1

eral 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.1 The Articles of Confederation, of which we shall have occasion to speak more hereafter, were not prepared or adopted by Congress until November, 1777;2 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," 3 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.

§ 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,5 Mr. Chief Justice Jay, who was equally distinguished as a Revolution

1 See Penhallow v. Doane, 3 Dall. R. 54; Ware v. Ware v. Hylton, 3 Dall. 190, per Chase, J. See the Circular Letter of Congress, 13th Sept., 1779; 5 Jour. Cong. 341, 348, 349. 2 Jour. of Cong. 1777, p. 502.

8 See Letter of 17th Nov., 1777, by Congress, recommending the Articles of Confederation; Journal of 1777, p. 513, 514.

4 1 Amer. Museum, 15; 1 Kent, Comm. 197, 198, 199.

5 3 Dall. 419, 470.

ary 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, 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 force, and the sun of the political system. Congress raised armies, fitted out a navy, and prescribed rules for their government, &c., &c. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America, &c., &c. 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, &c., &c. 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,2 Mr. Justice Chase (himself also a

1 3 Dall. 54.

2 3 Dall. 199.

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, &c. 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." 1

§ 217. In respect to the powers of the Continental Congress exercised before the adoption of the Articles of Confederation, few questions were judiciously 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.2 The 1 See also 1 Kent, Comm. Lect. 10, p. 196; President Monroe's Exposition and Message, 4th of May, 1822, p. 8, 9, 10, 11.

2 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.

[An exceedingly interesting account of the controversy with Pennsylvania over the jurisdiction of Congress in prize causes, and of the part taken by that eminent lawyer, Mr. A. J. Dallas, in sustaining the Federal authority, will be found in the Life of Mr. Dallas, by his son George M. Dallas, page 95 et seq.]

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 as the people, and were acquiesced in by the people.

CHAPTER II.

ORIGIN OF THE CONFEDERATION.

§ 218. THE union, thus formed, grew out of the exigencies of the times; and from its nature and objects might be deemed temporary, extending only to the maintenance of the common liberties and independence of the States, and to terminate with the return of peace with Great Britain, and the accomplishment of the ends of the Revolutionary contest. It was obvious to reflecting minds that such a future separation of the States into absolute, independent communities, with no mutual ties or controlling national government, would be fraught with the most imminent dangers to their common safety and peace, and expose them not only to the chance of reconquest by Great Britain, after such separation in detached contests, but also to all the hazards of internal warfare and civil dissensions. So that those who had stood side by side in the common cause against Great Britain might then, by the intrigues of their enemies and the jealousies always incident to neighboring nations, become instruments in the hands of the ambitious abroad or the corrupt at home, to aid in the mutual destruction of each other; and thus all successively fall the victims of a foreign or domestic tyranny. Such considerations could not but have great weight with all honest and patriotic citizens, independent of the real blessings which a permanent union could not fail to secure throughout all the States.

§ 219. It is not surprising, therefore, that a project which, even in their colonial state, had been so often attempted by some of them to guard themselves against the evils incident to their political weakness and their distance from the mother country, and which had been so often defeated by the jealousy of the crown or of the colonies,1 should at a very early period have occurred to the great and wise men who assembled in the Continental Congress.

§ 220. It will be an instructive and useful lesson to us to trace 1 2 Haz. Coll. 1, etc.; Id. 521; 2 Holmes's Annals, 55 and note; Marshall, Colon. 284, 285, 464; 1 Kent, Comm. 190, 191.