Page images


tions, their religious views and social relations, were so divergent, the one from the other, that it was easy to find more points of difference between them than of similarity and comparison. Besides, commercial intercourse between the distant colonies, in consequence of the great extent of their territory, the scantiness of the population,' and the poor means of transportation at the time, was so slight that the similarity of thought and feeling, which can be the result only of a constant and thriving trade, was wanting.

The solidarity of interests, and what was of greater importance at the time, the clear perception that a solidarity of interests existed, was therefore based mainly on the geographical situation of the colonies. Separated by the ocean, not only from the mother country, but from the rest of the civilized world, and placed upon a continent of yet unmeasured bounds, on which nature had lavished every gift, it was impossible that the thought should not come to them, that they were, indeed, called upon to found a "new world." They were not at first wholly conscious of this, but a powerful external shock made it soon apparent how widely and deeply this thought had shot its roots. They could not fail to have confidence in their own strength. Circumstances had long been teaching them to act on the principle, "Help thyself." Besides, experience had shown them, long years before, that-even leaving the repeated attacks on their rights out of the question-the leadingstrings by which the mother country sought to guide their steps obstructed rather than helped their development, and this in matters which affected all the colonies alike.


Hence, from the very beginning, they considered the struggle their common cause. And even if the usurpa


( 'The census of 1790 gives the population, slaves included, at 3,929,827. The duty controversies in Massachusetts and James Otis's celebrated speech against the writs of assistance (Feb., 1761) found it is, true, no echo whatever in the rest of the colonies. As early as June, 1765, however, Otis induced the Massachusetts assembly to reply to the Stamp

tions of parliament made themselves felt in some parts of the country much more severely than in others, the principle involved interested all to an equal extent.

Massachusetts recommended, in 1774, the coming together of a general congress, and on September 4, of the same year, "the delegates, nominated by the good people of these colonies," met in Philadelphia.2

Thus, long before the colonies thought of separation from the mother country, there was formed a revolutionary body, which virtually exercised sovereign power. How far the authority of this first congress extended, according to the instructions of the delegates, it is impossible to determine with certainty at this distance of time. But it is probable that the original intention was that it should consult as to the ways and means best calculated to remove the grievances and to guaranty the rights and liberties of the colonies, and should propose to the latter a series of resolutions, furthering these objects. But the force of circumstances at the time compelled it to act and order immediately, and the people, by a consistent following of its orders, approved this transcending of their written instructions. The congress was therefore not only a revolutionary body from its origin, but its acts assumed a thoroughly revo

Act by the calling of a congress. A congress, in fact, met on Oct. 7 of the same year in New York, but only nine of the colonies were represented in it.

1 Story, Commentaries on the Constitution of the United States, I., § 200. This peculiar designation, which the congress used in its formal enunciations, was not without significance in after years.

All the colonies, with the exception of Georgia, were represented.


Story, Comm. I., § 201, maintains that this congress had sovereign power both de jure and de facto. He bases his view on the fact that a part of the delegates were nominated directly by the people. But he forgets that the view that the people alone are sovereign and the only source of legitimate power, was not at that time a recognized principle of law in America. Compare Cooley on Constitutional Limitations, p. 7.


lutionary character. The people, also, by recognizing its authority, placed themselves on a revolutionary footing, and did so not as belonging to the several colonies, but as a moral person; for to the extent that congress assumed power to itself and made bold to adopt measures national in their nature, to that extent the colonists declared themselves prepared henceforth to constitute one people, inasmuch as the measures taken by congress could be translated from words into deeds only with the consent of the people.2

This state of affairs essentially continued up to March 1, 1781. Until that time, that is, until the adoption of the articles of confederation by all the states, congress continued a revolutionary body, which was recognized by all the colonies as de jure and de facto the national government, and which as such came in contact with foreign powers and entered into engagements, the binding force of which on the whole people has never been called in question. The individual colonies, on the other hand, considered themselves, up to the time of the Declaration of Independence, as legally dependent upon England and did not take a single step which could have placed them before the mother country or the world in the light of de facto sovereign states. They remained colonies until the " representatives of the United States" "in the name of the good people of these colonies " solemnly declared "these united colonies" to be "free and independent states."" The transformation of the colonies into "states"


[ocr errors]

The powers of congress originated from necessity, and arose out of and were only limited by events, or, in other words, they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs." Jay, in Ware v. Hylton, Dallas' Reports, III., p. 232; Curtis, Decisions of the Supreme Court of the United States, I., p. 176.

2 Story's Commentaries, I., § 213. This view was shared by chief justice Jay and justices Chase and Patterson, all very distinguished statesmen of the Revolution. Story, Com., § 216.

›“We, therefore, the representatives of the United States, do, in the

was, therefore, not the result of the independent action of the individual colonies. It was accomplished through the "representatives of the United States;" that is, through the revolutionary congress, in the name of the whole people. Each individual colony became a state only in so far as it belonged to the United States and in so far as its population constituted a part of the people. The thirteen colonies did not, as thirteen separate and mutually independent commonwealths, enter into a compact to sever the bonds which connected them with their common mother country, and at the same time to proclaim the act in a common mauifesto to the world; but the "one people" of the united colonies dissolved that political connection with the English nation, and proclaimed themselves resolved, henceforth, to constitute the one perfectly independent people of the United States. The Declaration of Independence did not

name of the good people of these colonies, solemnly publish

that these united colonies are, and of right ought to be, free and independent states." Declaration of Independence. Compare also C. C. Pinckney's speech in the house of representatives of South Carolina, on the 18th of January, 1788. Elliott, Debates, IV., p. 301; and Ramsay, History of the United States, III., pp. 174 and 175.

"The states have their status in the Union, and they have no other legal status. . . . . The Union is older than any of the states, and in fact, it created them as states. Originally some independent [i. e., independent of one another] colonies made the Union; and, in turn, the Union threw off their old dependence for them and made them states such as they are. Not one of them ever had a state constitution independent of the Union." Lincoln's message, July 4, 1861. See also King's speech in the constitutional convention, June 19, 1787. Madison Papers. Elliott, Deb., V., p. 212.

2 The Declaration of Independence says: "When it becomes neces sary for one people to dissolve the political bonds which have connected them with another people," etc. Calhoun's view that the colonies, when they separated from England, remained completely independent of one another, because they were in no wise dependent on one another as colonies, is not at all tenable. Calhoun relies, in this instance, as in so many others, on a logical abstraction, undisturbed by the contradic-. tion of the most undeniable historical facts. See Calhoun, A Disquisition on Government, Works, I., p. 190. Besides, Calhoun is here, as in his


create thirteen sovereign states, but the representatives of the people declared that the former English colonies, under the name which they had assumed of the United States of America, became, from the fourth day of July, 1776, a sovereign state and a member of the family of nations, recognized by the law of nations; and further, that the people would support their representatives with their blood and treasure, in their endeavor to make this declaration a universally recognized fact. Neither congress nor the people relied in this upon any positive right belonging either to the individual colonies or to the colonies as a whole. Rather did the Declaration of Independence and the war destroy all existing political jural relations, and seek their moral justification in the right of revolution. inherent in every people in extreme emergencies.


It is important to keep these points in view, for they became of the very highest importance in later years, remote as it was from the congresses of 1774 and 1775, and in part from that of 1776, to subject these subtle questions to an exhaustive investigation-Inter arma silent leges. Congress had not the time to submit its powers to a painful and minute analysis. The moment that resistance to the mother country ceased to be confined to legal and

nullification doctrine, Jefferson's disciple. He accepts throughout the premises of his master. Unlike the latter, however, he does not stop half way, but carries them out, with the most relentless logic, to their remotest conclusion. Jefferson considered the Union an alliance formed only for the purpose of shaking off the control of the mother country, and one which should have ceased "of itself" when that object was attained. Says he: "The alliance between the states under the old articles of confederation, for the purpose of joint defense against the aggressions of Great Britain, was found insufficient, as treaties of alliance generally are, to enforce compliance with their mutual stipulations; and these once fulfilled, that bond was to expire of itself, and each state to become sovereign and independent in all things." See also Curtis, History of the Constitution, I., p. 39, etc.; Farrar, Manual of the Constitution, pp. 50, 51; Hurd, Law of Freedom and Bondage, I., p. 408, and II., p. 354.

« PreviousContinue »