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ment 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 freeborn 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.2 'respects foreign states, the colonies were not, in the sense of the laws of nations, 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.3 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.*
§ 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.5 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 govern
1 See Marshall's Hist. of Colonies, p. 483; Journals of Congress, 1774, p. 29. 2 Journal of Congress, 1774, p. 27, 29, 38, 39; 1775, p. 152, 156; Marshall's Hist. of Colonies, ch. 14, p. 412, 483.
8 1 Chalmers's Annals, 686, 687; 2 Dall. 470, per Jay, C. J.
↑ Journal of Congress, 1776, p. 282; 2 Haz. Col. 591; Marsh. Colonies, App. No. 3, p. 469.
5 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.
ment. 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.” 1 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.2 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."3 But the declaration of 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 not an act 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 one, 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 any acted, it was in pursuance of the recommendation of Congress. It was, therefore, the achievement of the whole for the benefit of the whole. The people of the united colonies made the united colonies free and independent States, and absolved them from 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
1 2 Belk. N. Hamp. ch. 25, p. 306, 308, 318; 1 Pitk. Hist. 351, 355.
2 Stokes's Hist. Colon. 51, 75.
8 Stokes's Hist. Colon. 105; 1 Pitk. Hist. 355.
4 Journal, 1776, p. 241; Journal, 1774, pp. 27, 45.
5 2 Dall. 470, 471, per Jay, C. J.; 9 Dane's Abridg. App. § 12, 13, p. 23, 24.
Britain. And this, not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice.1
§ 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 (that is, 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, &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 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." 3
1 2 Dallas, R. 470.
2 Mr. Charles Cotesworth Pinckney.
8 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 rep
§ 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 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. Thei 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; they established a national
resentatives, constituted themselves one moral person before the face of their fellowThe 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.
post-office; and finally they authorized captures and condemnation of prizes in prize courts, with a reserve of appellate jurisdiction to themselves.
§ 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 over all 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
§ 215. From the moment of the declaration of independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto, having a gen
1 This whole subject is very amply discussed by Mr. Dane in his Appendix to the ninth 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.