1

§ 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.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 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.

23 Dall. R. 91.

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 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,

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

if not for most 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. 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 were binding on all the States. And though they constantly admitted the States to be "sovereign and independent communities," 3 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 powres 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

evidence of a public nature, which has not hitherto been presented in a coudensed 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. 190, 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.

8 See Letter of 17th Nov., 1777, by Congress, recommending the Articles of Confederation; Journal of 1777, pp. 513, 514.

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 prerogatives.1

§ 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, 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 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, 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 coextensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the centre of e, and the sun of the political system. Congress raised armitted out a navy, and prescribed rules for their government, &c. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America, &c. The danger being imminent and common, 11 Amer. Museum, 15; 1 Kent, Comm. 197, 198, 199. 2 3 Dall. 419, 470.

3

8 3 Dall. 54.

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 storm. They accordingly grew into union, and formed one great political body, of which Congress was the directing principle and soul, &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, 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 exercised 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 rightfully exercised on the same presumption of authority n the people." 2

§ 217. In respect to the powers of the Continental Congress exercised before the adoption of the Articles of Confederation,

1 3 Dall. 199.

2 See also 1 Kent, Comm. Lect. 10, p. 196; President Monroe's Exposition and Message, 4th of May, 1822, pp. 8, 9, 10, 11.