Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
History of the Revolution and of the Confederation
§ 198. WE have now completed our survey of the origin and political history of the American colonies up to the period of the Revolution. We have examined the more important coincidences and differences in their forms of government, in their laws, and in their political institutions. We have presented a general outline of their actual relations with the parent country; of the rights, which they claimed; of the dependence, which they admitted; and of the controversies, which existed at this period, in respect to sovereign powers and prerogatives on one side, and colonial rights and liberties on the other.
§ 199. We are next to proceed to an historical review of the origin of that union of the colonies, which led to the declaration of independence; of the effects of that event, and of the subsequent war upon the political character and rights of the colonies; of the formation and adoption of the articles of confederation; of the sovereign powers antecedently exercised by the continental congress; of the powers delegated by the confederation to the general government; of the causes of the decline and fall of the confederation; and finally, of the establishment of the present constitution of the United States. Having disposed of these interesting and important topics, we shall then be prepared to enter upon the examination of the details of that constitution, which has justly been deemed one of the most profound efforts of human wisdom, and which (it is believed) will awaken our admiration, and warm our affection more and more, as its excellencies are unfolded in a minute and careful survey.
§ 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 cooperation 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.1 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;2 and having chosen officers, they adopted certain fundamental rules for their proceedings.
§ 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.3 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 1781.4
§ 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, etc. 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 merchandise, etc. to Great Britain, Ireland, and the West Indies ought to cease, unless the grievances of America are redressed before that time.”5 They adopted a declaration of rights, not differing in substance from that of the congress of 1765,6 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 grievances, and requesting aid and redress.
§ 203. In May, 1775, a second congress of delegates met from all the states.7 These delegates were chosen, as the preceding had been, partly by the popular branch of the state legislatures, when in session; but principally by conventions of the people in the various states.8 In a few instances the choice by the legislative body was confirmed by that of a convention, and e converso.9 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.10 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.11 They recommended to Massachusetts to consider the offices of governor and lieutenant governor of that province vacant, and to make choice of a council 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.12
§ 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.13 They authorized the grant of commissions to capture armed vessels and transports in the British service; and recommended the creation of prize courts in each colony, reserving a right of appeal to congress.14 They adopted rules for the regulation of the navy, and for the division of prizes and prize money.15 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.16 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.17 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.”18
§ 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 10th 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.”19 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.20 On the 28th of June the committee appointed to prepare a Declaration of Independence brought in a draft. On the 2d of July, congress adopted the resolution for Independence; and on the 4th of July they adopted the Declaration of Independence; and thereby solemnly 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.21 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,22 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 mutual safety and advantage by their combined strength.23 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.24 A state, which possesses this absolute power, without any dependence upon any foreign power or state, is in the largest sense a sovereign state.25 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.26 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, indeed, convertible terms; one cannot subsist without the other.”27 Now, in every limited government the power of legislation is, or at least may be, limited at the will of the nation; and therefore the legislature is not in an absolute sense sovereign. It is in the same sense, that Blackstone says, “the law ascribes to the king of England the attribute of sovereignty or preeminence,”28 because, in respect to the powers confided to him, he is dependent on no man, and accountable to no man, and subjected to no superior jurisdiction. Yet the king of England cannot make a law; and his acts, beyond the powers assigned to him by the constitution, are utterly void.
§ 208. In like manner the word “state” is used in various senses.* In its most enlarged sense it means the people composing a particular nation or community. In this sense the state means the whole people, united into one body politic; and the state, and the people of the state, are equivalent expressions.29 Mr. Justice Wilson, in his Law Lectures, uses the word “state” in its broadest sense. “In free states,” says he, “the people form an artificial person, or body politic, the highest end noblest, that can be known. They form that moral person, which in one of my former lectures,30 I described, as a complete body of free, natural persons, united together for their common benefit; as having an understanding and a will; as deliberating, and resolving, and acting; as possessed of interests, which it ought to manage; as enjoying rights, which it ought to maintain; and as lying under obligations, which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of STATE.”31 But there is a more limited sense, in which the word is often used, where it expresses merely the positive or actual organization of the legislative, executive, or judicial powers.32 Thus, the actual government of a state is frequently designated by the name of the state. We say, the state has power to do this or that; the state has passed a law, or prohibited an act, meaning no more than, that the proper functionaries, organized for that purpose, have power to do the act, or have passed the law, or prohibited the particular action. The sovereignty of a nation or state, considered with reference to its association, as a body politic, may be absolute and uncontrollable in all respects, except the limitations, which it chooses to impose upon itself.33 But the sovereignty of the government, organized within the state, may be of a very limited nature. It may extend to few, or to many objects. It may be unlimited, as to some; it may be restrained, as to others. To the extent of the power given, the government may be sovereign, and its acts may he deemed the sovereign acts of the state. Nay the state, by which we mean the people composing the state, may divide its sovereign powers among various functionaries, and each in the limited sense would be sovereign in respect to the powers, confided to each; and dependent in all other cases.34 Strictly speaking, in our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state.35
§ 209. There is another mode, in which we speak of a state as sovereign, and that is in reference to foreign states. Whatever may be the internal organization of the government of any state, if it has the sole power of governing itself and is not dependent upon any foreign state, it is called a sovereign state; that is, it is a state having, the same rights, privileges, and powers, as other independent states. It is in this sense, that the term is generally used in treatises and discussions on the law of nations. A full consideration of this subject will more properly find place in some future page.36
§ 210. Now it is apparent, that none of the colonies before the Revolution were, in the most large and general sense, independent, or sovereign communities. They were all originally settled under, and subjected to the British crown.37 Their powers and authorities were derived from, and limited by their respective charters. All, or nearly all, of these charters controlled their legislation by prohibiting them from making laws repugnant, or contrary to those of England. The crown, in many of them, possessed a negative upon their legislation, as well as the exclusive appointment of their superior officers; and a right of revision, by way of appeal, of the judgments of their courts.38 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 free born 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.39 So far, as 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.40 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.41
§ 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.42 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 government. 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.”43 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.44 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.”45 But the declaration of the 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.46 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.47 It was an act not 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 government, 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 they 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 connexion with and allegiance to Great Britain. And this, not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice.48
§ 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 statesman49 used the following language: “This admirable manifesto (i.e. the declaration of independence) sufficiently refutes the doctrine of the individual sovereignly 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, etc. do, in the name, etc. of the good people of these colonies, solemnly publish, etc. 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.”50
§ 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 cooperation. 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.51 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.52 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 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 overall 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.53
§ 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 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.54 The articles of confederation, of which we shall have occasion to speak more hereafter, were not prepared or adopted by congress until November, 1777;55 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;”56 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 powers 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 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.57
§ 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 (3 Dall. 419, 470),58 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 (3 Dall. R. 54),59 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 the union, the centre of force, and the sun of the political system. Congress raised armies, fitted out a navy, and prescribed rules for their government, etc. etc. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America, etc. etc. The danger being imminent and common, 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, etc. etc. 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 (3 Dall. 199),60 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, etc. 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 also rightfully exercised, on the same presumption of authority from the people.”61
§ 217. In respect to the powers of the continental congress exercised before the adoption of the articles of confederation, few questions were judicially discussed during the revolutionary contest; for men had not leisure in the heat of war nicely to scrutinize or weigh such subjects; inter arma silent leges. The people, relying on the wisdom and patriotism of congress, silently acquiesced in whatever authority they assumed. But soon after the organization of the present government, the question was most elaborately discussed before the Supreme Court of the United States, in a case calling for an exposition of the appellate jurisdiction of congress in prize causes before the ratification of the confederation.62 The result of that examination was, as the opinions already cited indicate, that congress, before the confederation, possessed, by the consent of the people of the United States, sovereign and supreme powers for national purposes; and among others, the supreme powers of peace and war, and, as an incident, the right of entertaining appeals in the last resort in prize causes, even in opposition to state legislation. And that the actual powers exercised by congress, in respect to national objects, furnished the best exposition of its constitutional authority, since they emanated from the representatives of the people, and were acquiesced in by the people.
1. 1 Journ. of Cong. 2, 3. &c. 27, 45; 9 Dane’s Abridg. App. §5, p. 16, §10, p. 21.
2. All the States were represented, except Georgia.
3. 9 Dane’s Abridg. App. P. 1, §5, p. 16, §13, p. 23.
4. Sergeant on Const Introd. 7, 8, (2d ed.)
5. 1 Jour. of Cong. 21.
6. See ante, note, p. 179.
7. Georgia did not send delegates until the 15th of July, 1775, who did not take their seats until the 13th of September.
8. 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.
9. Journals of Congress of 1775, p. 73 to 79.
10. Journals of Congress of 1775, p. 103.
11. Journals of Congress of 1775, p. 115.
12. Journals of Congress of 1775, p. 177.
13. Journals of Congress of 1775, p. 231, 235, 279.
14. Journals of Congress of 1775, p. 259, 260, &c.
15. Journals of Congress of 1776, p. 13.
16. Journals of Congress of 1776, p. 106, 107,118,119.
17. Journals of Congress of 1776, p. 122, 123.
18. Journals of Congress of 1776, p. 166, 174.
19. Journals of Congress of 1776, p. 205, 206.
20. Journals of Congress of 1776, p. 207.
21. 3 Dall. 110. Per Blair J.; 9 Dane’s Abridg. Appx. §2, p. 10, §3, p. 12, §5, p. 16.
22. 1 Bl. Comm. 49; 2 Dall. 471. Per Jay C. J.
23. Vattel, B. 1, ch. 1, §1; 2 Dall. 455. Per Wilson J.
24. Vattel, B. 1, ch. 1, §2.
25. 2 Dall. 456, 457. Per Wilson J.
26. Vattel, B. 1, ch. 1, §2, 3.
27. 1 Bl. Comm. 16. See also 1 Tucker’s Black. Comm. App. note A., a commentary on this clause of the Author’s text.
28. 1 Bl. Comm. 241.
29. Penhallow v. Doane, 1 Peters’s Cond. Rep. 37, 38, 39; 3 Dall. R. 93, 94. Per Iredell J. Chisholm v. Georgia, 2 Dall. 455. Per Wilson J. S. C. 2 Cond. Rep. 656, 670; 2 Wilson’s Lect. 120; Dane’s Appx. §50, p. 63.
30. 1 Wilson’s Lect. 304, 305.
31. 2 Wilson’s Lect. 120, 121.
32. Mr. Madison, in his elaborate Report in the Virginia legislature in January, 1800, adverts to the different senses, in which the word “state” is used. He says, “It is indeed true, that the term “states” is sometimes used in a vague sense, and sometimes in different senses, according to the subject, to which it is applied. Thus it sometimes means the separate sections of territory, occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies, as organized into those particular governments; and lastly, it means the people, composing those political societies in their highest sovereign capacity.”
33. 2 Dall. 433; Iredell J. Id. 455, 456. Per Wilson J.
34. 3 Dall. 93. Per Iredell J. 2 Dall. 455, 457. Per Wilson J.
35. 2 Dall. 471, 472. Per Jay C. J.
Mr. J. Q. Adams, in his Oration on the 4th of July, 1831, published after the preparation of these Commentaries, uses the following language: “It is not true, that there must reside in all governments an absolute, uncontrollable, irresistible, and despotic power; nor is such power in any manner essential to sovereignty. Uncontrollable power exists in no government on earth. The sternest despotisms in any region and in every age of the world, arc and have been under perpetual control. Unlimited power belongs not to man; and rotten will be the foundation of every government, leaning upon such a maxim for its support. Least of all can it be predicated of a government, professing to be founded upon an original compact. The pretence of an absolute, irresistible, despotic power, existing in every government somewhere, is incompatible with the first principles of natural right.”
36. Dr. Rush, in a political communication, in 1786, uses the term “sovereignty” in another, and somewhat more limited sense.a He says, “The people of America have mistaken the meaning of the word ‘ sovereignty.’ Hence each state pretends to be sovereign. In Europe it is applied to those states, which possess the power of making war and peace of forming treaties, and the like. As this power belongs only to congress, they are the only sovereign power in the United States. We commit a similar mistake in our ideas of the word ‘independent.’ No individual state, as such, has any claim to independence. She is independent only in a union with her sister states in congress.” Dr. Barton, on the other hand, in a similar essay, explains the operation of the system of the confederation in the manner, which has been given in the text.b
a. 1 Amer. Museum, 8, 9.
b. 1 Amer. Museum, 13, 14
37. 2 Dall. 471. Per Jay C. J.
38. See Marshall’s Hist. of Colonies, p. 483;Journals of Congress, 1774, p. 29.
39. Journal of Congress 1774 p. 27, 29, 38, 39; 1775, p. 152, 156; Marshall’s Hist. of Colonies, ch. 14 p. 412, 483.
40. 1 Chalmers’s Annals, 686, 678; 2 Dall. 470. Per Jay C. J.
41. Journal of Congress, 1776, p. 282; 2 Haz. Coll. 591; Marsh. Colonies, App. No. 3, p. 469.
42. 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. 16).
43. 2 Belk. N. Hamp. ch. 25, p. 306, 308, 310; 1 Pitk. Hist. 351, 355.
44. Stokes’s Hist. Colon. 51,75.
45. Stokes’s Hist. Colon. 105; 1 Pitk. Hist. 355.
46. Journal, 1776, p. 241; Journal, 1774, p. 27, 45.
47. 2. Dall. 470, 471. Per Jay C. J.; 9 Dane’s Abridg. App. §12, 13, p. 23, 24.
48. 2 Dallas R. 470.
49. Mr. Charles Cotesworth Pinckney.
50. 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 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.”
51. 3 Dall. R. 80, 81, 90, 91, 109, 110, 111, 117.
52. 3 Dall. R. 91.
53. This whole subject is very amply discussed by Mr. Dane in his Appendix to the 9th 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.
54. See Penhallow v. Doane, 3 Dall. R. 54; Ware v. Hylton, 3 Dall. 199, per Chase J. See the Circular Letter of Congress, 13th Sept. 1779; 5 Jour. Cong. 341, 348, 349.
55. Jour. of Cong. 1777, p. 502.
56. See Letter of 17th Nov. 1777, by Congress, recommending the articles of confederation; Journal of 1777, p. 513, 514.
57. 1 Amer. Museum, 15; I Kent. Comm. 197, 198, 199.
58. S. C. 1 Peters’s Cond. R. 635.
59. S. C. 1 Peters’s Cond. Rep. 21.
60. S. C. 1 Peters’s Cond. R. 99.
61. See also 1 Kent. Comm. Lect. 10, p. 196; President Monroe’s Exposition and Message, 4th of May, 1822, p. 8, 9, 10, 11.
62. Penhallow v. Doane, 3 Dall. 54, 80, 83, 90, 91, 94, 109, 110, 111, 112, 117; Journals of Congress, March, 1779, p. 86 to 88; 1 Kent. Comm. 198, 199.