Joseph Story: History of the Revolution and of the Confederation

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* NOW - Buy this resource online! Click here * History of the Revolution and of the Confederation§ 198.§ 199.§ 200.§ 201.§ 202.§ 203.§ 204.§ 205.§ 206.§ 207.§ 208.§ 209.§ 210.§ 211.§ 212.§ 213.§ 214.§ 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.§ 216.§ 217. FOOTNOTES
   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.