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
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
CH. I.] HISTORY OF THE REVOLUTION. 185
confederation to the general government; of the causes of the decline and
fall of the confederation; and finally, of the establishment of the present
constitution of the United States. Having disposed of these interesting
and important topics, we shall then be prepared to enter upon the
examination of the details of that constitution, which has justly been
deemed one of the most profound efforts of human wisdom, and which (it is
believed) will awaken our admiration, and warm our affection more and more,
as its excellencies are unfolded in a minute and careful survey.
§ 200. No redress of grievances having followed upon the many
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.
186 HISTORY OF THE REVOLUTION. [BOOK II.
gress of delegates (calling themselves in their more formal acts "the
delegates appointed by the good people of these colonies") assembled on the
4th of September, 1774;1 and having chosen officers, they adopted certain
fundamental rules for their proceedings.
§ 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,
§ 202. The first and most important of their acts was a
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.
CH. 1.] HISTORY OF THE REVOLUTION. 187
British America from Great Britain or Ireland of any goods, &c. or from
any other place, of any such goods, as shall have been exported from Great
Britain or Ireland;" that "after the 10th of September, 1775, the
exportation of all merchandise, &c. to Great Britain, Ireland, and the
West Indies ought to cease, unless the grievances of America are redressed
before that time."1
They adopted a declaration of rights, not differing in substance from that
of the congress of 1765,2 and affirming, that the respective colonies are
entitled to the common law of England and the benefit of such English
statutes, as existed at the time of their colonization, and which they have
by experience respectively found to be applicable to their local and other
circumstances. They also, in behalf of themselves and their constituents,
adopted and signed certain articles of association, containing an agreement
of non-importation, non-exportation, and non-consumption in order to carry
into effect the preceding resolves; and also an agreement to discontinue
the slave-trade. They also adopted addresses to the people of England, to
the neighbouring British colonies, and to the king, explaining their
grievances, and requesting aid and redress.
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
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
1 1 Jour. of Cong. 21.
188 HISTORY OF THE REVOLUTION. [BOOK II.
and e converso.1 They immediately adopted a resolution, prohibiting all
exportations to Quebec, Nova-Scotia, St. Johns, Newfoundland, Georgia,
except St. Johns Parish, and East and West Florida.2 This was followed up
by a resolution, that the colonies be immediately put into a state of
defence. They prohibited the receipt and negotiation of any British
government bills, and the supply of any provisions or necessaries for the
British army and navy in Massachusetts, or transports in their service.3
They recommended to Massachusetts to consider the offices of governor and
lieutenant governor of that province vacant, and to make choice of a
council by the representatives in assembly, by whom the powers of
government should be exercised, until a governor of the king's appointment
should consent to govern the colony according to its charter. They
authorized the raising of continental troops, and appointed General
Washington commander in chief, to whom they gave a commission in the name
of the delegates of the united colonies. They had previously authorized
certain military measures, and especially the arming of the militia of
New-York, and the occupation of Crown Point and Ticonderoga They authorized
the emission of two millions of dollars in bills of credit, pledging, the
colonies to the redemption thereof. They framed rules for the government
of the army. They published a solemn declaration of the causes of their
taking up arms, an address to the king, entreating a change of measures,
and an address to the people of Great Britain, requesting their aid, and
admonishing them of the threatening evils of a separa-
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.
CH. I.] HISTORY OF THE REVOLUTION. 189
tion. They erected a general post-office, and organized the department for
all the colonies. They apportioned the quota, that each colony should pay
of the bills emitted by congress.1
2 Journals of Congress of 1775, p. 103.
3 Journals of Congress of 1775, p. 115.
§ 204. At a subsequent adjournment, they authorized the
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.
190 HISTORY OF THE REVOLUTION. [BOOK II.
prohibited goods.1 They recommended to the respective assemblies and
conventions of the colonies, where no government, sufficient to the
exigencies, had been established, to adopt such government, as in the
opinion of the representatives should best conduce to the happiness and
safety of their constituents in particular, and America in general, and
adopted a preamble, which stated, " that the exercise of every kind of
authority under the crown of Great Britain should be totally suppressed.2
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
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.
CH. I.] HISTORY OF THE REVOLUTION. 191
adopted the resolution for Independence; and on the 4th of July they
adopted the Declaration of Independence; and thereby solemnly published and
declared, "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, 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."
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,
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
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
1 3 Dall. 110. Per Blair J.; 9 Dane's Abridg. Appx. § 2, p. 10,
p. 12, § 5, p. 16.
192 HISTORY OF THE REVOLUTION. [BOOK II.
united together for the purpose of promoting their mutual safety and
advantage by their combined strength.1 By the very act of civil and
political association, each citizen subjects himself to the authority of
the whole; and the authority of all over each member essentially belongs to
the body politic.2 A state, which possesses this absolute power, without
any dependence upon any foreign power or state, is in the largest sense a
sovereign state.3 And it is wholly immaterial, what is the form of the
government, or by whose hands this absolute authority is exercised. It may
be exercised by the people at large, as in a pure democracy; or by a select
few, as in an absolute aristocracy; or by a single person, as in an
absolute monarchy.4 But "sovereignty" is often used in a far more limited
sense, than that, of which we have spoken, to designate such political
powers, as in the actual organization of the particular state or nation are
to be exclusively exercised by certain public functionaries, without the
control of any superior authority. It is in this sense, that Blackstone
employs it, when he says, that it is of "the very essence of a law, that it
is made by the supreme power. Sovereignty and legislature are, indeed,
convertible terms; one cannot subsist without the other."5 Now, in every
limited government the power of legislation is, or at least may be, limited
at the will of the nation; and therefore the legislature is not in an
absolute sense sovereign. It is in the same sense, that Blackstone says,
"the law ascribes to the
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.
CH. 1.] HISTORY OF THE REVOLUTION. 193
king of England the attribute of sovereignty or preeminence,"1 because, in
respect to the powers confided to him, he is dependent on noman, and
accountable to no man, and subjected to no superior jurisdiction. Yet the
king of England cannot make a law; and his acts, beyond the powers assigned
to him by the constitution, are utterly void.
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.
194 HISTORY OF THE REVOLUTION. [BOOK II.
positive or actual organization of the legislative, executive, or judicial
powers.1 Thus, the actual government of a state is frequently designated
by the name of the state. We say, the state has power to do this or that;
the state has passed a law, or prohibited an act, meaning no more than,
that the proper functionaries, organized for that purpose, have power to do
the act, or have passed the law, or prohibited the particular action. The
sovereignty of a nation or state, considered with reference to its
association, as a body politic, may be absolute and uncontrollable in all
respects, except the limitations, which it chooses to impose upon itself.2
But the sovereignty of the government, organized within the state, may be
of a very limited nature. It may extend to few, or to many objects. It
may be unlimited, as to some; it may be restrained, as to others. To the
extent of the power given, the government may be sovereign, and its acts
may he deemed the sovereign acts of the state. Nay the state, by which we
mean the people composing the state, may divide its sovereign powers among
various functionaries, and each in the limited sense would be sovereign in
respect to the powers, confided to each; and dependent in all other cases.3
Strictly speaking, in our republican
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.
CH. 1.] HISTORY OF THE REVOLUTION. 195.
forms of government, the absolute sovereignty of the nation is in the
people of the nation; and the residuary sovereignty of each state, not
granted to any of its public functionaries, is in the people of the state.1
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
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.
196 HISTORY OF THE REVOLUTION. [BOOK II.
§ 210. 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.1 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.2 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.3 So far,
as respects foreign states, the colonies were not, in the sense of the laws
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.
CH. I.] HISTORY OF THE REVOLUTION. 197
sovereign states; but mere 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.1 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.2
2 See Marshall's Hist. of Colonies, p. 483;Journals of Congress, 1774,
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.
198 HISTORY OF THE REVOLUTION. [BOOK II.
of government, on the 2d of July, 1776; but it was expressly declared, that
it should be void upon a reconciliation with Great Britain.1 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."2 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.3 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.4 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
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.
CH. I.] HISTORY OF THE REVOLUTION. 199
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 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 connexion 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.1
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
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.
200 HISTORY OF THE REVOLUTION. [BOOK II.
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."1
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."
CH. I.] HISTORY OF THE REVOLUTION. 201
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.1 The
congress of 1774, looking at the general terms of the commissions, under
which the delegates were appointed, seem to have possessed the power of
concerting such measures, as they deemed best, to redress the grievances,
and preserve the rights and liberties of all the colonies. Their duties
seem to have been principally of an advisory nature; but the exigencies of
the times led them rather to follow out the wishes and objects of their
constituents, than scrupulously to examine the words, in which their
authority was communicated.2 The congress of 1775 and 1776 were clothed
with more ample powers, and the language of their commissions generally was
sufficiently broad to embrace the right to pass measures of a national
character and obligation. The caution necessary at that period of the
revolutionary struggle rendered that language more guarded, than the
objects really in view would justify; but it was foreseen, that the spirit
of the people would eagerly second every measure adopted to further a
general union and resistance against the British claims. The congress of
1775 accordingly assumed at once (as we have seen) the exercise of some of
the highest functions of sovereignty. They took measures for national
defence and resistance; they followed up the prohibitions upon trade and
intercourse with Great Britain; they raised a national army and navy, and
authorized limited national hostilities against Great Britain; they raised
money, emitted bills of credit, and contracted debts upon national account;
1 3 Dall. R. 80, 81, 90, 91, 109, 110, 111, 117.
202 HISTORY OF THE REVOLUTION. [BOOK II.
they established a national post-office; and finally they authorized
captures and condemnation of prizes in prize courts, with a reserve of
appellate jurisdiction to themselves.
2 3 Dall. R. 91.
§ 214. The same body, in 1776, took bolder steps, and
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
CH. I.] HISTORY OF THE REVOLUTION. 203
§ 215: From the moment of the declaration of independence, if not
purposes at an antecedent period, the united colonies must be considered as
being a nation de facto, having a general government over it created, and
acting by the general consent of the people of all the colonies. The
powers of that government were not, and indeed could not be well defined.
But still its exclusive sovereignty, in many cases, was firmly established;
and its controlling power over the states was in most, if not in all
national measures, universally admitted.1 The articles of confederation,
of which we shall have occasion to speak more hereafter, were not prepared
or adopted by congress until November, 1777;2 they were not signed or
ratified by any of the states until July, 1778; and they were not ratified,
so as to become obligatory upon all the states, until March, 1781. In the
intermediate time, congress continued to exercise the powers of a general
government, whose acts
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
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
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.
204 HISTORY OF THE REVOLUTION. [BOOK II.
were binding on all the states. And though they constantly admitted the
states to be "sovereign and independent communities;"1 yet it must be
obvious, that the terms were used in the subordinate and limited sense
already alluded to; for it was impossible to use them in any other sense,
since a majority of the states could by their public acts in congress
control and bind the minority. Among the exclusive powers exercised by
congress, were the power to declare war and 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 upon national
account. In respect to foreign governments, we were politically known as
the United States only; and it was in our national capacity, as such, that
we sent and received ambassadors, entered into treaties and alliances, and
were admitted into the general community of nations, who might exercise the
right of belligerents, and claim an equality of sovereign powers and
§ 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.
CH. I.] HISTORY OF THE REVOLUTION. 205
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.
206 HISTORY OF THE REVOLUTION. [BOOK II.
storm. They accordingly grew into union, and formed one great political
body, of which congress was the directing principle and soul, &c. &c. The
truth is, that the states, individually, were not known, nor recognized as
sovereign by foreign nations, nor are they now. The states collectively
under congress, as their connecting point or head, were acknowledged by
foreign powers, as sovereign, particularly in that acceptation of the term,
which is applicable to all great national concerns, and in the exercise of
which other sovereigns would be more immediately interested." In Ware v.
Hylton, (3 Dall. 199,1) Mr. Justice Chase (himself also a revolutionary
statesman) said,: "It has been inquired, what powers congress possessed
from the first meeting in September, 1774, until the ratification of the
confederation on the 1st of March, 1781. It appears to me, that the powers
of congress during that whole period were derived from the people they
represented, expressly given through the medium of their state conventions
or state legislatures; or, that after they were exercised, they were
impliedly ratified by the acquiescence and obedience of the people, &c.
The powers of congress originated from necessity, and arose out of it, and
were only limited by events; or, in other words, they were revolutionary in
their nature. Their extent depended on the exigencies and necessities of
public affairs. I entertain this general idea, that the several states
retained all internal sovereignty; and that congress properly possessed the
rights of external sovereignty. In deciding on the powers of congress, and
of the several states before the confederation, I see but one safe rule,
namely, that all the powers actually exer-
1 S. C. 1 Peters's Cond. R. 99.
CH. 1.] HISTORY OF THE REVOLUTION. 207
cised by congress before that period were rightfully exercised, on the
presumption not to be controverted, that they were so authorized by the
people they represented, by an express or implied grant; and that all the
powers exercised by the state conventions or state legislatures were also
rightfully exercised, on the same presumption of authority from the
§ 217. In respect to the powers of the continental congress
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.
208 HISTORY OF THE REVOLUTION. [BOOK II.
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.
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.