LECTURE II. So much, young gentlemen, for the oneness of the colonies as such. We will now proceed to another singular position of the learned commentator on the constitution, in furtherance of his favourite theory of the oneness of the American people. After having attempted to sustain his views of the anti-revolutionary state of the colonies, he proceeds to consider their condition during the throes of the revolution, and contends that neither anterior to the declaration of independence, nor subsequent to that event, were the former colonies "sovereign and independent states in the sense in which the term sovereign is applied to states." As the positions of judge Story are very frequently ingeniously insinuated, rather than distinctly announced, and as I am unwilling to misstate his opinions, or do injustice to his arguments, I shall insert the whole of this passage in a note. (a) (a) § 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.* The congress 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 ;t and having chosen officers, they adopted certain fundamental rules for their proceedings. * 1 Journ. of Cong. 2, 3, &c. 27, 45; 9 Dane's Abridg. App. § 5, p. 16, § 10, p. 21. † All the states were represented, except Georgia. In the commencement of this sketch of the state of the colonies during the revolution, we are told (§ 200) that a congress was recommended by Massachusetts in 1774; § 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. 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.t § 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 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 merchandize, &c. to Great Britain, Ireland, and the West Indies ought to cease, unless the grievances of America are redressed before that time." They adopted a declaraof rights, not differing in substance from that of the congress of 1765,|| 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 grie vances, and requesting aid and redress. § 203. In May 1775, a second congress of delegates met from all the states.§ These delegates were chosen, as the preceding had * 9 Dane's Abridg. App. P. 1, §5, p. 16, § 13, p. 23. † Sergeant on Const. Introd. 7, 8, (2d ed.) 1 Jour. of Cong. 21. See ante, note, p. 179. Georgia did not send delegates until the 15th of July, 1775, who did not take their seats until the 13th of September. which accordingly met on the 4th of September, and (§ 201) that thus was organized under the auspices and with the consent of the people, acting directly in their pri been, partly by the popular branch of the state legislatures, when in session; but principally by conventions of the people in the various states. In a few instances the choice of the legislative body was confirmed by that of a convention, and e converso. 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. 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.§ They recommended to Massachusetts to consider the offices of governor and lieutenant governor of that province vacant, and to make choice of a counsel 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 separation. 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.|| § 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 of government. They authorized the grant of commissions to capture armed vessels and transports in the British service; and recom *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. † Journals of Congress of 1775, p. 73 to 79. Journals of Congress of 1775, p. 103. Journals of Congress of 1775, p. 231, 235, 279. mary sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated, the first general or national government, mended the creation of prize courts in each colony, reserving a right of appeal to congress.* They adopted rules for the regulation of the navy, and for the division of prizes and prize money.† 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. 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 prohibited goods. § 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." § 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 tenth 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." 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.* On the 28th of June the committee appointed to prepare a Declaration of Independence brought in a draught. On the second of July, congress adopted the resolution for Independence; and on the 4th of July they adopted the Declaration of Independence; and thereby solemnly ** * Journals of Congress of 1775, p. 259, 260, &c. Journals of Congress of 1776, p. 106, 107, 118, 119. Journals of Congress of 1776, p. 166, 174. ** Journals of Congress of 1776, p. 207. and "that 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 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." § 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.* 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,f the absolute right to govern. A state or nation is a body politic, or society of men, united together for the purpose of promoting their mutal safety and advantage by their combined strength. 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.§ A state, which possesses this absolute power, without any dependence upon any foreign power or state, is in the largest sense a sovereign state.|| 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. 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, * 3 Dall. 110. Per Blair J.; 9 Dane's Abridg. Appx. §2, p. 10, § 3, p. 12, § 5, p. 16. † 1 Bl. Comm. 49; 2 Dali. 471. Per Jay C. J. Vattel, B. 1, ch. 1, § 1; 2 Dall. 455. Per Wilson J. Vattel, B. 1, ch. 1, § 2. 2 Dall. 456, 457. Per Wilson J. Vattel, B. 1, ch. 1, § 2, 3. |