetts Colonial Government, and against her consent. These measures awakened a profound sensation in all the Colonies, though the blow was aimed directly at one of them only, yet they all saw that the principle involved the rights and liberties of each severally. Virginia appealed to all to send up delegates to a General Convention or Congress, for joint consultation and concert of action. Mr. Webster once said that the American Revolution was fought on a Preamble on the Preamble of the act of Parliament, which, while it reduced the tax on tea to a nominal amount, yet declared the right of the British Parliament to tax the Colonies in all cases whatsoever. This statement has in it much more of the exuberance of a figure of rhetoric than the exact accuracy of historical statement. The first moving cause which aroused all the Colonies to that concert of action which ended in the Revolution, was the direct assault of the British Government upon the chartered Rights of Massachusetts.* This, and not the tax on tea, or what was contained in the Preamble to that act, is what caused the Colonial Legislature of Virginia to pass an order appointing a day for fasting, humiliation and prayer, to implore the Divine interposition for averting the heavy calamity which threatened their civil rights, and which caused them, when dissolved on account of this Resolution by their Royal Governor, to call for a Congress of all the Colonies.
* Bancroft's History United States, vol. ii, p. 127.
* Curtis's History of the Constitution, vol. i, p 6.
Id. vol. i, p. 11.
It was then that the cry went up, from the St. Croix to the Altamaha, "the cause of Boston is the cause of all." The violation of the chartered rights of Massachusetts, prompted the call for a general Congress. This was the moving cause. This appeal, made by Virginia, was responded to by the Colonies generally. The result was the assemblage of deputies from twelve Colonies, which met at Philadelphia on the fifth of September, 1774. This is the first Convention or Congress of the Colonies from which the present "Union" sprung. The first thing settled in this Congress was the nature of its own character and organization. It was determined to be a Congress of separate, distinct political bodies. In all its deliberations each Colony was to be considered as equal, and each was to have an equal vote and voice upon all questions coming before it, without reference to the number of delegates sent up by the respective Colonies; for the object of all was the defence and preservation of what was claimed to be the inalienable right of each.*
* Elliot's Debates, vol. i, p. 42, et sequens. The object of the meeting of this Congress may be seen from some of the powers conferred on their delegates in several of the Colonies:
VIRGINIA: "To consider of the most proper and effectual manner of so operating on the Commercial connection of the Colonies with the Mother country, as to procure redress for the much-injured Province of Massachusetts Bay, to secure British America from the ravage and ruin of arbitrary taxes, and speedily to procure the return of that harmony and union so beneficial to the whole empire, and so ardently desired by all British America."
MARYLAND: "To attend a General Congress to assist one general plan of conduct operating on the Commercial connection of the Colonies with the mother country, for the relief of Boston and the preservation of American Liberty."
SOUTH CAROLINA: "To consider the acts lately passed, and bills depending in Parliament with regard to the Port of Boston and Colony of Massachusetts Bay; which Acts and Bills, in the precedent and consequence, affect the whole Continent of America. Also the grievances under which America labors, by reason of the several acts of Parliament that impose taxes or duties for raising a revenue, and lay unnecessary restraints and burdens on trade, etc." The defence of the rights of Massachusetts was a leading object with all. Note on page 21 of Judge Upshur on the Nature of the Federal Government.
This Congress, so organized and so constituted, after making a declaration of the indefeasible Rights of all the Colonies, made several recommendations to the Governments of the Colonies respectively, as to the course which should be adopted by them in common, for a redress of the wrongs of each in particular. After this action, this body was dissolved, with a recommendation to the Colonies to meet in Congress again by deputies, on the tenth of May, 1775. The Colonies did accordingly send up deputies to another Congress as recommended, which assembled on the tenth of May, 1775, as recommended. All the thirteen Colonies, above stated, were represented by delegates in this Assemblage. This is the Congress by which the first permanent "Union" between the Colonies was formed. At first, as their predecessor, they adopted various measures and recommendations for the relief of grievances, which failing, they came to the conclusion finally, on the fourth day of July, 1776, that the only hope for the inalienable as well as chartered liberties of each was for all to throw off their allegiance to the British Crown and to declare their separate Independence of it. This is the Congress, or body of men, that formed the Articles of. Confederation to which you referred, and which Mr. Curtis styles, as I have shown, the first written Constitution of the United States. This was the first "Union." And after this brief historical review, with these further preliminaries settled, I proceed to assert, as a matter of history, that the former "Union," or "the Union" under the Articles of Confederation, the first Constitution, was a "Union" of separate, distinct, Sovereign and Independent States. In other words, that the thirteen States, formerly British Colonies, after they asserted their Independence as Sovereign States, entered into "A Union" as separate Sovereignties, and that it was a Union of States, as States. This "Union" was formed in 1777, during the common struggle of all the States for the separate and several Independence and Sovereignty of each. Eleven States, to wit: New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, New Jersey, Virginia, North Carolina, South Carolina, and Georgia, ratified that "Union" in the year 1778 Delaware entered it in February 1779, and Maryland in March 1781.* Each of these States entering into it did so as a distinct, separate, Sovereign political body. This was "the Union" of the Confederation, as you styled it. Mr. Curtis, in his History of the Constitution of the United States, to which I have just referred, in speaking of "this Union," says: "the Parties to this instrument (the Articles of Confederation) were free, Sovereign, political Communities each possessing within itself all the powers of Legislation and Government over its own citizens, which any political Society can possess."
* Elliot's Debates, vol. i, p. 78.
Curtis on the Constitution of the United States, vol. i, p. 142.
This, I assume, then, as an unquestionable truth or fact in our History, from which we may start in our inquiry.
JUDGE BYNUM. I am not prepared to grant that. If I recollect correctly, Judge Story, in his Commentaries on the Constitution of the United States, utterly overthrows and refutes the facts upon which that assumption is based. He denies that the States were ever separate distinct Sovereign, political Societies or bodies. He maintains that tile people of the United States became one Nation even before the Articles of Confederation were entered into, and that the Sovereignty of the whole was merged into one during the joint struggle of all for independence, which was achieved by the whole for the whole, and not for parts separately. Have you Story on the Constitution? I am a disciple of Story on this question, as well as on all other questions of Constitutional law! I think Motley, the historian, also takes the same view of this subject as Story. Have you at hand what these writers have said on this point?
MR. STEPHENS. Yes; I have Story's Commentaries on the Constitution, and also Mr. Motley's article to the London Times, to which, I suppose, you refer: I am quite familiar with both. Here is what you refer to in Story, I suppose. Volume i, Book ii, Chap. i, § 210.
JUDGE BYNUM. Yes, this is it. Now hear what he says: and see how completely he disproves the fact upon which your whole argument is about to be founded.
"Now it is apparent, that none of the colonies before the Revolution were, in the most large and general sense, independent, or Sovereign communities. They were all originally settled under, and subjected to the British crown. Their powers and authorities were derived from, and limited by their respective charters. All, or nearly all, of these charters controlled their legislation by prohibiting, them from making laws repugnant, or contrary to those of England. The Crown, in many of them, possessed a negative upon their legislation, as well as the exclusive appointment of their superior officers; and a right of revision, by way of appeal, of the judgments of their courts. In their most solemn declarations of rights, they admitted themselves bound, as British subjects, to allegiance to the British Crown; and, as such, they claimed to be entitled to all the rights, liberties, and immunities of free born British Subjects. They denied all power of taxation, except by their own Colonial Legislatures; but at the same time they admitted themselves bound by acts of the British Parliament for the regulation of external commerce, so as to secure the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members. So far, as respects foreign States, the Colonies were not, in the sense of the laws of nations, Sovereign States; but were dependencies of Great Britain. They could make no treaty, declare no war, send no ambassadors, regulate no intercourse or commerce, nor in any other shape act, as Sovereigns, in the negotiations usual between independent States. In respect to each other, they stood in the common relation of British subjects; the legislation of neither could be controlled by any other; but there was a common subjection to the British Crown. If in any sense they might claim the attributes of Sovereignty; it was only in that subordinate sense, to which we have alluded, as exercising within a limited extent certain usual powers of Sovereignty. They did not even affect to claim a local allegiance.
"In the next place, the Colonies did not severally act for themselves, and proclaim their own independence. It is true, that some of the States had previously formed incipient Governments for themselves; but it was done in compliance with the recommendations of Congress. Virginia, on the 29th of June, 1776, by a Convention of Delegates, declared 'the Government of this Country, as formerly exercised under the Crown of Great Britain, totally dissolved;' and proceeded to form a new Constitution of Government. New Hampshire also formed a Government, in December, 1775, which was manifestly intended to be temporary, 'during,' as they said, 'the unhappy and unnatural contest with Great Britain.' New Jersey, too, established a frame of Government, on the 2d of July, 1776; but it was expressly declared that it should be void upon a reconciliation with Great Britain. And South Carolina, in March, 1776, adopted a Constitution of Government; but this was, in like manner, 'established until an accommodation between Great Britain and America could be obtained.' But the Declaration of the Independence of all the Colonies was the united act of all. It was 'a Declaration by the Representatives of the United States of America, in Congress assembled;' 'by the Delegates, appointed by the Good People of the Colonies,' as in a prior Declaration of Rights they were called. It was not an act done by the State Governments, then organized; nor by persons chosen by them. It was, emphatically, the act of the whole People of the United Colonies, by the instrumentality of their Representatives, chosen for that, among other purposes. It was an act, not competent to the State Governments, or any of them, as organized under their Charters, to adopt. Those Charters neither contemplated the case, nor provided for it. It was an act of original, inherent Sovereignty, by them 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. I was, therefore, the achievement of the whole for the benefit of the whole. People of the United Colonies made the United Colonies free and independent States, and absolved them from all allegiance to the British Crown. The Declaration of Independence, has, accordingly, always been treated as an act of Paramount and Sovereign authority, complete and perfect, per se; and, ipso facto, working an entire dissolution of all political connection with, and allegiance to, Great Britain. And this, not merely as a practical fact, but in a legal and Constitutional view of the matter by Courts of Justice.
"In the debates in the South Carolina Legislature, in January, 1788, respecting the propriety of calling a Convention of the People, to ratify or reject the Constitution, a distinguished Statesman used the following language: 'This admirable manifesto [i. e., the Declaration of Independence] sufficiently refutes the doctrine of the individual Sovereignty and Independence of the several States. In that Declaration, the several States are not even enumerated; but, after reciting, in nervous language, and with convincing arguments, our right to Independence, and the tyranny which compelled us to assert it, the Declaration is made in the following words: "'We, therefore, the Representatives of the United States, etc., do, in the name, etc., of the Good People of these Colonies, solemnly publish, etc., that these United Colonies are, and of right ought to be, free and independent States.'" The separate Independence and individual Sovereignty of the several States were never thought of by the enlightened band of patriots who framed this Declaration. The several States are not even mentioned by name in any part, as if it was intended to impress the maxim on America, that our freedom and independence arose from our Union, and that, without it, we could never be free or independent. Let us, then, consider all attempts to weaken this Union by maintaining that each State is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distresses.
"In the next place, we have seen that the power to do this act was not derived from the State Governments; nor was it done generally with their co-operation. The question, then, naturally presents itself, if it is to be considered as a National act, in what manner did the Colonies become a Nation, and in what manner did Congress become possessed of this National power? The true answer must be that, as soon as Congress assumed powers, and passed measures, which were, in their nature, National, to that extent, the People, from whose acquiescence and consent they took effect, must be considered as agreeing to form a Nation."
Judge Story here maintains and clearly shows that the whole people of the United States became one people, one political society, and bound together in one National Government, by the Declaration of Independence, which was one Supreme Sovereign National act, done by the Paramount authority, or Sovereignty of the whole people of all the Colonies, as one Nation, and that all idea of separate State Sovereignty, or of the States ever having been separate, Independent Sovereign powers at any period of their history, is utterly unfounded. That the separate Independence and individual Sovereignty of the several States were never thought of by the enlightened band of, patriots, who framed the Declaration of Independence. To my mind his positions are unassailable, and his arguments unanswerable. I should like to hear what you have to say against them. We will postpone Mr. Motley's article until we hear from you in reply to Judge Story.
MR. STEPHENS. Perhaps we had better take up Mr. Motley first. The one is a complete answer to the other, on the question directly now before us; that is, whether the States of our "Union " were ever separate Independent Sovereignties. On this point he fully agrees with -Mr. Curtis. Judge Story wrote in 1833. He was a much better lawyer than historian, as we shall see. In his preface to these Commentaries, he says: "In dismissing the work, I cannot but solicit the indulgence of the public for its omissions and deficiencies. With more copious materials it might have been made more exact as well as more satisfactory. With more leisure and more learning, it might have been wrought up more in the spirit of political philosophy. Such as it is, it may be not wholly useless as a means of stimulating abler minds to a more thorough review of the subject," etc.*
* Preface to Commentary, p. 7.
Mr. Curtis, who went much more elaborately into the subject, wrote in 1854. Mr. Motley's article appeared in 1861. Here is that article in the Rebellion Record, volume i, page 210. In it, he, like Judge Story, attempts to show, that the whole people of the United States now constitute one Nation. He arrives at this conclusion, however, by a very different chain of reasoning. That chain, and its links, we shall, perhaps, have occasion to examine in detail hereafter. Just here, I refer only to that part bearing directly upon the question now in issue. This is what he says:
"The body politic, known for seventy years as the United States of America, is not a Confederacy, not a compact of Sovereign States, not a co-partnership; it is a Commonwealth, of which the Constitution, drawn up at Philadelphia, by the Convention of 1787, over which Washington presided, is the organic, fundamental law. We had already had enough of a Confederacy. The thirteen rebel provinces, afterwards the thirteen original independent States of America, had been united to each other during the Revolutionary War, by articles of Confederacy. 'The said States hereby enter into a firm league of friendship with each other.' Such was the language of 1781, and the league or treaty thus drawn up was ratified, not by the people of the States, but by the State Governments, the legislative and executive bodies namely, in their corporate capacity.
"The Continental Congress, which was the central administrative board during this epoch, was a diet of envoys from Sovereign States. It had no power to act on individuals. It could not command the States. It could move only by requisitions, and recommendations. Its functions were essentially diplomatic, like those of the States General of the old Dutch Republic, like those of the modern Germanic Confederation. We were a league of petty Sovereignties."
This is quite enough of this article just now. I quote from him no further for the present. We may have to refer to other portions of his article again on another point as we advance. Mr. Motley, in that portion which I have quoted, fully admits and distinctly asserts that the first "Union" was "a Union" of States. Of Sovereign States. So much by way of setting off one of these high authorities against the other.
Now what I have to say in reply to Judge Story's argument, is, that it would be conclusive of the question if it were sustained by the facts; but being so directly in opposition to the great unquestionable facts of our history facts which Mr. Motley could not venture to gainsay facts as well established as that America was discovered by Columbus, or that the colonies were subject to the British Government at the time of their Declaration of Independence it is utterly untenable.
JUDGE BYNUM. Do you question his facts?
Mr. STEPHENS. Some of them I most certainly do. Indeed, all of them, every one of them, that has any material bearing upon the question in issue. I do not question the fact that the Colonies, under their Charter Governments, were not Sovereign, or that they never pretended to be Sovereign, or that they did not claim a local allegiance. What has that to do with the question? Nor do I dissent from the statement that the Declaration of Independence was not made by these Charter Governments, nor that they were not competent or authorized to adopt it. No truth is better established than that but what has that to do with the question? That the Declaration of Independence was entirely revolutionary in its character is also true. All admit it. The Declaration was made with a view to overthrow these very Governments, as they were then administered, and the authority of the British Crown, under whose auspices they had been established, or by which they were then attempted to be controlled. What need had Judge Story to state this fact in the line of his argument? I do most fully agree with him also where he says that those Charters neither contemplated the case or 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." This I fully agree to. But this was done by the Paramount authority of the people of each Colony respectively for themselves. The Declaration itself was made by the people of each Colony, for each Colony, through representatives acting by the Paramount authority of each Colony, separately and respectively. The Declaration of Independence was, in this way, a joint act of all the Colonies, for the benefit of each severally, as well as for the whole. The Congress that made it was a Congress of States. The deputies or delegates from no State assumed to vote for it until specially instructed and empowered so to do. Massachusetts had instructed and empowered her delegation so to act as early as January before; South Carolina in March; Georgia in April; North Carolina in April; Rhode Island in May; Virginia in May; New Hampshire in June; Connecticut in June; New Jersey in June; Maryland in June; Pennsylvania and New York were the last. The powers and instructions from these States did not arrive until after the 1st day of July, which caused a postponement of final action of the Congress on the Declaration until the 4th day of that month, when, full powers being received from all the States, it was then, after being voted upon by States and carried by States, unanimously proclaimed by all the States, so in Congress assembled.* The Declaration of Independence was, be it remembered, voted upon and carried by States, and proclaimed by and in the name of States.
* Bancroft, vol. viii, pp. 449, 450, 475; Elliot's Debates, vol. i, p. 60; Curtis's His. Cons., vol. i, p. 51, This is the true history of the matter. But the statement adopted by Judge Story, of the reported remarks of Mr. Pinckney of South Carolina, is even more extraordinary still.
This statement is, "that the separate independence and individual Sovereignty of the several States were never thought of by the enlightened band of patriots who framed this Declaration."
That these men did look forward hopefully for a continued Union of the States, under a Compact to be formed securing the Independence and Sovereignty of each, I do not doubt; but that they did not then consider each as an Independent Sovereign power, is wholly at variance with all the attending facts. The very Declaration itself shows this conclusively without going farther into a detail of these facts. The very title shows how it was made. Here it is: "In Congress, July 4th, 1776, the unanimous Declaration of the thirteen United States of America." It was the Declaration of States in Congress assembled, by their deputies, empowered by the Paramount authority of each, to make it. The Declaration was not that they were to be one State, as New Hampshire had instructed her representatives to make it,* but, in their own language, "thirteen free, Sovereign and Independent States." This was in strict accordance with the instructions of their constituents. The people of the several Colonies would not consent for a Declaration to be made in any other way. This appears from the instructions of all the Colonies or States except New Hampshire. In their several instructions and powers for the Declaration of Independence, were instructions and powers for forming a Confederation of Independent States. So universal was this sentiment, that Richard Henry Lee's first motion for the Declaration of Independence, early in June, was not only for Independence, but farther for "a plan of Confederation, to be prepared and transmitted to the respective Colonies for, their consideration and approbation."
See Appendix A.
* Bancroft, vol. viii, p. 438.
Bancroft, vol. viii, pp. 378, 437.
Bancroft, vol. viii, p. 389.
The following contains the instructions and powers given by Maryland to her deputies in Congress:
"We, the Delegates of Maryland, in Convention assembled, do declare that the King of Great Britain has violated his compact with this people, and that they owe no allegiance to him. We have, therefore, thought it just and necessary to empower our Deputies in Congress to join with a majority of the United Colonies in declaring them free and independent States, in framing such further Confederation between them, in making foreign alliances, and in adopting such other measures as shall be judged necessary for the preservation of their liberties':
"Provided, the sole and exclusive right of regulating the internal polity and government of this Colony be reserved to the people thereof. We have also thought proper to call a new Convention for the purpose of establishing a Government in this Colony."
The plan for a Confederation of separate Independent Sovereign States, was moved in the very resolution which proposed the Declaration of their Independence. And subsequently, on the 24th of June, 1776, the Congress declared, by resolution, that "all persons abiding within any of the United Colonies and deriving protection from the laws of the same, owed allegiance to the said laws, and were members of such Colony; and that all persons passing through, or making a temporary stay in any of the Colonies being entitled to the protection of the laws, during the time of such passage, visitation, or temporary stay, owed, during the same, allegiance thereto.*
* Journals, ii. 216; Curtis's History of the Constitution, vol. i, p. 52.
Hence, with these views and objects, after enumerating the causes which induced the people of each Colony, as a separate political body, or one people, to take the course they did, this unanimous Declaration of the thirteen United States, was in these words: "We, therefore, the Representatives of the United States of America in General Congress assembled (that is of the States thus united in Congress assembled), appealing to the Supreme Judge of all the world for the rectitude of our intentions, 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; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor."
The Declaration was then signed by the delegates from each Colony or State, separately, each delegation acting in behalf and by the Paramount authority of each State severally and respectively.
Judge Story says that this Declaration has 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. This is certainly true to the letter. He very cautiously, however, abstains from stating, by whose Paramount and Sovereign authority it was done, and to what Paramount authority allegiance under it was due, and declared to be due, by the States themselves in Congress assembled. We have seen that it was done by the authority of each State severally and respectively, and that the allegiance of the citizens of each was declared to be due to each severally and respectively.
Strange, indeed, is it, that Judge Story should assert, as he does, "that we have seen that the power to do this act was not derived from the State Governments, nor was it done generally with their co-operation." This language is exceedingly ambiguous. If he meant that it had been seen that the act was not done by the authority, nor with the co-operation of the Royal Charter Governments, no fact is more readily admitted; and none could be stated, less relevant, or less pertinent; but, if he meant to say that it was not done entirely by the authority of the new Revolutionary Governments, erected in each State by virtue of the asserted Sovereignty of the People thereof, respectively, then, his statement is utterly unsustained by the record itself, as well as in direct conflict with the whole history of the times. The Delegates themselves say, in the paper signed by them, that it was
done in the name, and by the authority, of the People of the Colonies. That is, the Sovereign authority of the People of each Colony, respectively. For not one of them had any authority to speak for the People of any Colony, except the one he was delegated to represent; nor did any one assume or presume to speak for his own Colony, until empowered to do so. The object of Judge Story seems to have been to produce the impression, without positively stating the fact so in truth to be, that the Declaration of Independence was a National act. That it was not made by the States, as States, but by an assembly of men, assuming to speak for the American Colonists as one People or Nation; and that, too, without any authority whatever, except their own assumed powers. This is clearly the purport of the concluding part of what you read from him. The language used by him is most remarkable, coming from such a source. "The question," says he, "then naturally presents itself, if it is to be considered a National act [he does not affirm that it was, but says if it is to be considered so], in what manner did the Colonies become a Nation, and in what manner did Congress become possessed of this National power? The true answer [that is, if it is to be considered so, he goes on to say] must be that, as soon as Congress assumed powers and passed measures which were National, to that extent, the people, from whose acquiescence and consent they took effect, must be considered as agreeing to form a Nation!"
Such an argument and such a conclusion, founded upon such an IF, you must allow me to say, require all Judge Story's reputation, to entitle them to even a moment's notice, or to elevate them to the dignity of serious consideration.
You will please excuse me, Judge, for speaking so of an argument presented by the founder of your school of Politics. I mean no detraction from his real merits. He was, truly, a very great man, in many respects. I knew him well, and esteemed him highly. He was a man of most charming manners, and of extraordinary attainments in many departments of learning; he was an accomplished lawyer and a profound Jurist. He was an ornament to the Supreme Court Bench, and an honor to the country and the age in which he lived. He had, however, little to do with Politics. He was, in no sense, a Statesman. The science of Government was not the one in which his abilities shone to advantage; and hard pressed, indeed, must he have been in his efforts to prove that the whole People of the United States now constitute one Nation, when he was compelled to resort to such logic, to establish so great and so important an historical fact! He was, however, lawyer enough to know that, if it could not be thus established, it could not be established at all. He knew that, if it be once admitted that the States severally were ever Sovereign, they are so still, or were up to the beginning of this war which was waged against the assertion of this right. He so frankly asserts in a subsequent part of his treatise, as we shall see as we advance. It was exceedingly important, therefore, for the establishment of his theory of a unity of the people now as one Nation, to get a conclusion somehow, that the States were never separately Sovereign. But nothing is easier to be done, than to show that his conclusion, so drawn, from premises of the imagination entirely, has not a solitary fact to stand upon.
Our history at this period rests not upon legends or fables. That Congress itself did not regard their act as the result of assumed, or unauthorized powers, their acts at the time abundantly show. That they did not consider the Declaration of Independence as a National act, or put any such construction upon it, as Judge Story has done, appears clearly from what they were then doing. At the very time the Declaration or Independence was made, a Committee, consisting of one delegate from each State, was organized to prepare articles of Confederation between the States, as separate, distinct Sovereign political Communities.* That Committee, which was appointed on the 11th of June, even before the Declaration of Independence was agreed to, and in anticipation of it, reported the Articles of Confederation, before referred to, which, Mr. Curtis says, was the first written Constitution of the United States. The title of these Articles speaks for itself. It is in these words: "Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia." After stating the style of the Confederacy to be "The United States of America," the very first clause in these Articles of Union is in these words: "Each State retains its Sovereignty, freedom and independence, and every power, Jurisdiction and right, which is not by this Confederacy expressly delegated to the United States, in Congress assembled." These Articles were reported on 12th day of July, eight days after the Declaration. Moreover, this argument and conclusion of Judge Story are utterly inconsistent with the facts acknowledged and set forth in the treaty of Peace with Great Britain, in 1783. The very first article of that treaty is in these words:
* Curtis's His. Con., vol. i, p. 53.
Curtis's His. Con., vol. i, p. 53,
Statutes at Large, vol. viii, p. 80
"His Britannic Majesty acknowledges the said United States, viz.: New Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, Sovereign and Independent States; that he treats with them as such; and for himself, his heirs, and successors, relinquishes all claim to the Government, propriety, and territorial rights of the same, and every part thereof."
The fifth article of the treaty clearly shows how the States, the other party to it, understood it. This is in these words:
"It is agreed that the Congress shall earnestly recommend it to the Legislatures of the respective States, to provide for the restitution of all estates, rights and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights and properties of persons resident in Districts in possession of his Majesty's arms, and who have not borne arms against the said United States. And that persons of any other description shall have free liberty to go to any part or parts of any of the thirteen United States, and therein to remain twelve months, unmolested in their endeavors to obtain the restitution of such of their estates, rights and properties, as may have been confiscated; and that Congress shall also earnestly recommend to the several States a reconsideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent, not only with justice and equity, but with that spirit of conciliation, which on the return of the blessings of peace should universally prevail. And that Congress shall also earnestly recommend to the several States, that the estates, rights and properties of such last mentioned persons, shall be restored to them, they refunding to any persons who may be now in possession, the bona fide price (where any has been given) which such persons may have paid on purchasing any of the said lands, rights or properties, since the confiscation. And it is agreed, that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights."
So far from the Federal Government assuming a national character at that time, it would not presume to bind the States or enter into an obligation upon matters that related to their own separate Sovereign Jurisdiction. That Government only engaged to use its influence in recommending to the Sovereign States respectively certain stipulations. This statement of Judge Story is the more remarkable, because it is in direct conflict with numerous decisions of the Supreme Court of the United States.
This Court, in the case of McIlvaine vs. Coxe, 2d Peters's Condensed Reports, page 86, in 1805, held that, "on the 4th of October, 1776, the State of New Jersey was completely a Sovereign, Independent State, and had a right to compel the inhabitants of the State to become citizens thereof." In delivering the opinion of the Court in this case, Mr. Cushing says: "the Court deems it unnecessary to declare an opinion upon a point which was much debated in this case, whether a real British subject, born before the 4th of July, 1776, who never from the time of his birth resided within any of the American Colonies or States, can upon the principles of the common law take lands by descent in the United States; because Daniel Coxe, under whom the lessor of the plaintiff claims, was born in the Province of New Jersey, long before the Declaration of Independence, and resided there until some time in the year 1777, when he joined the British forces.
"Neither does this case produce the necessity of discriminating very nicely the precise point of time, when Daniel Coxe lost his right of election to abandon the American cause and adhere to his allegiance to the King of Great Britain; because he remained in the State of New Jersey, not only after she declared herself a Sovereign State, but after she had passed laws by which she pronounced him to be a member of, and in allegiance to the new Government. The Court entertains no doubt, that after the 4th of October, 1776, he became a member of the new Society, entitled to the protection of its Government, and bound to that Government by the ties of allegiance."
One of the points in this case was citizenship, and to what power allegiance was due; or in other words, where Sovereignty or Paramount authority under our system then resided that is, under the Confederation. These, as we settled in the beginning, belong to Sovereignty and follow it. In this case the Supreme Court of the United States decided that both citizenship and allegiance, in 1776, after the Declaration of Independence, belonged to the States severally and respectively. Further on, in the same case, the Court say: "If then, at the period of the treaty of peace, the laws of New Jersey, which made Daniel Coxe a subject of that State, were in full force, and were not repealed, or in any manner affected by that instrument if, by force of these laws, he was incapable of throwing off his allegiance to the State, and derived no right to do so by virtue of the treaty, it follows that he still retains the capacity he possessed before the treaty," etc.
That capacity was the right to claim citizenship of the State of New Jersey, with all its privileges and immunities, with their accompanying obligations, amongst which was allegiance to her Sovereignty, which he could not throw off.
In another case decided by the same Court, in February, 1796, nine years before Ware, etc., vs: Hylton, etc., 3 Dallas, 199, Chase, Justice, in delivering his opinion, says:
"The first point raised by the counsel for the plaintiff in error was, that the Legislature of Virginia had no right to make the law of the 20th of October, 1777, above in part recited. If this objection is established, the judgment of the Circuit Court must be reversed, because it destroys the defendant's plea in bar, and leaves him without defence to the plaintiff's action,
"I would also remark, that the law of Virginia was made after the Declaration of Independence by Virginia, and also by Congress, and several years before the Confederation of the United States, which, although agreed to by Congress on the 15th of November, 1777, and assented to by ten States in 1778, was only finally completed and ratified on the first of March, 1781.
"I am of opinion that the exclusive right of confiscating, during the war, all and every species of British property, within the territorial limits of Virginia, resides only in the Legislature of that Commonwealth. * * * * It is worthy of remembrance, that delegates and representatives were elected by the people of the several counties and corporations of Virginia, to meet in general Convention, for the purpose of framing a new Government, by the authority of the people only; and that the said Convention met on the sixth of May, and continued in session until the fifth of July, 1776; and, in virtue of their delegated power, established a Constitution or form of Government, to regulate and determine by whom, and in what manner, the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and fountain of all power that could be rightfully exercised within its limits, they had therefore an unquestionable right to grant it to whom they pleased, and under what restrictions or limitations they thought proper. The people of Virginia, by their Constitution or fundamental law, granted and delegated all their supreme civil power to a Legislature, an Executive, and a Judiciary; the first to make; the second to execute; and the last to declare or expound the laws of the Commonwealth. This abolition of the old Government, and this establishment of a new one, was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connection with, Great Britain, absolutely and forever ceased; and no formal Declaration of Independence was necessary, although a decent respect for the opinions of mankind required a Declaration of the causes which impelled the separation, and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable, that the Legislature of Virginia, established as I have stated by the authority of the people, was forever thereafter invested with the supreme and Sovereign power of the State, and with authority to make any laws in their discretion, to affect the lives, liberties, and property of all the citizens of that Commonwealth. * * The Legislative power of every nation can only be restrained by its own Constitution; and it is the duty of its Courts of Justice not to question the validity of any law made in pursuance of the Constitution. There is no question but the act of the Virginia Legislature (of the 20th of October, 1777), was within the authority granted to them by the people of that country; and this being admitted, it is a necessary result that the law is obligatory on the Courts of Virginia, and, in my opinion, on the Courts of the United States. If Virginia, as a Sovereign State, violated the ancient or modern law of nations in making the law of the 20th of October, 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law. * * * * * * * * * In June, 1776, the Convention of Virginia was a free, Sovereign, and Independent State; and on the fourth of July, 1776, following, the United States, in Congress assembled, declared the thirteen United Colonies free and Independent States; and that, as such, they had full power to levy war, conclude peace, etc. I consider this as a Declaration, not that the United Colonies JOINTLY, in a collective capacity, were Independent States, etc., but that each of them was a Sovereign and Independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth!"
Is authority clearer, stronger, or higher, needed to show the utter groundlessness of Judge Story's argument? If so let us turn to what Chief Justice Marshall said, in delivering the decision of the Supreme Court of the United States, in the great case of Gibbons vs. Ogden, in 1824. Here it is:
"As preliminary to the very able discussion of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were Sovereign, were completely Independent, and were connected with each other only by a league. This is true!"*
* Peters's Con. Rep. vol. v, p. 565.
Judge Marshall here distinctly affirms, judicially affirms, from the Bench of the Supreme Court of the United States, that the States were separate and distinct Sovereignties when the Articles of Confederation were entered into, and that these articles were but a league between Sovereign Powers.
PROF. NORTON. Judge; these authorities seem to be strong and to the point.
MR. STEPHENS. Strong! Why, sir, there is no answer to them. Judge Story's account of the matter, and his whole argument built upon it, has not a single fact to rest upon; and unless something can be offered in reply, not to me, but to these authorities, I shall take up no more time in establishing the correctness of the assumption with which I set out, that is, that the States, in forming their first political Union, from which the present sprung, entered into it, as free, Sovereign, Independent Powers, or, in other words, in the further prosecution of our inquiry, we may now take it as an established fact, that Mr. Curtis was right, in saying that "the Parties to this instrument (the Articles of Confederation) were free, Sovereign, political Communities, each possessing within itself powers of Legislation and Government over its own citizens, which any political society can possess."
This is equivalent to saying, that the first Constitution was a Compact between Sovereign States, and that the ultimate Paramount authority or Sovereignty under that union remained and resided with the States severally.
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