Page images

priate agents, in their domestic, federal, or foreign relations, shows that this declaration was so received and understood by the whole country; from the time it was made, till the adoption of the constitution. Each of those states which had not before done it, proceeded to institute government for itself, by written constitutions; declaring all power to be inherent in the people of the state, and denying the existence of any other, with the exception of Connecticut and Rhode Island. Those states, which had previously adopted constitutions, continued to act under them, without a doubt felt or expressed, that the governments so organized, were as competent, and in all respects on the same footing, as those which were constituted after the 4th of July, 1776. Vide 4 Cr. 212, 13.

The two states, which were exceptions, furnish a still more conclusive illustration of this universal opinion. Connecticut had no constitution till 1818; Rhode Island has none to this day: both states continued to exercise their legislative power, under their respective charters from the king, in virtue of his prerogative. The people of those states had never assembled in convention to abolish the British government, or to institute one of their own; they made no separate declaration of independence, or conferred any new authority on their state legislature; but they silently acquiesced in the course of legislation, founded on the unquestioned existence of a supreme sovereign legislative power, by which legislative usage was, by the tacit assent of the people, a constitution in effect. Herein they departed from the great principle of the American system of government, which was to define, limit, and distribute the powers by written constitutions, instead of doing it according to usage and precedent; but this very departure shows the force of a principle fundamental in all free states and governments; that all power emanates from the people of the state. That legislative usage, by the implied consent of the people, makes such usage as much a supreme law; and to all intents and purposes, the constitution of a state; as if one had been ordained and established by an instrument in writing, adopted in a convention of the people, by their expressly delegated authority. So this Court have held the usage of Connecticut, 3 Dall. 398, 400, &c., and of Rhode Island, 2 Pet. 656, 7, under their respective charters; and their political condition, by the results of the revolution, as defined in 4 Wh. 661, is precisely the same as that of the state of Great Britain. The usage of the legislative body, is the only supreme law of the land, and the only evidence of the constitution of the state. That the force of such usage in these two states, was in no wise impaired by the declaration of independence in congress, is therefore a self-evident truth; and as they had made no separate declaration, either in form, or in any writing constituting government, it is as a political or judicial truth equally clear, that the declaration by congress, was made by the delegates of these states, in the name and behalf of each, of the rights and powers of each, as well as the others of the thirteen, by the unanimous act of all. So it was considered by congress, from the 4th of July onwards; all their

proceedings show that their declaration of rights in 1776, differed from their declaration of rights in 1774, only in this. The latter referred to the rights of the colonies, when first united, to obtain a redress of their grievances, by petition and remonstrance; an appeal as British subjects for justice, by the principles of the English constitution, magna charta, and the common law: in the hope of reconciliation, by the repeal of the obnoxious laws, and a disavowal of what the colonists held to be unconstitutional power. The former referred to the then existing rights and powers of the states and people, resulting from the principle declared in 1774: which, after all hope of redress or conciliation had became extinct, and the appeal to arms taken by both parties, were in 1776 applied to the states; who being ipso facto independent, by the suppression of the authority of Great Britain, the fact was declared and proclaimed, together with its effect on the condition of the several states. The people of the states were no longer the subjects of the king, but were thenceforth the citizens of a free state, owing allegiance to it, but to no other state or power; and were thereby on an equal station with the other powers of the earth, as states.

In October, 1776, congress directed that every officer should swear, that “I do acknowledge the thirteen United States of America, namely, New Hampshire, &c. to be free, independent, and sovereign states, and declare that the people thereof owe no allegiance to George the Third, king of Great Britain," 2 Journ. 400. That allegiance is the unerring test of sovereignty, existing in the state to whom it is due, is a truth too evident to be discussed or denied.

In November, congress agreed on the frame of the articles of confederation; and in their circular letter addressed to the respective legislatures of the states, refer it to them, as so many sovereign, independent communities;” and “to each respective legislature, it is recommended” to invest its delegates with competent powers, in the name and behalf of the state, to subscribe articles of confederation and perpetual union; 1 Laws U. S. 12, 13. These proceedings suffice to show the sense of congress as to the domestic relations of the states before they had adopted the articles of confederation: their federal relation or connection had assumed no definite form; each state made out its own credentials to its deputies in such form as they chose; and congress had hitherto acted by an authority, assumed as exigencies required, calculating on the acquiescence of the separate states.

If congress was, in 1776, a national legislature, with power to pass laws independently of the several states, and to control state legislatures, all subsequent acts were worse than useless; for the government was more absolute than the present. The declaration of independence admits of no qualification of the unlimited powers of a state. Taking it as the creation or the recognition of a government, instituted by one people of one state, as guarantied by the treaty of alliance with France, and acknowledged by the treaty of peace with Great Britain; it was

66 absolute and unlimited in matters of govern

ment, commerce, and possessions;” and all the rights of the crown, and powers of parliament, devolved upon, and passed definitively to the one state and nation, as well to the soil as the jurisdiction of the whole territory within the boundaries of the United States. That this view of the declaration of independence is contradicted by historical facts, by all the political events of the revolution, the proceedings of congress, the general and state conventions, and the adjudications of this Court is, I think, fully apparent in the preceding view. It also appears to me, that this declaration has been as much perverted, as the passage from Blackstone, in its application to the then political situation of the colonies, or states; its intention and effect, connected with the history of the times, is so plainly expressed, that it seems incapable of being misunderstood.

That there were thirteen colonies, with separate governments in each, without any control by one over another, is admitted; that they assembled by different representations; that they voted, acted, and signed the declaration by their separate delegates, is apparent on the journals of congress, and the face of the paper. The members who assembled as the delegates of colonies, were the same, who, as the representatives of the states, made the declaration in the name, and by the authority of the good people of these colonies; which was:-“ That these united colonies are, and of right ought to be, free and independent states."

If this declaration had no bearing on the constitution, or if that instrument was not the most ill-fated one that was ever devised and written by man, not only by being itself perverted, but made the cause of perverting every other instrument in writing which forms a part of its history, or can be referred to for illustration; there would be the same union of opinion as to its meaning, as there has been for one hundred and fifty years in England, as to the declaration of rights, wrongs, and the effects thereof, in 1688. That it consummated a revolution in government, whereby all colonial dependence having ceased, each political community assumed, as a state, that separate and equal station among the powers of the earth, which other independent states held, and which each state then and thenceforth had and enjoyed; would have been the universal opinion, if no question of political power was involved in mystifying it. If this paper is taken as it reads, and means what it says, it contains neither a grant or recognition of the existence of any legislative powers within the limits of the once colonies and then states; other than what was and had been in the several legislatures thereof, from their first settlement; and if it cannot be made so by bold assertion, or misinterpretation, there is no foundation for the theory of the unity of power in the

one people,” in constituting a government for the United States. To my mind, it seems a contradiction in terms and sense, that the declaration could be true in fact, in principle, or historically; if the several states could be made subject to a constitution, ordained by “ an absolute sovereignty” in the people of all the states, in the aggregate. It is to me, wholly repugnant to the declaration itself, as

to two great grievances set forth: “For taking away our charters, abolishing our most valuable laws, and altering, fundamentally, the forms of our government:“For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

This is the precise effect of the modern interpretation of this great act of the revolution; by which commentators make congress declare, that the very acts of oppression, committed by the king and parliament, against which the states and people contended as violations of their rights, were no longer so when exercised by congress. If the result of the revolution was a change of masters; a mere substitution of a supreme national government over states, with powers more absolute than were ever asserted by king or parliament; then the charters of the states were virtually annulled; their forms of government altered fundamentally, and their own legislatures not only suspended but superseded. It will be left to theorists to reconcile the commentary with the text.


By these articles, the nature of the confederation, and its objects, were clearly defined: the relations of the states to each other, their separate powers, and those of congress, explicitly declared. They were adopted, not by the people of the states, but by delegates, who were the representatives of the respective state legislatures; who were expressly named as the constituents, who had authorized them to be ratified and confirmed, and in the name and in behalf of each; and which was so done by the delegates who signed the same accordingly; 4 Laws U. S. 19, 20. For present purposes it is necessary to refer only to three articles.

"Art. 3. The said states, hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretext whatever.”

“Art. 9. The United States, in congress assembled, shall have the sole and exclusive right and power of sending and receiving ambassadors, and entering into treaties and alliances; provided, that no treaty of commerce shall restrain the legislative power of the respective states, from imposing such imposts and duties on foreigners, as their own people are subjected to; or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.” i Laws U. S. 16.

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. 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.


TO THEM, BY FRANCE, BY THE TREATY OF 1778. On the same day, when a committee was appointed by congress to prepare and digest the form of a confederation, to be entered into between these colonies, a committee was also appointed to prepare a plan of treaties to be proposed to foreign powers, June 12, 1776; 2 Journ. 198; the instructions to the commissioners were agreed to in September following; 2 Journ. 361. In the same month, plans of these treaties were submitted to and approved by congress, who made out letters of credence and commissions to the commissioners; 2 Secret Journ. Cong. p. 7.

As the 9th article of confederation, as drawn up, would give to congress the sole and exclusive power of entering into alliances, on their adoption, it was a sufficient guaranty for its observance by the states; but as congress could not restrain the legislative power of the states over commerce, as resolved in April, 1776, and declared in this article, provision was made on the subject in the 6th article: “ No state shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by congress to the courts of France and Spain;" 1 Laws U. S. 15. Those of commerce and alliance with France were made in 1778. The commissions, credentials, and treaties, were in the name of “the thirteen United States of North America, to wit: New Hampshire,” &c. 2 Secret Journ. 7; 1 Laws, 74, 95; and the ed article of the treaty of alliance declares its object most explicitly.

“ 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 possessions, 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 condi

« PreviousContinue »