III A CONFEDERATION OF SOVEREIGN STATES As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states, anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. (Chief Justice Marshall in Gibbons v. Ogden, 9 Wheaton, I, 187, decided in 1824.) In June 1776, the Convention of Virginia formally declared, that Virginia was a free, sovereign, and independent state; and on the 4th of July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states; and that as such, they had full power to levy war, conclude peace, &c. I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent states, &c. but that each of them was a sovereign and independent state, that is, that each of them had a right to govern itself by its own authority, and its own laws, without any controul from any other power upon earth. Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain and the United Colonies, jointly, and separately, was a civil war; but instantly, on that great and ever memorable event, the war changed its nature, and became a PUBLIC war between independent governments; and immediately thereupon ALL the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia; and all the former political connexion between Great Britain and Virginia, and also between their respective subjects, were totally dissolved; and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the present war between Great Britain and France. Vatt. lib. 3. c. 18. s. 292, 295. lib. 3. c. 5, S. 70, 72, and 73. From the 4th of July, 1776, the American States were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. On the 6th of February, 1778, the King of France entered into a treaty of alliance with the United States; and on the 8th of Oct. 1782, a treaty of Amity and Commerce was concluded between the United States and the States General of the United Provinces. I have ever considered it as the established doctrine of the United States, that their independence originated from, and commenced with, the declaration of Congress, on the 4th of July, 1776; and that no other period can be fixed on for its commencement; and that all laws made by the legislatures of the several states, after the declaration of independence, were the laws of sovereign and independent governments. (Mr. Justice Chase in Ware v. Hylton, 3 Dallas 199, pp. 224–225, decided in 1796.) The court entertains no doubt that after the 4th of October 1776, he became a member of the new society, entitled to the protection of its government, and bound to that government by the ties of allegiance. This opinion is predicated upon a principle which is believed to be undeniable, that the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence, it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state, from the time they were enacted. (Mr. Justice Cushing in McIlvaine v.Coxe, 4 Cranch, 209, 212, decided in 1808.) This Court has decided, “That there was no territory within the United States, that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States, distinct from, or independent of, some one of the states; the soil and sovereignty were as much theirs at the declaration of independence, as at this hour." ties at the commencement of the revolution; the Origin and Nature of the Constitution and (1827.) "Thus stood the rights of the par(Mr. Justice Baldwin, A General View of Government of the United States, 1837, p. 86.) The People of this State, being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign, and independent State; and having from their Ancestors derived a free and excellent Constitution of Government whereby the Legislature depends on the free and annual Election of the People, they have the best Security for the Preservation of their civil and religious Rights and Liberties. And forasmuch as the free Fruition of such Liberties and Privileges as Humanity, Civility and Christianity call for, as is due to every Man in his Place and Proportion, without Impeachment and Infringement, hath ever been, and will be the Tranquility and Stability of Churches and Commonwealths; and the Denial thereof, the Disturbance, if not the Ruin of both. Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled, That the ancient Form of Civil Government, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever. And that this Republic is, and shall forever be and remain, a free, sovereign and independent State, by the Name of the STATE OF CONNECTICUT. (Constitution of Connecticut, 1776, Ben: Perley Poore, The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, 1877, Part I, pp. 257–258.) The people inhabiting the territory formerly called the province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign and independent body-politic or State, by the name of the commonwealth of Massachusetts. (Constitution of Massachusetts, 1780, Part The Second, The Frame of Government, Ben: Perley Poore, The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, 1877, Part I, p. 960.) This alliance, league, or confederacy of the states with each other, can leave no doubt, that up to the time of the final ratification in March, 1781, each state was separately sovereign in its own inherent right; and so remained as to all power not expressly delegated, as was declared in the second article [of Confederation]. The third article is also conclusive, that the object of the alliance was to maintain and perpetuate their separate Sovereignty. This is the more manifest, when these articles are taken in connection with the alliance of the states with France.. "The essential and direct end of the present defensive alliance, is to maintain effectually, the liberty, sovereignty, and independence, absolute and unlimited, of the said United States, as well in matters of government, as of commerce." In the 11th article, the parties make a mutual guaranty; in that of France. "His most Christian majesty guaranties, on his part, to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce; also their posseesions, and the additions or conquests that their confederation may make during the war," &c. 1 Laws, 95, 98. This guaranty was fulfilled by the treaty of peace, in which "His Britannic majesty acknowledges the said United States. to wit: New Hampshire, &c., to be free, sovereign and independent states." I Laws, 196. This recognition, relating back to the separate or unanimous declarations by the states, as this Court have held it; has the same effect, as if the states had then assumed the same position, by the previous authority of the king; the treaty not being a grant, but a recognition, and subsequent ratification of their pre-existing condition; and all acts which had declared and defined it previous to the treaty, related back to 1776. Such being the relations of the several states, in their federal and foreign concerns, it follows, that as to their internal concerns, they were in the same attitude of absolute and unlimited sovereignty, before the articles of confederation, as they were afterwards, except so far as they abridged it. Each was a party to the treaty of alliance and peace, and each was bound by the guarantee to France, after the confederation was abolished, and the constitution was established, as firmly as before: the states who delayed their ratification remained so bound, for they could by no act of their own, impair the rights of France: and they were equally entitled to the effects of the treaty of peace, whether they became constituent parts of the Union, by ratifying the constitution, or remained foreign states, by not adopting it. Their state constitutions and governments, remained unimpaired by any surrender of their rights; so that of consequence, their sovereignty was perfect, so long as they continued free from any federal shackles; so the states acted, and so the people of each declared, in all their conventions, from 1776 to 1780. (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 79–81.) The problem before the Convention was to form a confederation of States which should possess the requisite vigor without being a consolidation of the States. They knew that the latter plan would be rejected by their constituents, although Alexander Hamilton and others thought that there could be no other permanent solution of the problem. The Convention sought for light and guidance in the example of other confederated governments. They looked abroad to see how other countries had extricated themselves from similar difficulties. They examined the history of all federations. Americans at that time had no need to refer to any experience but their own, if they would learn the peculiar danger of a confederation. They had too often seen the Continental Congress in the attitude of a helpless suppliant before States that made a jest of its requisitions, to suppose that any national government which could not raise a revenue of its own would be adequate to the exigencies of the Union, We are therefore principally indebted to the distresses of the Confederation for the greatest political invention of the Constitution. All previous confederacies of which history contains any record had acted on the component States, and not on individuals. The Constitution, by its provision for operating upon the individual citizen, affords a far better guarantee of permanence than the hegemony of any powerful member of the Confederation could do. The Constitution thus gave a new maxim of unquestionable value to the science of politics. The Swiss Union of 1848 imitated it in this regard, and thus finally healed the dissensions between the cantons. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, in Southern Law Review, New Series, Vol. VI. pp. 361–362.) Mr. Dickinson's A United CHAPTER III A CONFEDERATION OF SOVEREIGN STATES 1 UNDER the third resolution proposed by Richard Henry Lee on June 7, 1776, that "a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation," a committee of one from each colony was chosen on the 12th to report a form of confederation. This committee consisted of "a member from each colony" with John Dickinson of Delaware as chairman. A plan drafted by Mr. Dickinson was reported on July 12th and was considered twelve days later in the committee of the whole house and was the subject of debate from time to time until November 15, 1777, when it was adopted by the Congress with some important amendments.2 The Congress directed that "these articles shall be proposed to the legislatures of all the United States, to be considered, and if approved of by them, they are advised to authorize their delegates to ratify the same in the Congress of the United States; which being done, the same shall become conclusive." 3 A circular letter to accompany the articles, in accordance with this resolution, was adopted on November 17, 1777. A form of ratification was adopted June 26, 1778. At various dates the States approved the Articles in the manner recommended by the Congress, the last State being Maryland, whose delegates signed on behalf of that State, March 1, 1781. Thereupon the United States had, for the first time, a form of government in law as well as in fact and on the succeeding day the Congress met for the first time under this form of government. It may be observed in this connection, before proceeding to an examination of the successive steps by which the Articles of Confederation assumed form and shape, that the Congress, during this period, was intent upon winning the independence which the Articles were to regulate, and they were therefore of secondary importance; that, for one reason or another, the membership of the committee changed so that, at the date of their adoption by Congress, only one of the original members of the committee was still a member thereof and that even he was absent on that occasion. Changing membership, changing conditions, the differences between the States and the difficulty of reconciling them consumed time and patience, with the inevitable result that 1 Journals of the Continental Congress, Vol. v, pp. 546–554. 2 Ibid., Vol. ix, pp. 907-928. 3 Ibid., p. 925. States the Articles of Confederation were a compromise, just as the Constitution of 1787 creating the more perfect Union of the States was a compromise. Large In the Congress as in the Convention, the large States wanted a larger influence and Small than the smaller, to which the reply was then, as now in the society of nations: a little colony has its all at stake as well as a great one; our identity is a precious thing; we do not propose to be swallowed up. In addition to this difference of view as to the rights of the States, large and small, the motives of the sections were questioned and a lack of confidence expressed, impossible to overcome on the moment, and indeed overcome in the Constitutional Convention only after years of suffering in a common cause when the statesmen of all the sections had learned to know, and therefore rightly to appreciate one another. New England, which may be said to have brought about the Revolution, was not popular and was viewed with suspicion and jealousy, Benjamin Harrison of Virginia saying that "the Yankees" ruled as absolutely in Congress "as the Grand Turk in his dominions." 1 This idea did not stop with Virginia, but pervaded the south, for Edward Rutledge of South Carolina, wrote: The Force of their Arms I hold exceeding Cheap, but I confess I dread their over-ruling Influence in Council. I dread their low Cunning and those Principles which Men without Character and without Fortune in general possess, which are so captivating to the lower class of Mankind.2 New England, on its part, viewed its neighbors to the south with equal suspicion and distrust, not unmixed with contempt, if John Adams is to be credited, who says of them: The dons, the bashaws, the grandees, the patricians, the sachems, the nabobs, call them by what name you please, sigh, and groan, and fret, and sometimes stamp, and foam, and curse, but all in vain.3 In view of such circumstances the wonder is that the confederation took place, not that the instrument of confederation was faulty. The Two the Articles The Articles exist in two forms, in the draft in Dickinson's handwriting, Forms of laid before the Congress on July 12, 1776, and in the amended form in which Dickinson's draft was approved by the Congress on November 15, 1777, recommended to the States for their ratification and ultimately ratified by them. The essentials of the completed instrument are contained in Dickinson's draft, which suggests a familiarity with Franklin's project, notably 1 E. P. Oberholtzer, Robert Morris, 1903, p. 37. 2 To John Jay, June 29, 1776. The Correspondence and Public Papers of John Jay, H. P. Johnston ed., Vol. i, p. 67. 3 To Patrick Henry, June 3, 1776. The Works of John Adams, C. F. Adams ed., Vol. ix, p. 387. 4 The dates of ratification were: Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, Virginia, South Carolina, July 9, 1778- North Carolina, July 21, 1778- Georgia, July 24, 1778 New Jersey, November 26, 1778 - Delaware, February 22, 1779 - Maryland, March 1, 1781. |