HISTORY OF THE REVOLUTION AND OF THE
§ 198. WE have now completed our survey of the origin and political history of the American colonies up to the period of the Revolution. We have examined the more important coincidences and differences in their forms of government, in their laws, and in their political institutions. We have presented a general outline of their actual relations with the parent country; of the rights, which they claimed; of the dependence, which they admitted; and of the controversies, which existed at this period, in respect. to sovereign powers and prerogatives on one side, and colonial rights and liberties on the other.
§ 199. We are next to proceed to an historical review of the origin of that union of the colonies, which led to the declaration of independence; of the effects of that event, and of the subsequent war upon the political character and rights of the colonies; of the formation and adoption of the articles of confederation; of the sovereign powers antecedently exercised by the continental congress; of the powers delegated by the
§ 200. No redress of grievances having followed upon the many appeals made to the king, and to parliament, by and in behalf of the colonies, either conjointly or separately, it became obvious to them, that a closer union and co-operation were necessary to vindicate their rights, and protect their liberties. If a resort to arms should be indispensable, it was impossible to hope for success, but in united efforts. If peaceable redress was to be sought, it was as clear, that the voice of the colonies must be heard, and their power felt in a national organization. In 1774 Massachusetts recommended the assembling of a continental congress to deliberate upon the state of public affairs; and according to her recommendation, delegates were appointed by the colonies for a congress, to be held in Philadelphia in the autumn of the same year. In some of the legislatures of the colonies, which were then in session, delegates were appointed by the popular, or representative branch; and in other cases they were appointed by conventions of the people in the colonies.1 The con-
1 1 Journ. of Cong. 2, 3. &c. 27, 45; 9 Dane's Abridg. App. § 5, p. 16, § 10, p. 21.
§ 201. Thus 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, the first general or national government, which has been very aptly called "the revolutionary government," since in its origin and progress it was wholly conducted upon revolutionary principles.2 The congress, thus assembled, exercised de facto and de jure a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue of original powers derived from the people. The revolutionary government, thus formed, terminated only, when it was regularly superceded by the confederated government under the articles finally ratified, as we shall hereafter see, in 1781.3
§ 202. The first and most important of their acts was a declaration, that in determining questions in this congress, each colony or province should have one vote; and this became the established course during the revolution. They proposed a general congress to be held at the same place in May, in the next year. They appointed committees to take into consideration their rights and grievances. They passed resolutions, that "after the 1st of December, 1774, there shall be no importation into
1 All the States were represented, except Georgia.
2 9 Dane's Abridg. App. P. 1, § 5, p. 16, § 13, p. 23.
3 Sergeant on Const Introd. 7, 8, (2d ed.)
§ 203. In May, 1775, a second congress of delegates met from all the states.3 These delegates were chosen, as the preceding had been, partly by the popular branch of the state legislatures, when in session; but principally by conventions of the people in the various states.4 In a few instances the choice by the legislative body was confirmed by that of a convention,
1 1 Jour. of Cong. 21.
2 See ante, note, p. 179.
3 Georgia did not send delegates until the 15th of July, 1775, who did not take their seats until the 13th of September.
4 See Penhallow v. Doane, 3 Dall. 54, and particularly the opinions of Iredell J. and Blair J. on this point. Journals of 1775, p. 73 to 79.
1 Journals of Congress of 1775, p. 73 to 79.
2 Journals of Congress of 1775, p. 103.
3 Journals of Congress of 1775, p. 115.
§ 204. At a subsequent adjournment, they authorized the equipment of armed vessels to intercept supplies to the British, and- the organization of a marine corps. They prohibited all exportations, except from colony to colony under the inspection of committees. They recommended to New-Hampshire, Virginia, and South-Carolina, to call conventions of the people to establish a form Or government.2 They authorized the grant of commissions to capture armed vessels and transports in the British service; and recommended the creation of prize courts in each colony, reserving a right of appeal to congress.3 They adopted rules for the regulation of the navy, and for the division of prizes and prize money.4 They denounced, as enemies, all, who should obstruct or discourage the circulation of bills of credit. They authorized further emissions of bills of credit, and created two military departments for the middle and southern colonies. They authorized general reprisals, and the equipment of private armed vessels against British vessels and property.5 They organized a general treasury department. They authorized the exportation and importation of all goods to and from foreign countries, not subject to Great Britain, with certain exceptions; and prohibited the importation of slaves; and declared a forfeiture of all
1 Journals of Congress of 1775, p. 177.
2 Journals of Congress of 1775, p. 231, 235, 279.
3 Journals of Congress of 1775, p. 259, 260, &c.
4 Journals of Congress of 1776, p. 13.
5 Journals of Congress of 1776, p. 106, 107,118,119.
§ 205. These measures, all of which progressively pointed to a separation from the mother country, and evinced a determination to maintain, at every hazard, the liberties of the colonies, were soon followed by more decisive steps. On the 7th of June, 1776, certain resolutions respecting independency were moved, which were referred to a committee of the whole. On the 10th of June it was resolved; that a committee be appointed to prepare a declaration, " 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 connexion between them and the state of Great Britain is, and ought to be, dissolved."3 On the 11th of June a committee was appointed to prepare and digest the form of a confederation to be entered into between the colonies, and also a committee to prepare a plan of treaties to be proposed to foreign powers.4 On the 28th of June the committee appointed to prepare a Declaration of Independence brought in a draft. On the 2d of July, congress
1 Journals of Congress of 1776, p. 122, 123.
2 Journals of Congress of 1776, p. 166, 174.
3 Journals of Congress of 1776, p. 205, 206.
4 Journals of Congress of 1776, p. 207.
§ 206. These minute details have been given, not merely, because they present an historical view of the actual and slow progress towards independence; but because they give rise to several very important considerations respecting the political rights and sovereignty of the several colonies, and of the union, which was thus spontaneously formed by the people of the united colonies.
§ 207. In the first place, antecedent to the Declaration of Independence, none of the colonies were, or pretended to be sovereign states, in the sense, in which the term "sovereign" is sometimes applied to states.1 The term "sovereign" or "sovereignty" is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions. By "sovereignty" in its largest sense is meant, supreme, absolute, uncontrollable power, the jus summi imperii,2 the absolute right to govern. A state or nation is a body politic, or society of men,
1 3 Dall. 110. Per Blair J.; 9 Dane's Abridg. Appx. § 2, p. 10,
p. 12, § 5, p. 16.
2 1 Bl. Comm. 49; 2 Dall. 471. Per Jay C. J.
1 Vattel, B. 1, ch. 1, § 1; 2 Dall. 455. Per Wilson J.
2 Vattel, B. 1, ch. 1, § 2.
3 2 Dall. 456, 457. Per Wilson J.
4 Vattel, B. 1, ch. 1, § 2, 3.
5 1 Bl. Comm. 16. See also 1 Tucker's Black. Comm. App. note A., a commentary on this clause of the Author's text.
§ 208. In like manner the word "state" is used in various senses. In its most enlarged sense it means the people composing a particular nation or community. In this sense the state means the whole people, united into one body politic; and the state, and the people of the state, are equivalent expressions.2 Mr. Justice Wilson, in his Law Lectures, uses the word "state" in its broadest sense. "In free states," says he, "the people form an artificial person, or body politic, the highest end noblest, that can be known. They form that moral person, which in one of my former lectures,3 I described, as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests, which it ought to manage; as enjoying rights, which it ought to maintain; and as lying under obligations, which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of STATE."4 But there is a more limited sense, in which the word is often used, where it expresses merely the
1 1 Bl. Comm. 241.
2 Penhallow v. Doane, 1 Peters's Cond. Rep. 37, 38, 39; 3 Dall. R. 93, 94. Per Iredell J. Chisholm v. Georgia, 2 Dall. 455. Per Wilson J. S. C. 2 Cond. Rep. 656, 670; 2 Wilson's Lect. 120; Dane's Appx. § 50, p. 63.
3 1 Wilson's Lect. 304, 305.
4 2 Wilson's Lect. 120, 121.
1 Mr. Madison, in his elaborate Report in the Virginia legislature in
January, 1800, adverts to the different senses, in which the word "state"
is used. He says, "It is indeed true, that the term "states" is sometimes
used in a vague sense, and sometimes in different senses, according to the
subject, to which it is applied. Thus it sometimes means the separate
sections of territory, occupied by the political societies within each;
sometimes the particular governments established by those societies;
sometimes those societies, as organized into those particular governments;
and lastly, it means the people, composing those political societies in
their highest sovereign capacity."
2 2 Dall. 433; Iredell J. Id. 455, 456. Per Wilson J.
3 3 Dall. 93. Per Iredell J. 2 Dall. 455, 457. Per Wilson J.
§ 209. There is another mode, in which we speak of a state as sovereign, and that is in reference to foreign states. Whatever may be the internal organization of the government of any state, if it has the sole power of governing itself and is not dependent upon any foreign state, it is called a sovereign state; that is, it is a state having, the same rights, privileges, and powers, as other independent states. It is in this sense, that the term is generally used in treatises and discussions on the law of nations. A full consideration of this subject will more properly find place in some future page.2
1 2 Dall. 471, 472. Per Jay C. J.
Mr. J. Q. Adams, in his Oration on the 4th of July, 1831, published after the preparation of these Commentaries, uses the following language: " It is not true, that there must reside in all governments an absolute, uncontrollable, irresistible, and despotic power; nor is such power in any manner essential to sovereignty. Uncontrollable power exists in no government on earth. The sternest despotisms in any region and in every age of the world, arc and have been under perpetual control. Unlimited power belongs not to man; and rotten will be the foundation of every government, leaning upon such a maxim for its support. Least of all can it be predicated of a government, professing to be founded upon an original compact. The pretence of an absolute, irresistible, despotic power, existing in every government somewhere, is incompatible with the first principles of natural right."
2 Dr. Rush, in a political communication, in 1786, uses the term "sovereignty" in another, and somewhat more limited sense.* He says, " The people of America have mistaken the meaning of the word ' sovereignty.' Hence each state pretends to be sovereign. In Europe it is applied to those states, which possess the power of making war and peace of forming treaties, and the like. As this power belongs only to congress, they are the only sovereign power in the United States. We commit a similar mistake in our ideas of the word 'independent.' No * 1 Amer. Museum, 8, 9.
individual state, as such, has any claim to independence. She is
independent only in a union with her sister states in congress " Dr.
Barton, on the other hand, in a similar essay, explains the operation of
the system of the confederation in the manner, which has been given in the
1 2 Dall. 471. Per Jay C. J.
2 See Marshall's Hist. of Colonies, p. 483;Journals of Congress, 1774, p. 29.
3 Journal of Congress 1774 p. 27, 29, 38, 39; 1775, p. 152, 156; Marshall's Hist. of Colonies, ch. 14 p. 412, 483.
* 1 Amer. Museum, 13, 14
§ 211. 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.3 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."4 New-Jersey, too, established a frame
1 1 Chalmers's Annals, 686, 678; 2 Dall. 470. Per Jay C. J.
2 Journal of Congress, 1776, p. 282; 2 Haz. Coll. 591; Marsh. Colonies, App. No. 3, p. 469.
3 Journal of Congress, 1775, p. 115, 231, 235, 279; 1 Pitk. Hist. 351, 355; Marsh. Colon. ch. 14. p. 441, 447; 9 Hening. Stat. 112, 113; 9 Dane's Abridg. App. § 5, p. 16).
4 2 Belk. N. Hamp. ch. 25, p. 306, 308, 310; 1 Pitk. Hist. 351, 355.
1 Stokes's Hist. Colon. 51,75.
2 Stokes's Hist. Colon. 105; 1 Pitk. Hist. 355.
3 Journal, 1776, p. 241; Journal, 1774, p. 27, 45.
4 2. Dall. 470, 471. Per Jay C. J.; 9 Dane's Abridg. App. § 12, 13, p. 23, 24.
§ 212. 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 statesman2 used the following language: "This admirable manifesto (i. e. the declaration of independence) sufficiently refutes the doctrine of the individual sovereignly 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, &c. do, in the name, &c. of the good people of these colonies, solemnly publish, &c. 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
1 2 Dallas R. 470.
2 Mr. Charles Cotesworth Pinckney.
§ 213. 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 cooperation. 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
1 Debates in South Carolina, 1788, printed by A. E. Miller, Charleston, 1831, p. 43, 44.--Mr. Adams, in his oration on the 4th of July, 1831, which is valuable for its views of constitutional principles, insists upon the same doctrine at considerable length. Though it has been published since the original preparation of these lectures, I gladly avail myself of an opportunity to use his authority in corroboration of the same views "The union of the colonies had preceded this declaration, [of independence,] and even the commencement of the war. The declaration was joint, that the united colonies were free and independent states, but not that any one of them was a free and independent state, separate from the rest." "The declaration of independence was a social compact, by which the whole people covenanted with each citizen, and each citizen with the whole people, that the united colonies were, and of right ought to be free and independent states. To this compact union was as vital, as freedom or independence." "The declaration of independence announced the severance of the thirteen united colonies from the rest of the British Empire, and the existence of their people from that day forth as an independent nation. The people of all the colonies, speaking by their representatives, constituted themselves one moral person before the face of their fellow men." "The declaration of independence was not a declaration of liberty merely acquired, nor was it a form of government. The people of the colonies were already free, and their forms of government were various. They were all colonies of a monarchy. The king of Great Britain was their common sovereign."
1 3 Dall. R. 80, 81, 90, 91, 109, 110, 111, 117.
2 3 Dall. R. 91.
§ 214. The same body, in 1776, took bolder steps, and exerted powers, which could in no other manner be justified or accounted for, than upon the supposition, that a national union for national purposes already existed, and that the congress was invested with sovereign power overall the colonies for the purpose of preserving the common rights and liberties of all. They accordingly authorized general hostilities against the persons and property of British subjects; they opened an extensive commerce with foreign countries, regulating the whole subject of imports and exports; they authorized the formation of new governments in the colonies; and finally they exercised the sovereign prerogative of dissolving the allegiance of all colonies to the British crown. The validity of these acts was never doubted, or denied by the people. On the contrary, they became the foundation, upon which the superstructure of the liberties and independence of the United States has been erected. Whatever, then, may be the theories of ingenious men on the subject, it is historically true, that before the declaration of independence these colonies were not, in any absolute sense, sovereign states; that that event did not find them or make them such; but that at the moment of their separation they were under the dominion of a superior controlling national government, whose powers were vested in and exercised by the general congress with the consent of the people of all the states.1
1 This whole subject is very amply discussed by Mr. Dane in his Appendix to the 9th volume of his Abridgment of the Laws; and many of
his views coincide with those stated in the text. The whole of that Appendix is worthy of the perusal of every constitutional lawyer, even though he might differ from some of the conclusions of the learned author. He will there find much reasoning from documentary evidence of a public nature, which has not hitherto been presented in a condensed or accurate shape.
Some interesting views of this subject are also presented in President Monroe's Message on Internal Improvements, on the 4th of May, 1822, appended to his Message respecting the Cumberland Road. See, especially, pages 8 and 9.
When Mr. Chief Justice Marshall, in Ogden v. Gibbons,(9 Wheat. R. 187,) admits, that the states, before the formation of the constitution, were sovereign and independent, and were connected with each other only by a league, it is manifest, that he uses the word " sovereign " in a very restricted sense. Under the confederation there were many limitations upon the powers of the states.
1 See Penhallow v. Doane, 3 Dall. R. 54; Ware v. Hylton, 3 Dall. 199, per Chase J. See the Circular Letter of Congress, 13th Sept. 1779; 5 Jour. Cong. 341, 348, 349.
2 Jour. of Cong. 1777, p. 502.
§ 216. In confirmation of these views, it may not be without use to refer to the opinions of some of our most eminent judges, delivered on occasions, which required an exact examination of the subject. In Chisholm's Executors v. The State of Georgia,(3 Dall. 419, 470,3) Mr. Chief Justice Jay, who was equally distinguished as a revolutionary statesman and a general jurist, expressed himself to the following effect: "The revolution, or rather the declaration of independence, found the people already united for general purposes, and at
1 See Letter of 17th Nov. 1777, by Congress, recommending the articles of
confederation; Journal of 1777, p.513, 514.
2 1 Amer. Museum, 15; I Kent. Comm. 197, 198, 199.
3 S. C. 1 Peters's Cond. R. 635.
the same time providing for their more domestic concerns by state conventions, and other temporary arrangements. From the crown of Great Britain the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that crown, passed, not to the people of the colony or states, within whose limits they were situated, but to the whole people. On whatever principle this opinion rested, it did not give way to the other; and thirteen sovereignties were considered as emerging from the principles of the revolution, combined by local convenience and considerations. The people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly." In Penhallow v. Doane, (3 Dall. R. 54,1) Mr. Justice Patterson (who was also a revolutionary statesman) said, speaking of the period before the ratification of the confederation: "The powers of congress were revolutionary in their nature, arising out of events adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the centre of the union, the centre of force, and the sun of the political system. Congress raised armies, fitted out a navy, and prescribed rules for their government, &c. &c. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America, &c. &c. The danger being imminent and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert, or break the violence of the gathering
1 S. C. 1 Peters's Cond. Rep. 21.
1 S. C. 1 Peters's Cond. R. 99.
§ 217. In respect to the powers of the continental congress exercised before the adoption of the articles of confederation, few questions were judicially discussed during the revolutionary contest; for men had not leisure in the heat of war nicely to scrutinize or weigh such subjects; inter arma silent leges. The people, relying on the wisdom and patriotism of congress, silently acquiesced in whatever authority they assumed. But soon after the organization of the present government, the question 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.2 The result of that examination was, as the opinions already cited indicate, 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
1 See also 1 Kent. Comm. Lect. 10, p. 196; President Monroe's
Exposition and Message, 4th of May, 1822, p. 8, 9, 10, 11.
2 Penhallow v. Doane, 3 Dall. 54, 80, 83, 90, 91, 94, 109, 110, 111, 112, 117; Journals of Congress, March, 1779, p. 86 to 88; 1 Kent. Comm. 198, 199.
respect to national objects, furnished the best exposition of its constitutional authority, since they emanated from the representatives of the people, and were acquiesced in by the people.