111 Til I
University of California.
i/Jc(-c'Ssioiis 'No^D of / . (lhn<: No. ,
THE
UNIOJ^^STATB:
V
j^ LETTER
OUR STATES-RIGHTS FRIEND
JOHN C. KURD, LL. D.,
AUTHOK OP
•' ITie Law of Freedotn and Bondage in the United Slates"; " The Theory of our
National Existence"; " The Centennial of a Sevolution
by a Bevdiitionist."
if "'"^^^^
NEW YORK :
D. Van Nostkand Company.
1890.
THE
UNION^STATK:
j^ LETTER
OUR STATES-RIGHTS FRIEND.
JOHN C. HURD, LL. D.,
AUTHOR OF
The Law of Freedom and Bondage in (he United States"; " The Theory of our
National Exislence"; " The Centennial of a Revolution
by a Uevotvtionidl."
NEW YORK :
D. Van Nostrand Company.
1890.
COPYRIGHT
1S9O,
John C. Hurd.
PREFATORY.
The production of these pages originated in a brief
corresjwndence with a citizen of one of the North-
western States, who had, in a recent publication, pre-
sented an argument in defense of the States of the
Southern Confederacy in asserting a right to secede
from the Union.
In our discussion, the historical question of the actual
political status of the thirteen States, at the time when
the Constitution was proposed for ratification by them,
seemed, to each of us, the question which required to
be settled at the outset, as between ourselves.
This question — we were agreed — could be decided
only by historical evidence from the record, as distin-
guished from any assumptions, or any arguments, as
to the merits or demerits of imaginable systems of
government.
On looking up this record-evidence, for use in our
private correspondence, it seemed to require more
verbal citation and careful reference to the accredited
sources of information than could well be arranged in
the usually indifferent style of epistolary vvTiting.
Hence a preference for the accuracy of printed com-
munication suggested itself, and, as a consequence of
■•gyiVEI -.TV
this, the expediency of giving the whole as a publica-
tion — to be offered to any interested in the general
subject.
The ulterior purpose of this historical inquiry was,
of course, on the part of the author, to make it a basis
for a denial of the doctrine of States-rights, when pro-
posed in justification of State-secession.
In distinguishing and illustrating his own special
argument for this denial, it was, however, necessary
for the author to separate it from other arguments or
theories which had been offered as supporting the same
conclusion.
Hence it was necessary to present the reasons for
rejecting each and all of the most popular or generally
current defenses of the action of the Federal Govern-
ment for resisting the attempt to separate the States
associated in the Southern Confederacy from the exist-
ing Union.
So much space has been devoted to this negative side
of the discussion, that it is highly probable that many
persons who agree with the author in sustaining such
action of the government, as in accordance with the
pre-existing political Constitution of the United States,
will except to many of the positions taken in these
pages. They may very probably even regard the
general bearing of his argument as more antagonistic
to some view of their own, than it is to any w^hich
they had been accustomed to class as parts of the
heresy of State-sovereignty. J. C. H.
New York, April, 1890.
LETTER
Writing to you on the question asked in your letter,
I have the satisfaction of thinking that we can " plead
issuably," as lawyers say, and know what we are to
discuss. That letter recalls one from another corre-
spondent, who, agreeing with me in many respects, raised
the same question — Why should it be held, or how
can it be contended, that those spoken of in the Dec-
laration of 1776 as "independent States," were then
and afterwards only one independent State ?
But this correspondent proi^osed, as doctrine derived
from " all history," that all law and political existence
were founded "on consent." I believe it api)eared to
him that the political personality of each colony began
by the consent of each early settler, and that a like con-
sent by each inhabitant, independently of any actual
force and will manifested by the body corjjorate, as
a political person, was the cause of whatever
authority it niight afterwards claim as one of the
United States.
As I know nothing of any such consent on my own
part, and never lieard of anybody at that time or since
who could say that he had been in a situation to give
or withhold his consent to what was or might be
enforced as his political and legal obligation, I was
6
unable to find any common basis upon which a discus-
sion of the question raised between us could be pur-
sued.
There is no arguing as to the evidence of this as-
sumed consent. It is discerned by each several thinker
according to his own conceptions of political expe-
diency. I dare say there are as many at the South as
at the North who would make it the basis for whatever
concrete system of political life they might hai)pen to
approve of. They and we are not, I take it, agreed as
to what is to be understood by the word sovereignty.
But I find in your letter the phrase — " acquired by
force, as all sovereignty is acquired."
On this we are agreed, and therefore the question be-
tween us is— where had the force existed, which, before
1789, taken as the date of the adoption of the Consti-
tution, had sustained whatever sovereignty had been
manifested in the country known as the United States ?
Neither of us, I take it, would propose to find the
answer to this question by arguing as to where it ought
to be found ; or by arguing as if it could be shown by
reasoning from scientific data. I assume that, for us,
the existence of will and force directed to a certain
political end is the only matter of inquiry.
As between ourselves, it might be asked — on whom
is the burden of proof ? One afl^irms the will and force
to have been in each separate State, as to its own ter-
ritory and population. The other regards the will and
force as manifested only by a number of States together,
or as united to constitute a single political ])ower-
holder as to their entire territory and poi)iilati()n ; the
will and force being shown by them only in community,
or as one.
Each denies the proposition affirmed by the other ;
so that we are really equal as to the burden of proof.
You may be taken to have presented your side affii-m-
atively in your letter.
As to whatever I can advance to sustain my affirm-
ative, I think the best I may do is to state, very im-
j)erfectly it must be, the various changes in my own
views of the general subject of our political existence.
As for my earliest notions — I suppose the doctrine
which I must have heard inculcated and have received
from my reading was that commonly accepted by the
Whig party (1830-1850). This I understood as taking
the Constitution for record-evidence of a grant, transfer
or cession, absolute or irrevocable, by each State,
severally, to an administrative government organized
under the Constitution as a written law, or to some per-
son or persons represented by that government, of cer-
tain powers originally inherent in each State, severally,
as a sovereign nationality.
It appeared to be held, as historic fact, that the
States individually agreed to this transfer of some portion
of their complete sovereignty in order to act more effect-
ually as one nation than they could if that sovereignty
were represented through their delegates in a simple
federal alliance, and that this last had been their rela-
tion to each other before the adoption of this plan or
constitution of government.
Whatever variety of opinion may at that time have
existed as to the precise extent of this grant, or as to
the political status of the recij^ient, the conception of
the original thirteen States, as each severally possessed
of complete sovereignty, seemed to be equally prevalent
at the North as at the South.
I had always recognized that force, not consent, must
be the condition of any several political existence, and,
from history, found that the force which had sustained
State Governments in each State for internal relations.
8
and also an a^iency of some sort for certain purposes
indispensable for existence and recognition as a national
power, had been first exerted at one and the same time
by thirteen personalities. It appeared to me that the
several existence of these, as States, at and after the
Declaration of Independence, was due to a simultane-
ous assumption of power on the part of thirteen exist-
ing political bodies, not previously sovereign in any
respect, but organized as colonies or j^rovinces under
the force and will of the British empire.
After my earliest reflections on this subject, I must
have abandoned the conception of each of the thirteen
colonies as having simultaneously acquired a severally
sovereign existence by its several force and will ; if
indeed I had ever so conceived it. I probably came to
regard the several force and will of the colony as ac-
quiring for it the power which was exercised severally
and internally in the ensuing condition of union, and
the joint force and will of all the colonies as acquiring,
for all the States, as composing one political ])erson,
the powers manifested externally and internally as a
recognized national State.
This condition of things I then regarded as an intrin-
sic fact in the genesis of each State and of the Union ;
a i)C)litical fact in their history, distinct from the
establishment of any particular instrument of govern-
ment. It was not merely older than the Constitution
and the Articles of Confederation, but was the i)olitical
fact, from which alone they, as being legislative effects,
derived their existence and authority.
But this view was founded on the assumption, which
I had accepted as sound in theory, it being generally
affirmed by Northern historians and jurists as having
been actually realized in our case by the ado^jtion of
9
the Constitution, that what is called sovereignty is
capable of being held in division.
It was the civil war which led me to question whether
this theoretical separation of sovereign powers had been
exhi])ited in our political system. It was at first argued,
by Unionists, of every party, that the Federal Govern-
ment should only maintain itself in the exercise of the
powers iiTevocably surrendered to it by the several
States of the Southern Confederation, as similar powers
had been surrendered by the others — the ' ' residuary ' '
powers being supposed to remain all along in the pos-
session of the several States so confederated, as the
like powers were in the possession of any other State.
This was stating the case as it might perhaps have
been regarded had the Southern States been then at-
tempting that resistance to specific laws enacted by the
Federal Government which was known as "nullifica-
tion," in 1830. It was looking at the question from
the lawyer s point of view, and as it had presented
itself to Mr. AVebster when arguing the question of
powers as one to be settled by the Constitution as law.
A majority of the people of the Xoith, while the war
was in progress, may have regarded it in tliis light.
The Judiciary has all along been trying to decide cases
arising out of the relations of war by taking this
position.
Ensuing events demonstrated the impossibility of
conducting war against armies of secessionists, within
the limits of their States, consistently with such a
theory or assumption.
It seemed clear enough to me that, even as a question
under the Constitution as law, any enforced exercise of
powers claimed as under law by the Federal Govern-
ment would involve some restriction of the power's
" reserved " to the State by the same law. But, if held
10
by political rif>:ht above law, these "reserved" powers
must necessarily be employed in recoverinpj the powers
formerly granted by the State to and still claimed by
the Federal Government. A belligerent attitude,
asserted by either party to the division, involved the
exercise of all the powers of sovereignty, and was
inconsistent with the continuation of the constitutional
division of powers with the other belligerents. I saw
that it was the fallacy of divided sovereignty which
embarrassed the administration and was the main cause
of divisions of opinions at the North as to any political
purpose in supporting the war.
It was then that I began to inquire whether the pos-
session of the "reserved" powers — regarded as sover-
eign powers — might not possibly be ascribable to the
same will and force as was the possession of the powers
which I had attributed to the will and force of the
States united. For I had then arrived at the convic-
tion that neither set of powers could be sovereign
powers against the world in general — all other nations
— except as being held by some one person or one
aggregate of persons, as one homogeneous mass of
powers, as to their character or quality.
II.
Having reached this point, I concluded that the fun-
damental question in the various issues of that time
had always been identical with our present inquiry—
Whether each or any one of the thirteen original
States, ever, at any moment after their ceasing to be
dependent as colonies, had exhibited force and will as
sustaining, severally, the powers belonging to every
sovereign nation, or State, in that sense : or — Whether
it was only by a common force and will exerted by
them as one integral nation or State that they had
claimed and sustained those powers.
It has often been said, as a foundation for your view,
that the thirteen colonies had been "independent as
to each other." They were independent in respect to
each other, only as every British landlord was inde-
pendent as to any other, or as one citizen or subject, as
such, must be independent, politically, of every other.
Their relations of independence, as to each other, were
under municipal positive law, as distinguished from
relations of independence, as sovereigns, by interna-
tional law. They were reciprocally independent in the
exercise of whatever powers they had as administra-
tive governments. But this relative autonomy was
not in the nature of sovereign power ; because it was
not the exercise of several independent political juris-
diction as against every other political jurisdiction.
12
Particularly, it was not sueli as against that one known
as the British empire.
This independent political existence was precisely
what had to be acquired l\v force and will — revolu-
tionary force and will — exhibited by some then exist-
ing person or persons ; and our question is — Who the
person or persons were, who so acquired it.
When this independent political existence has l^een
attained, it is, for those whose only interest is to know
this fact, utterly immaterial whether the exercise of
force and will was morally, legally, or economically
justitiable, or not.
But it had been very common in the revolutionary
period, especially with men of legal training, to main-
tain that the American colonists began their resistance
to Great Britain only to maintain political privileges
or franchises then held by them under a law of some
sort, as against the Crown and Parliament.
This claim was founded on the assumption that
every inhabitant of a British colony could, as English
subject, demand political franchises similar to any
which w^ere exercised by Englishmen in England. It
has been noticed by some writers of our own time, both
English and foreign, that, in England, the relation
between the monarch and the subject had been so long
and peacefully recognized in the prescriptive exercise
of political privilege by the members of various cor-
porate bodies, that, in that country, as in no other,
the possession by the peojjle of independent i)olitiQal
power has for centuries seemed to be determined by
law, or by something like law.'
At the time of the foundation of the colonies, the
people of England, as found in sucli custouiary ])()liti-
cal organizations dating from a remote i)eri<)d, might
' e. g., Dicey, p. 214.
13
be regarded as holding political rights under a com-
pact, as against the crown. This is something quite
different from that assumption of a contract, made
before law existed to make any contract binding,
which was the basis of John Locke's Treatises on
Government, written to sustain the English revolu-
tion of 1688 ; and therefore, in England at that time
there was really something answering to a Constitution,
in the sense of a law defining the possession of supreme
power or sovereignty.
But whatever these political franchises of English-
men at that day may have been, they w^ere, if regarded
as legal rights, derived from law of territorial extent,
and as much localized as the relations of tenure of
land in England. When colonists from various
European nationalities claimed rights of independent
political jurisdiction in America, these could not be
referred to any similar foundation in ancient custom.
Their Charters, Patents and similar instruments, none
dating earlier than the Stuart kings, were the only
vouchers of this sort to which they could refer.
So they naturally took up the argument which
Locke and the English "Whigs of his generation had
thought good for the revolution of 1688. They too
proclaimed the fiction of a social compact and the con-
sent of each natural person entering into society ; the
more, because reinforced by the French school of their
time ; and talked, in all seriousness, of their rights
against the British empire as men, while standing on
the soil of the despoiled red man, by the side of the
imported African chattel.
Such theories are as available for the States-rights
doctrine as for any opposed to it. As there could be
no record of any social compact, it has been free to any-
body to imagine one made for his State severally, or
14
for the whole bundle of States and Territories. It may
as justly ])e asserted that any county, townshij) or
commune exists, as sovereign, by force of this compact.
The townships in Massachusetts and Connecticut.' dur-
ing the revolution, asserted local sovereignty on this
basis.
Whatever controversy there may be as to the origin
of the colonial governments — as by the consent of each
inhabitant, or by the political authority of the English
sovereign — it would be material for us only, as related
to the inquiry whether the States, which took the
places of the colonies, were the actors in the revolu-
tion to which their independence is to be ascribed.
The need for such inquiry is indicated by the position
of those who, desiring to prove the existence of some
holder of an undivided sovereignty to wliose single
will and force all government can be referred, profess
to discern in the geographical people, that is the
integral population of all the colonial territory, the
person to be regarded as actor in the revolution.
From the nature of such questions, any proposition
of this sort should be supported by some historical
testimony. But, instead of anything of this kind,
we are asked to accept the affirmation of docrines or
theories like that of Locke, and such as are formulated
in the Declaration of Independence, and in several of
the State Constitutions ; as in that of Massachusetts.
In arguing the question proposed between ourselves,
I shall presujipose that the Declaration was fi-amed
by i)ersons who were acting in a representative cai)ac-
ity, and that it lias always been open to ask what
authority they had to declare anything at all.
When you say — "Whatever these cohmies may have
become, it was effected by themselves," I assume
' Jolinston's Connecticut. — Am. Com. Scrios, 291.
15
that you hold, as I do, that the will and force which
was to bring about the change was to be manifested
by these colonies as existing political entities, in dis-
tinction from a mere majority of the individual col-
onists, as together composing a geographical people.
Taking this ground, it is proper to inquire what record
the several colonies have left us as to their will in this
matter and their own views as to the force which was to
sustain that will.
I suppose that it was as expressing the same thought
that you say — "They were among nations, whatever
they chose to call themselves." But, to my mind,
your proposition is somewhat of a begging the ques-
tion. For the point to know is whether they were
"among nations" at all ; either as one or as thirteen.
Your jDrox^osition is equivalent to saying that they —
the colonies — were whatever they might call them-
selves, because they were nations as much as any
nation.
Aside from the question whether the colonies be-
came whatever they chose to call themselves, your
proposition assumes that the words used were intended
by those who used them to have the meaning which
you think they ought to bear. That is, that the words
'•free and independent States," as used by them,
indicated a will, jiurpose or expectation that these
colonies should thereafter exist as so many severally
sovereign political entities, each ranking as one among
nations.
In your reliance on the Declaration, as proving the
existence from that moment of so many severally
independent or sovereign States, you have, I allow,
the supporting consent of an overwhelming majority of
our fellow-citizens without distinction of party or
section. The same vieAv has, I believe, almost uni-
16
versa! acceptance among foreign pii])licists, who have
assumed, without further inquiry, tliat an actual
political fact was determined by tliese words, as you
interpret them. They also, for the most part, assume,
as you do, that this involves the recognition of a
similar independent existence for each State, which
afterwards became a member in the Federal Union, and
they, logically, agree with you in asserting the right
of any State to withdraw at will.
Whether those of us at the North who, while equally
insisting on the several sovereignty of the original
thirteen, have denied this pretension of a political
right, can justify their position, is a question which
we might notice later.
In determining political existence, as in all questions
of character and essence, calling oneself, or being
called by others, though of some value as testimony of
a volition or purpose, is a very distinct matter from
being. Therefore, to my mind, the value of these
words in the Declaration, and of the employment of
the plural "States," and of such terms as "Con-
gress," "Confederation," or of other phrases indicat-
ing a certain separate identity, is little or nothing in
this issue.
So I would concede, for the same reason, that we
should not attach the value of evidence to such appel-
lative terms as "In the name of the good people of
these colonies," in the Declaration, or ''AVe, the people
of the United States," in the preamble to the Constitu-
tion, which are so much relied on by those whose ver-
sion of our history would contradict yours, as indicat-
ing a different investiture of sovereignty,
Tlie question of the meaning of these words, as used
in the Declaration, is nearly the same as the question
whether these colonies actually had the will to become
17
severally sovereign. The question whether, if they
had such will, they had also the several force to
become such, may seem at first to be a distinct matter.
But, in arriving at some answer to each of these in-
quiries, they can hardly be separated ; since all the
attainable evidence bears equally on both.
For my own part I have found what, to me, seems a
very sufficient answer on these two points in several
important acts or declarations of some of the colonies ;
ante-dating the occasion, when their existence as
"free and independent States" was declared by their
delegates.
III.
It is important to notice tliat all of us who discuss
this issue of ours, as to sovereignty, are apt to con-
found the matter of independent political existence
with that of form of government. This is, mainly, be-
cause, whatever diversity of view may have existed
as to the location of the ultimately sujn-eme power, a
federal form of government has always been a neces-
sity. Such a government could be administered by
13ersons having little harmony in their views as to that
political essence on which any legal authority depended.
The two conceptions — political existence and form of
government — should be more distinguishable to our
minds than to those of any people that has had a several
history. Yet we use the term '-our institutions" in a
general way, as combining them.
According to my conception of sovereignty, it is ex-
hibited in any independent exercise of jurisdiction, or
the application of rules as a measure of justice between
man and man. That is to say, it is necessarily exhib-
ited in the independent dispensation of ordinary mu-
nicipal law, civil and criminal, within a certain territory.
Sovereignty, therefore, was asserted not only in the
operations of war and in diplomacy, conducted for all
the colonies by a common instrument, but equally so
whenever local or internal government in any colony
was administered without reference to any pre-existing
19
authority such as coukl be attributed to the king or the
sovereignty of the British empire. As is remarked by
a recent writer on these events : ' ' Wherever the func-
tions of government were performed under other sanc-
tion than that of the crown of England, revolution was
an accomplished fact."^
The assertion of this jurisdiction in and for any
colony or colonies involved, as between themselves and
the former sovereign, all the consequences which could
be attributed to any formal declaration of independence.
We know from abundant record-evidence that it was
so regarded by many at the time ; both among those
who favored and those who opposed the movement for
independence.^
Now, what we have to ask ourselves is — AYhether,
when this occurred in the several colonies, the colony,
as political person or State, was exercising a several
will and force to sustain independently such measure
of political jurisdiction within its territory, or was rest-
ing on the common will and common force of all the col-
onies, as States constituting, in union, one prospective
possessor of undivided sovereignty. We know from
the contemporary records that in several of the colonies
represented by delegates in the Continental Congress,
those persons who had been acting as a government,
though more or less identified before this crisis with the
provincial administration, hesitated as to assuming the
further exercise of civil and criminal jurisdiction for
their several colonial limits. They were conscious that
whatever political sovereignty had supported their
' Beginnings of American Nationality, by A. W. Small, Ph. D., p. 43.
» Gordon's Hist, of the Am. Rev., II, 75.1.50,169. John Adams'
Autobiog. Works, II, 489,510; III, 13.23; 44-46. Frothiughani's Rise of
the Republic, 448,491-498. Bancroft, IV, 419. Barry's Hist, of Massachu-
setts, 3d period, 96 and references.
20
authority during the colonial period was, as matter of
fact, no longer operative. In this situation they in-
structed their delegates in that body to present the case
to the Continental Congress ; that is, to all the colonies
acting as one political power — to obtain their "advice
and instruction/'
The earliest of these applications was from the second
Provincial Congress, so called, of Massachusetts. This
body, writing to its delegates in the Continental Con-
gress, May 16th, 1775, states — " As the question equally
aifected our sister colonies, and as we have declined,
though urged thereto by the most pressing necessity,
to assume the reins of civil government without their
advice and consent,'" and — " AVe shall readily submit to
such a general j)lan as you may direct for the colonies ;
or make it our great study to establish such a form of
government here as shall not only promote our advant-
age, but the union and interest of all America."'
Mr. Bancroft, who ought to know, says of Massachu-
setts, at this time: "That colony still languished in
anarchy, from which they were ready to relieve them-
selves if they could but wring the consent of the Con-
tinental Congress to their 'taking up and exercising
the powers of civil government.'' "^
A second address, referring to the former and asking
for "immediate advice on this subject,'' was sent by
the third Provincial Congress of Massachusetts, June
11, 1775. But the General Congress had acted on the
same request, June 9, 1775, recommending to the Pro-
vincial Congress of that colony a new election by "all
inhabitants of the several places which are entitled
(/. e., under the old charter,) to representation in the
• Journals of the Mass. Provincial Congress of 1774, 1775, edition of
1838. Force'.s Am. Archives, 4th Series, II, p. 620, 806.
« Bancroft, Hi.st. of the United States, IV, 203.
21
Assembly.' On June 2()tli this was read in the Pro-
vincial Congress, and summonses to the *' towns" were
issued, beginning — "For observance of the foregoing
resolve of the Honorable Continental Congress, these
are to request,'' etc., the election of a new Assembly,
which met July 19th ; when the third and last Provin-
cial Congress was dissolved.^
The next, in time, and a more distinct index of colo-
nial feeling on this point, is seen in the " instructions "
given by the Provincial Congress of Xew Hampshire,
laid before the Continental Congress October 18th, 1775,^
by its delegates in that body, directing them " to use
your utmost endeavors to obtain the advice and direc-
tion of the Congress with respect to a method for our
administering justice and regulating our civil police.
AVe press you not to delay this matter ; as its being
done speedily will probably prevent the greatest con-
fusion among us." In reply, the Congress, November
3rd, 1775, resolved "that it be recommended to the
Provincial Convention of New Hampshire to call a full
and free representation of the people, and that the
representatives, if they think it necessary, establish
such a form of government as," etc., " during the con-
tinuance of the present dispute between Great Britain
and the colonies." John Sullivan writes, December 12th,
177o, " I hear that the Continental Congress has given
our province a poAver to assume government."*
When precepts were issued for such election, the
town of Portsmouth, the largest in that colony, pro-
' Force's Am. Arch., 4th Scr., II, 1844.
» Records, p. 319. Journals of Congress, I, 80. R. Frothingham;
Rise of the Republic, 491. Curtis' History of the Constitution. I, 36.
* Force's Am. Archives, 4th Series, III, p. 1897.
* Force's Am. Arch., 4th Series, IV, p. 241. R. Frothingham's Rise,
etc., 493.
22
tested against the measure as '* aiming at independency,
which we totally disavow/''
The convention elected on tliis recommendation,
calling itself Congress, appears to have resolved, Decem-
ber 21st, 177o, that it would '' take up government,"
provisionally, "during the present contest with Great
Britain."
Afterwards, January 5th, 1776, they declared —
"We, the members of the Congress of the colony
of New Hampshire, chosen and appointed by the
free suffrage of the people of said colony, author-
ized and in particular to establish some form
of government, provided that measure should be recom-
mended by the Continental Congress, and a recommenda-
tion to that purjDOse having been transmitted us from the
said Congress,'' etc. They assume the name, power
and authority of a House and Assembly for the colony
of New Hampshire, and organize themselves.-
Recommendations in terms similar to those in the
case of Massachusetts and New Hampshire were sent
by the Congress to the convention in South Carolina,
November 4th, 1775.^ The President of the Provin-
cial Congress, February 9, 1776, thanking its delegates
to the Continental Congress, mentioned theii* services
in procuring the "permits granted to the colonies to
erect forms of government independent of and in op-
position to the regal authority.^ On the day following
a committee was appointed for framing a Constitution
of government, which was adopted by the convention
March 28, 1776. But its continuance was limited in
^ Dec. 25, 1775, Force's Am. Archives, 4th Series, IV, 459.
* Force's Am. Archives, 4th Series, Vol. V, p. 1.
' 2 Gordon's Hist., 151. Force's Am. Archives. 4tli Series, V, 562,
568.
* Frothingham's Rise, etc., 494.
23
reference to a possible accommodation between the
colonies and Great Britain.^
The local dissensions in North Carolina, during 1775,
had been discussed by the general Congress November
28, when according to Gordon's statement —
"Instead of a similar recommendation to what
was given to South Carolina about establishing
a form of government, it was only recommended to the
convention or committee of safety, in case the method
of defending the colony by minute-men be inadequate
to the purpose, to substitute such other mode as to
them should appear most likely to affect the security of
the colony/'-
It may have been that the measure of submitting the
whole question of a new local government to the people
of the province was not proposed, in this case, in view
of the extended opposition to the revolutionary move-
ment which existed at the time in North Carolina. The
people of the province could not have been committed
by any local movement like the "declaration of inde-
pendence," so called, of Mecklenburg County, May 31,
1775, the authenticity of which has been controverted.
The little that has been ascertained about it has been
summed up by Mr. Frothingham,^ and he remarks,
truly enough, in view of facts rather than of words —
"This action, though bold in the direction of self-
government, was still in the spirit of subordination of
the county to the colony, or to the decision of the
Provincial Congress and the Continental Con-
gress — that is to say, in entire harmony with the
revolutionary movement. North Carolina may point
to it with pride as evincing the spirit of the peo-
1 Ramsay's Hist, of So. Car., I, 7.
« 2 Gordon's Hist., 153.
* Rise, etc., 422, note.
24
pie, and even as taking, substantially, the position
that was taken on the 15th of May, 1776, when Congress
recommended all the colonies to form local govern-
ments/'
This view seems more rational than that taken ))y a
historian of the State, presenting the Mecklenburg pro-
ceeding as "full of moral sublimity and a source of
elevating State pride — that the sons of North Carolina
should assemble at Charlotte, Mecklenburg County,
and, without assurance of support from any quarter,
should ' declare themselves a free and independent
people and of right ought to be sovereign and self-
governing. ' ' ' ^
A recommendation for taking up government in the
name of the people was tendered by the General Con-
gress to the Convention of Virginia, December 4, 1775.*
But this colony was not among the most forward to
adopt a new form of local government ; although it
generally has the credit of having been the foremost
in proposing the declaration of the independence of the
United Colonies. The political power, at that time,
was exercised, says Mr. Frothingham, "by a conven-
tion consisting of delegates chosen by those qualilied
to elect Burgesses. The delegates were re-elected in
pursuance of an ordinance of their own making. , . .
They did not immediately comply with the recommen-
dation of Congress in December to form a government.
This procedure was looked upon generally as in the
direction of independence, if not as independence itself ;
which then only a few in the colony regarded with
favor."^
* Wheeler's Nortli Carolina, II, 259, cited by Frothingliam.
2 Force's Am. Arch., 4th Ser., Ill, 1941, 2 Gordon's Hist., 152. Barry's
Hist, of Mass., 3d period, 96.
» Frothingham, Rise, etc., 508.
25
The Virginia convention which, May 15, 1776, had
instructed its delegates to propose that declaration,
proceeded to frame a Declaration of Rights for their
colony and a Constitution of government ; which was
adopted by the same convention, June 29, of tlie same
year. In this Constitution there was no limitation of
its continuance. The preamble states that it was
adopted ' ' in compliance with the recommendation of
the general Congress."^
Of this Constitution, a recent historian of the State
remarks—" Virginia thus declared herself an independ-
ent sovereignty, entitled to receive the absolute allegi-
ance of her citizens and prepared to defend her claim
with the sword. "^
It might be inferred from this statement that the
author believed that it was the purpose of this colony
to become an independent nationality, resting on its
single will and force ; whatever might be the course
taken by the other colonies. However, when speaking of
the Declaration by Congress on the 4th of the following
month, =^ he says^"The passage of the Declaration
marks a distinct epoch in the history of Virginia as
well as of America ; thenceforth there was no retreat,
and she was to stand or fall with her sister colonies."
In Georgia, April 15, 1776, the committee for devis-
ing a temporary Constitution or form of government
reports — " Whereas, before any general system or form
of government can be concluded upon, it is necessary
that application be made to the Continental Congress
for their advice and direction upon the same,'' . . .
" but nevertheless in the present state of things it is
1 Frothingham, 512, note.
* John Esten Cooke, Virginia, A History of the People (Am. Com-
monwealth Series), p. 439.
» lb., p. 441.
26
indispensably requisite that some temporary expedient
be fallen upon to curb the lawless and protect the
peaceable/' . . . " This [revolutionary] Congress,
therefore, as the representatives of the people with
whom all power originates and for whose benefit all
government is intended, etc.^ do take upon themselves
for the present and until the further order of the Con-
tinental Congress, or of this or any future Provincial
Congress, etc^'^
Similar, in political significance, to those special
recommendations to single colonies was the action of
the Continental Congress of May lOth and 15th, 1776.
Reciting the necessity — "That the exercise of every
kind of authority under the said crown [of Great
Britain] should be totally suppressed and all the
powers of government exerted under the authority of
the people of the colonies" — it resolved "that it be
recommended to the respective assemblies and conven-
tions of the United Colonies, where no government
sufficient to the exigencies of their affairs has been
hitherto established, to adopt such governments as
shall in the opinion of the representatives of the people
best conduce to the happiness and safety of their con-
stituents in particular and that of America in gen-
eral."^
Tlie contemporary appreciation of this recommenda-
tion of the General Congress, as an act equivalent to
the assertion by all the colonies, as one political person,
of sovereignty in and for the local government of each
several colony, is shown by the address of a Philadel-
phia committee six days later. May 21, 1776, to the
other counties in the province. In this they complain
» Force's Am. Arch., 4th Series, V, 1108. IV, Banc. Hist.. 392.
« Force's Am. Arch., 4th Series, VI, 466. Journals of Congress, May
10 and 15, 1776.
27
that their delegates {i.e., of the province,) had not
"given their voice in the Congress on the question 'for
establishing government throughout the continent on
the authority of the people,' but by declining to vote
on this momentous occasion did, as far as was in their
power, withdraw this province from the Union of the
colonies in council and action."
The committee further recommends the counties to
elect delegates for a convention for framing the govern-
ment, saying — "For, if the union be broken, every
province on the continent will be upon us "" — upon
us — that must mean — will have a right of political
action against this province for failing to join with
every other in responsibility for an act of sovereignty
in sanctioning the assumption of local government by
the political people in each province or colony.
This appeal led to the assembling of "a Provincial
Conference of Committees'" from the counties. On
the 18th of June, 1776, the recommendation of the
General Congress of May 15 was read before this body,
and it was " Resolved, unanimously, that the said reso-
lution of Congress of loth of May last is fully ap-
proved by this Conference." It was further "Re-
solved that the present government of this province is
not competent to the exigencies of our affairs. . . .
and that it is necessary that a Provincial Convention
be called by this Conference for the express purpose
of forming a new government in this province on the
authority of the people only."'
Mr. Bancroft has put this relation of the general
Congress and the new authorities for Pennsylvania in
a clear light ; and shown that the revolutionary govern-
ments of other provincial colonies, Maryland, New York
' Force's Am. Arch., 4tli Scries, VI, 952, 953.
28
and New Jersey, were in a position like that of Penn-
sylvania at this time.^
The three local organizations afterwards constituting
the State of Delaware were at this time acting together
by a House of Representatives, by which it was resolved,
June 15, 1776, after the recommendation of Congi'ess
of May 15 had been "read and approved," that they
would, " as they used legally to exercise it in the name
of the King, continue to exercise local authority in the
name of the government of the Counties of New Castle,
Kent, and Sussex upon Delaware, until a new govern-
ment shall be formed agreeable to the resolution of Con-
gress of May 15, 1776."^
The Provincial Congress and Council of Safety in
New Jersey, July 2. 1776, recites that "all civil author-
ity imder him [the King] is necessarily at an end and
a dissolution of government in each colony has conse-
quently taken place," and "as the Honorable the
Continental Congress, the Supreme Council of the
American Colonies, has advised such of the colonies as
have not yet gone into the measure to adopt for them-
selves respectively such government as shall best con-
duce to their own happiness and safety and the well-
being of America in general," and further, that " We,
the representatives of the colony of New Jersey, hav-
ing been elected in the freest manner and in Congress
assembled,'' resolve "that the government of this prov-
ince shall be," etc}
That, in some of the colonies, no similar action was
taken for laying the foundation of local government in
the expressed will of "the people," independently of
' Banc, IV, 342-844, 419. 429 Barry's Hist, of Ma.s.s., 3(1 period, p. 96.
with many citations. 2 Gordon, 116.
• Force's Arch , 4th Scries, VI, 884
' Minutes of the Provincial Congres.s, itc, p. 533.
29
tlie sovereignty of the Crown and Parliament, was
mainly owing to the organization and political origin
of their existing governments. These, as was the case
in Connecticut and Rhode Island, had been so imme-
diately connected with the voting body of citizens, that
any new representation, specially summoned as on the
recommendation of Congress, would not be essentially
different from its predecessors.
In Connecticut a new Constitution was not framed
before October, 1776. Mr. Johnston, in his history of
this commonwealth, seems, by his manner of stating
this, to connect it with the recommendation of Con-
gress of May 15. Referring, summarily, to the pro-
gress of the revolution in the colony in 1776, he ob-
serves — " In the meantime Connecticut had become a
State. In May, 1776, the people had been formally
released from their allegiance to the crown, and, in
October, the General Assembly passed an act assuming
the functions of a State. "^
The author appears to attribute this release from
their former allegiance to the will and force of the
General Congress, expressed in the resolution of May
15, Mr. Johnston having been of that school in histori-
cal investigation which assumes the one people or
nation, lirst, and Congress as its mouthpiece to create
States by its fiat. He quotes the phrase of the new
Constitution — "This republic is and shall forever be
and remain a free, sovereign and independent State" —
calling it "curious" — and remarks — "The nation was
born, but its constituent units were often painfully
unconscious of its birth."
It is worth our notice, as inquirers on this matter of
State existence, that this volume of Mr. Johnston's and
• Connecticut. A Study of a Commonwealth Democracy. American
Commonwealth Series, p. 304.
30
that of Mr. .TohnEsten Cooke on Virginia, already cited,
are published in a series, the title of which — Tlie Com-
monwealth Series — implies that the several writers
have each the same conception of Commonwealth^ as
designating a State in the Union.
The record of the Provincial Congress of New York
may seem to present an argument for not attributing
the existence of the State government to any will and
force other than its own.
The Provincial Assembly, in which a majority op-
posed the course taken in the other colonies, dissolved
Itself Ajjril 22, 1775. Executive authority was assumed
by self-constituted committees, by whom delegates to
the Continental Congress, as for the province, were sent,^
until a Provincial Congress was elected ; which met
first, May 22, 1775. This Congress had no other basis
than the choice of those who, having the franchise
under the preceding government, approved the move-
ment. The majority vote was taken by the counties,
each being arranged to have a number of rejjresentatives
proportioned to its population.
This Provincial Congress continued on the same basis
without any recorded reference to the consent of the
Continental Congress, until after the Declaration of
Independence by that Congress, in which its delegates
did not join. Some six or seven days before the reso-
lution of Congress of May 15th, 1776, some Whigs,
whose names have not come down to us, had. by a letter
through John Adams, " applied for leave for this colony
to form a government."'
On the day preceding the date of the resolution taken
by the Philadelphia committee for calling a conference
1 Banc, IV, 147. 176.
« Frothinfrhani , p. 49f). Adams' Works, IX, 407. 2 Gordon's Hist.. 269,
27<».
31
of the several counties, the question had been raised,
May 20th, 1776, in the Pennsylvania Assembly — which
still existed as organized under the i^roprietary rights
of Penn, — "Whether the assemblies and conventions
now subsisting in the several colonies are or are not the
bodies to whom the consideration of continuing the
old or adopting a new government is referred." That
is — the reference to "the i)eople," as indicated by the
resolve of Congress, May 15, and which the Philadel-
phia conmiittee called for.
But if it was then (Xuestiona])le whether such "bodies"
as are referred to by the Philadelphia committee, because
originally elected as provincial or colonial organs
under the royal sanction, were competent to take the
initiative for the organization of a new government, it
was equally questionable whether any voter or body of
voters, either as voters of a colony, or of a county or
township, had any more original capacity in such an
act of political jurisdiction. Such body of electors or
any individual voter, holding the franchise under lam^
had no more comj)etency to act in political antagonism
to the existing sovereign than had the governing
officials elected by such voters under their patents or
charters.
As legal capacity or franchise of individual men, it
had to be referred to some sanction entirely distinct
from all law existing up to that time. Every jot of
political right exercised by a voter, as one of "the
people" of one of the States, had to be referred to some
person or persons who had the will and the force to
sustain all revolutionary assumption of such rights.
This will and force was either in each colony severally
or in the thirteen colonies, acting as one claimant of
sovereignty. Hence, the subsequent existence of the
electoral body or political people in each State must
32
be referred to will and force in the revolutionary action
of all the colonies, as one State — as one possessor of
national sovereignty.
In onr popular histories, all the revolutionary action,
civil and military, of these thirteen voting bodies is repre-
sented as action of individual human beings, founded on
some law of nature, such as is now invoked for the right,
so called, of universal suffi-age ; although the qualifica-
tions demanded by the laws of these colonies at that
period limited the franchise to a much smaller propor-
tion of the inhabitants than do the State Constitutions
of the present day. The social compact, the consent
of the governed, etc.^ have always been as much invoked,
in support of such views, by States-rights men as by
any others. Nobody has ever shown how a legal right
in a majority of human beings, equally sovereign by the
law of nature, could exist, to bind a minority. Nobody
can explain why the sovereign Tory had not as much
right to a government of his choice as the sovereign W hig.
These records of the reciprocal action of the Congress
of delegates from thirteen colonial corporations for
which independent political existence had not then been
claimed, and the several voting peoples of those juris-
dictions, indicated to my mind the political fact that
the exhibition, by the Continental Congress, in the
name of the United Colonies, of independent political
jurisdiction over the colonial territory and population,
anticipated the Declaration of the Independence of the
States, July 4, 1776. They also indicated a conscious-
ness that the exercise of any independent jurisdiction
within any colony or province could rest only on a
single will and force manifested in the common action
of thirteen pre-existing political personalities which
had never possessed sovereignty befoi'e that time,
either for local government or for national existence.
33
This reciprocal recognition by and of the several
colonies as the political personalities which, in some
form of union, would be the future possessors of all
independent political jurisdiction witliin their whole
territory, had, by most of our early historians, hardly
been mentioned, even incidentally. It had been passed
over as action having no important result. But these
same transactions have of late been especially noticed
by writers who profess to tind in them some historical
foundation for asserting the existence of a supreme
national government antedating any apparent action or
intention of the States, either as delegating, granting or
reserving any of the functions of sovereign power. So
these writers would represent the Continental Congress,
at and before the date of these transactions, that is,
before declaring the colonies free and independent
States, as the possessor of all sovereignty by its own
revolutionary force and will.^
A more recent investigator in this field of historical
research, in noticing the general prevalence of this
among other misconcei)tions, has very justly said —
"The question proposed at the outset is: What loas
the exact relation of the Continental Congress to the
colonies and States f Nearly all the fallacies in the
literature of our constitutional history may be traced,
wholly or in part, to assumptions in answer to this
question. Our constitutional history cannot be written
with authority until the question of fact here raised is
settled by appeal to the detailed evidence on record."^
It could hardly be expected of the generality of
foreign students of our history that they sliould be in-
1 As by Mr. G. T. Curtis ; History of the Const., I, 25-26.
■ Thf^ Beginnings of American N'otiondlity, p. 9, by Albion W. Small,
Ph. D., President of Colby University, Johns Hopkins University Series,
January-February, 1890.
34
formed of these separate nioveiiients in the road to
nationality, whicli are probably known by hardly one
in a thousand of those among ourselves who think they
are well posted on the subject. Itmiglit be anticipated
that any foreign observer would be satisfied with tak-
ing the Declaration of July 4, 177G, for the first indi-
cation of the assumption of independent political exist-
ence and would understand the claim as being, at the
same time, made for each State in severalty.
But no foreign critic, unless perhaps Professor Von
Holst^ may be the exception, has e^i^jressed the convic-
tion that the action of their own delegates in the Conti-
nental Congress made the States what they were, or
that they became wdiatever they were, not by their own
will and force, but by that of this Congress, as pos-
sessor of supreme sovereign powder for their wdiole terri-
tory, to give, withhold or divide it.
One of the earliest attempts of the Judiciary to
establish facts of political existence as within the scope
of legal decision is seen in the case of Penhallow v.
Doane, 8 Dallas (1795).
Mr. Justice Patterson, for the majority of the Court,
uses expressions mainly remarkable as illustrating that
inability to discriminate between the instrument of
government and the possessor of independent power
whicli so constantly appears in our political literature.
" Congress [referi-ing to the Continental (-(mgressj was
the general, supreme and controlling council of the
nation, the centre of force, the sun of the political sys-
tem. To determine what their jiowers were, we must
inquire what power they exercised . . . These high
acts of sovereignty were submitted to, acquiesced in,
and a])proved of by the people of America. In Con-
gress were vested, because by Congress were exercised
' Const. Hist., I, p. 4.
35
with the approbation of the people, the rights and powers
of war and peace."'
Three members of the Court expressed at the time
their dissent from this political doctrine. But these
phrases have been repeatedly cited by those writers
who wish to prove, as from judicial decision, that the
States were always in the relation of subordination to a
central instrument of government.^
A leading director of public conscience at the North
has, in the same spirit, recently said, "Our own govern-
ment arose from the initiative of a body of delegates
who took it upon themselves to act for the country as
a whole, and, as a matter of fact, assumed the functions
of a national government, and did not, either in the
form of treaties or of a Constitution, have any legal
authority for their acts until long after they had com-
mitted the country to a step from which there could be
no retreat. When, later, a Constitution was formed,
its preamble began with — " AVe, tlie people of the
United States ... do ordain and establish."^
From the connection of this last sentence with the
preceding, it would appear as if this "people"" had
been brought into being by and was then acting under
the coercion of the Continental Congresses and of the
Convention of 1787.
More extraordinary is it to find such unsupj)orted
assertions accompanied by record-proof of the depend-
ence of all the earlier Congresses upon the voluntary
and several action of the States, for the execution of
any proposed measures. This undisputed fact is always
* Curtis' Decisions, I, 87. See G. T.Curtis' History of the Constitution,
39-41, for an amplification of this historical statement.
* As in It. Frothinjj:hams liive of the Republic, 486, n.
« The Nation, K.i>v\\ 26, 1888, in an article on The Constitutional Posi-
tion of Prussia in the Oerman Empire.
36
brought out as an argument for the position that the
adoption of the Constitution, after ratification by the
States, must have been effected by revoluticmary action
of "the people" as against these States.
IV.
So many Americans have recently put forward simi-
lar views of the political status of the Continental
Congress in 1776, as disproving the possession of sov-
ereignty in any sense by the States, when ratifying the
Constitution in 1789, that it is worth while to notice
some indications of colonial opinion in anticipation
of the Declaration.
There is the fullest possible record-evidence that the
persons constituting the Continental Congress were
always in a conscious attitude of subordination on this
point to the several Provincial or Colonial Congresses,
Assemblies, Conventions or other bodies assuming to
exercise authority in the several colonies, by which
they were from time to time commissioned as dele-
gates.
This will appear incidentally from a class of records
which for us is important more directly, as bearing on
our present inquiry; that is, whether up to the date of
the Declaration any of the colonies had anticipated
that each colony would assume the position of a sev-
erally sovereign nation or State. Something may be
learned by comparing the terms in which the several
colonial authorities instructed their delegates on the
subject ; as showing whether it was the sovereignty of
all, as one, or the sovereignty of each one severally,
which was the event in prospect.
38
In the earliest of any positive instructions on this
point, that of the Provincial Cono;ress of Noi-th Caro-
lina, April 12th, 1776, the words empower the delegates
to concur in "declaring independency and forming
alliances.'" '
In three other instances the terms are the same used
afterwards by the Continental Congress,
As, first, by Virginia, May loth, 1776, "to declare
the United Colonies free and independent States ab-
solved from all allegiance," etc.-
The Connecticut Assembly, June 14th, 1776, resolved
unanimously "that the delegates of this colony in
Congress be and they are herel)y instructed to pro-
pose to that respectable body to declare the United
American Colonies free and independent States, ab-
solved from all allegiance to the King of Great Britain,
and to give the assent of this colony to such declara-
tion when they shall judge it expedient and best, and
to Avhatever measures may be thought proper and
necessary by the Congress for forming foreign alliances
or any plan of operation for necessary and essential
defense, and also that they move and promote, as fast
as may be convenient, a regular and permanent plan
of union and confederation of the colonies for,"
etc.'^
The Maryland Convention had, January 12th, 1776,
instructed against joining in declaring independency,
but June 28th, after a special appeal to the counties
for a vote on the subject, resolve for recalling tliose
instructions, and that their deputies be authorized " to
concur with the other colonies, or a majority of them,
' Force'.s Am. Arcli., 4tli Scrios. V, 859, S()().
* Force's Am. Ar(li.,4tli St-rit's, VI, 4G1. IJurkc'sIIist. of Virginia, IV,
140.
« Force's Am. Arch., 4tli Series, VI, 808.
39
in declaring the United Colonies free and inde-
pendent States, . . . and this colony will hold itself
bound by the resolutions of a majority of the United
Colonies in the premises/' ^
This reference to the determination of a "majority
of the United Colonies " is significant on the question
of several sovereignty. It indicates the i)ossibility
that a colonj^ should be included in the assertion of
independency against Great Britain, even against its
own views of political expediency.
The Assembly of Pennsylvania, June 8, 1776, by re-
solution, revoked an instruction given by them Novem-
ber, 1775, " to reject any proposition that might cause
or lead to a separation from Great Britain, or a change
of the form of this government.'' '' It proceeded to in-
struct its delegates authorizing them to concur in form-
ing such further compacts between the United Colonies,
concluding such treaties with foreign kingdoms and
States, and in adopting such other measures as shall be
judged necessary for promoting the liberty, safety and
interests of America."
The Provincial Conference of Committees which, on
June 18, 1776, had resolved that " the present govern-
ment of this province is not competent to the exigen-
cies of our affairs " (ante j^. 27), on the 24th of the month
passed a resolution declaring " our willingness to con-
cur in a vote of the Congress declaring the United Col-
onies free and independent States." -
The resolution of the Provincial Congress of New
Jersey, June 21, 1776, empowered the delegates in
Congress to join with those of the other colonies "in
the most vigorous measures for supporting the just
1 Force's Am. Arch.. 4tli Series, IV, 46Ji, 653, 806. 1491. Gordon's Hist,
of Am. Revolution, II, 289. Browne's Maryland (Am. Com.), 280, 282.
« Force's Am. Arch., 4th Series, VI, 963.
40
rights and liberties of America," and added, ''If yon
shall judge it necessary or expedient for this i)iirpose,
we empower you to join with them in declaring the
United Colonies independent of Great Britain," etc.^
The House of Representatives for the Counties of
New Castle, Kent and Sussex upon Delaware, author-
ized their delegates, June 14, to vote respecting inde-
pendence according to their judgment. -
It does not appear that any sj^ecial instruction had
been received from Rhode Island by its delegates. Their
credentials presented in Congress, May 14th, 1776,
dated May 6th, were, however, broad in authority "to
consiilt and advise with the delegates of the said colo-
nies in Congress upon the proper measures promoting
and confirming the strictest union and confederation
between the said United Colonies for exerting their
whole strength and force to annoy the common enemy
and to secure to the said colonies their rights and liber-
ties, both civil and religious, whether by entering into
treaties with any prince, state or potentate, or by such
other prudent and effectual ways and means as shall be
devised and agreed upon, and, in conjunction with the
delegates from the said colonies, or the major part of
them, to enter into and adopt all such measures,'" etc.^
A resolution of the General Assembly, July session,
1776, refers to "the resolution of the General Congress
of the United States of America of the fourth instant,
and declaration that the said colonies are free and
independent States," . . , "which resolution hath
been approved and solemnly puV)lished by order and in
presence of this General Assembly."
A letter from Virginia, June ir)tli, 1776, is given in
1 Force's Am. Arch., 4th Series, VI, 1725.
=* IV Bancroft, 428.
» Force's Am. Arch., 4th Series, VI, 1669. Frothiugham's Rise, tic. 305
41
Force's Archives, stating that persons arriving from
Georgia had reported that its delegates had been
authorized '' to concur in any scheme that may be pro-
posed for the benefit of the United Colonies, even to a
total separation from Great Britain, and that in the
meanwhile a form of government had been established
in the province." ^
Mr. Bancroft represents the delegates of Georgia as
having had no other instruction on this point than
could be inferred from that of February 2d, 1776, to
"keep in view the general utility, remembering that
the great and righteous cause in which we are all
engaged is not provincial, but continental, and concur
in all measures calculated for the common good.'' On
this he founds the opinion that the delegates of that
colony were "free to join in declaring independency
whenever it should be the choice of the Continental
Congress." ^
A similar conclusion may be drawn from a resolution
of the revolutionary convention of South Carolina, read
in Congress March 1st, 1776, that the delegates or
delegate of the colony are authorized in its behalf
"to concert, agree to and execute every measure
which they or he, together with a majority of the Con-
tinental Congress, shall judge necessary for the defense,
security, interest or welfare of this colony in particu-
lar, and of America in general." ^
It was not until July 3d that the Assembly in Massa-
chusetts, newly elected in 1776, voted that " if Con-
gress shall think fit to declare the colonies independent,
this House will approve the measure." *
' Force's Am. Arch., 4th Series, VI, 903.
» Bancroft. IV, 391.
' Force's Am. Arch., 4th Series, V, 605.
* 2 Gordon 268.
42
In this colony, as in Maryland, Delaware, Pennsyl-
vania and New York, those at that time exercisin■'' Of' TH
oy
■^IFC
V.
nesting on these two facts as proved from history,
viz. : —
1. The actual dependence of each several State
jurisdiction, for local government, on will and force
shown by the thirteen colonies together constituting a
single iDossessor of sovereignty ; and,
2, The condition indicated by them all, severally, as
inseparable from concert of action in the attainment of
that sovereignty for external relations ; viz., the faculty
of independent local government for each, while sus-
taining that united possession ; I arrived at the con-
clusion, that,
1. A single i^ossessor of the entire sum of sovereign
powers had come into being in the person of thiiteen
States manifesting the will and force to hold such
power as one national State within all the territory
known as that of the United States ;
2. That, whether sovereign powers can or cannot, in
theory, be divided, they were not so divided in the case
of these States, July 4th, 177G, and that, regarded as
sovereign powers, those exercised in the government of
each single State and those exercised in and for the
whole country by a Congress were derived from the
will and force of all the States, existing as one integral
sovereignty.
According to this view, the autonomy of eacli State
49
rested, as political fact, on sovereignty held by the then
United States. Every legal relation in any State, when
traced to a sovereign will and force, rested on that of
the United States of 1776. When the qnestion was of
responsibility, as sovereign, for any law or custom of
local extent, Massachusetts and South Carolina were
equally responsible, Avhether it took effect in one or in
the other. Because, for acts of sovereign power, all
the States, in union, were equally responsible.
I could very much wish there were some English term
in common use as significant of such an investiture of
supreme political jurisdiction as was, as I conceive,
exhibited in the genesis of the United States. As far
as I can learn, the word Bundes-staat, in use with
recent German j)ublicists, does correspond to such a
political existence. I see no reason why the term
Union-state should not be used, in English, to express
the same thing. The Germans use Bundes-staat as
distinguishing from Staaten-bund. Mr. Bryce, in a
note on these terms, ^ gives Federal-state as answering
to Bundes-staat and League of States for 8taaten-bund.
But by etymology and general use, the word Federal
includes the idea of a league of sovereigns and becomes
indefinite when used in opposition to that idea.^
For the purpose of this letter, I will use the term
Union-state as expressing my conception of the polit-
ical organism which came into being with the Declara-
tion of Independence.
This political system, or unwritten political consti-
tution, underlying all administrative functions in the
new-born national State, was not the result of conscious
choice on the part of any of those patriots and states-
^ American Commouwcalth, 1, p. 29.
» Mr. Woodrow Wilson also uses Federal-state as the equivalent of
Bundes-staat. The Slate, Sec. 1142.
50
men whose energies contributed to this result. It was
forced upon the colonies, as existing political l)odies,
by the circumstances in which they found themselves,
and, for the people or nation, it was their providential
constitution ; as Brownson called it.
Neither should it be claimed that this was altogether
a novelty in the history of political constitutions. The
originality of any essential change which may have
taken place afterwards, as in the adoption of the
written Constitution of 1789, is a different matter.
Two very conspicuous examples of a similar possession
of sovereignty were then in existence, from dates long
anterior to that of the independence of the American
Union. The United Provinces of Holland and the
League of the Swiss Cantons had i)resented a basis es-
sentially the same.^ They all differed from any simple
federation or league of severally sovereign communi-
ties, such as had been the Achaean League in Greece
and others in ancient times ; where the only Constitu-
tion was in the will and force of the strongest member,
exhibited in an international relation or aspect.
No Dutch i^rovince or Swiss Canton was recognized
as having exhibited the several sovereignty of a national
State. Yet each, by reciprocal support, had, from their
earliest united existence, as distinct from any under
ancient feudal relations to king or emperor, exercised
local jurisdiction independently ; while at the same
time all the provinces or Cantons constituted one sov-
ereign nation or State, acting by some common agent
1 Mr. James Wilson (Elliott's Debates, 2, 422) denied the parallelism.
There is not the slightest reason to believe in an intention to eopy.
Whether the parallelism between the Swiss confederation and the Amer-
ican Union has always been the same during the past century of their
history may be questioned. Most English observers rej)reseut them as
more nearily alike at present than ever before. Compare Bryce, Am.
Comm., I, 20. 400.
51
of government deriving authority from them as so
many possessors, in unity, of the total of political
jurisdiction.
Mr. Bryce^ has remarked — " It is often assumed by
writers on constitutional subjects that a federal govern-
ment presupposes a written or rigid Constitution. This
is not necessarily so. There have been federations with
no fundamental rigid Constitution.''' This is true, not
only of federations strictly so called, or leagues be-
tween mutually independent sovereignties, but also in
the case of unions such as were the Dutch Provinces
and Switzerland, and also in the case of the United
States, during the first period of their existence as a
nation. In such a Union-state, the organ of govern-
ment for many purposes of national existence might
even be one of the several members. As was at one
time the Canton Berne, for Switzerland.
But even in such case, and still more properly when
the organ of such a Union-state has been specially
created for such purposes by the common will of the
members, their organ may be called theiv /ede?'al
governments from its representative character, even
though the respective members are not federated as
severally sovereign.
Aside from our own estimate of the relative superi-
ority of our forms of political existence, we Americans
sometimes talk as if there had been some idea native
to the soil, bringing about the development of our
institutions, over and above the conscious thought of
any particular man or men. At the same time we give
credit for extraordinary wisdom to ' ' the fathers and
founders.'' If this conception of our nationally ac-
quired sovereignty may be supposed to have originated
in human l)rains, it might justly be distinguished as
' Am. Comm., I, p. 33, note.
52
the New Hampshire idea ; since the facts in which it
was manifested were, as political actions, most clearly
proposed by that colony in the resolutions of 1775 and
1776 which have been cited.
The distinction between the instrumentality of gov-
ernment and the investiture of sovereign power is
especially essential in a national history such as ours.
In any league or compact of sovereigns it is obvious
that, while they may have some common instrument or
agent not identical with any one several member of the
league, such agent cannot hold powers independently,
or even exist independently, as against any of the sev-
eral members of such a confederation or league. The
withdrawal or secession of one or more members is
matter of question only for the other members of the
federation. The supposed agent, however powerful as
a common instrument of government, has neither right
to enforce nor duty to fulfill against the withdrawing
member. Being agent, only, its very identity is lost
by the withdrawal of a single member ; even if a pre-
cisely similar agent should lie employed by the remain-
ing members. This latter agent may be empow^ered by
these, as a new league, either to compel reunion or to
punish the desertion. But any measures taken in that
sense would be international war or dii)lomacy, as be-
tween this agent of government and the seceding mem-
ber. There would be no treason on the part of such
seceding member or of its citizens, toward such agent ;
because tlieie would be no allegiance due by any of the
members or their citizens towards it or towards the
other members of the league or federation, as such.
In the case of the united possession of sovereignty
by a number of Provinces, Cantons or States, such as
was, in my view, that of the thirteen American States
in 177(5, it is equally plain that any common agent of
53
government could not liave a separate existence, as a
sovereign power-holder, as against the members of such
Union-state, and therefore would not have any intrinsic
right of dominion as against any Province, Canton or
State proposing to withdraw from such union.
But, in this case, the relation of the remaining Pro-
vinces, Cantons or States of the Union towards the sece-
ding member would be essentially different from that
of any severally sovereign States in federation or league
towards a former associate, in case of attempted with-
draw^al. For this reason the existing agent of general
or united government would sustain a different relation
towards the seceding member, from that betw^een the
agent for a confederation of sovereigns and a seceding
member. In enforcing the rights of the Union-state,
the measures taken by its agent would not have the
sense of international war or diplomacy, even when
relations of belligerency, de facto as between the
parties, had been recognized. For, in the case of such
a union, the single Province, Canton or State had not
possessed sovereignty or any political jurisdiction
whatever, except as voluntarily continuing in a united
possession of the sum of sovereign political power.
This power would have embraced and sustained the
several government of each member of the Union-state
over all j^ersons and jDroperty Avithin its territorial
limits. The refusal of some several member to share
in this dominion Avould not affect the extent of such
dominion. All persons who. before such refusal, were
or should be included under tliis dominion, would still
owe an allegiance to the Union-state as constituted by
its sovereignty vested in the members remaining united ;
without reference to any claim of local jurisdiction
made by the seceding Province, Canton or State. Its
citizens w ould be liable for treason against this Union-
54
state and against the agent of government represent-
ing it.
Tlie only reason for this condition of things woukl
be found in the political fact — that the will and force
to maintain sovereignty, in the case of any of these
Provinces, Cantons or States, had been exhibited by
them as a union and not severally.
This exercise of dominion l)y the continuing mem-
bers of the Union-state, through its agent of govern-
ment, over persons and things within the territory of
any seceding member, would be their political right —
a right growing out of their essential political consti-
tution in distinction from any right resting on law ;
whether called Constitution or not, because it would
not be a right in a relation established by a political
superior.
As sovereign right it would continue — subject to one
condition, viz. — that will and force to maintain that
dominion should be exhibited by those claiming the
right.
In the absence of either the will or the force — that is
— if the seceding Province, Canton or State, or a number
of such, should by any means maintain independent
jurisdiction, the right of dominion in the Union-state
over the territory and inhabitants of such Provinces,
Cantons or States, would be proved not to exist. Be-
cause sovereignty and the right of dominion depend
solely on will and force.
Whenever, after I had arrived at such concei)tions
as these of the possible location of su])reme i)()litical
jurisdiction, I have taken up any work relating to our
earlier history, including that of the adoption of the
Constitution, each familiar event ])resented itself with
a new significance. The details which had api)eared
as isolated and inconsequent occurrences marshalled
55
themselves as all animated by a single directing energy,
working for a definite purpose.
In what had stood in the record as the tumultuary
resolves and acts of private individuals, excited by
vague aspirations for personal independence, could be
recognized the action of political entities, capable of
that will and force by which all States and Empires live,
move and have their being. Such conceptions furnished
the standard by which the deed of each acting patriot
could be estimated. By it, it was possible to measure
the distance between the violence which the armed
farmers brought to Lexington and Concord, and the
manslaughtering presumption of a crowd of disorderly
whites and negroes on Boston Common.
By the same standard it was possible to compare the
several purpose and several achievement of those
leaders who, in civil life, from all pai'ts of the unde-
termined national domain, labored to secure for the
people that political unity which should give form and
substance to that liberty which exists by protection
under law.
VI.
By understanding the national existence at that
moment as thus stated, we may find something corre-
sponding with the facts in a resohition adopted by the
Continental Congress, June 24th, 1776, virtually antici-
pating the Declaration of July 4th— "Resolved that
all persons abiding within any of the United Colonies
and deriving protection from the laws of the same, owe
allegiance to the said laws, and are members of such
colony." It further charged that " all members of or
owing allegiance to any of the United Colonies, as
above described, who shall levy war against any of the
said colonies, within the same, or be adherent to the
King of Great Britain, or others, or the enemies of the
said colonies, or any of them, are guilty of treason
against such colony." It also recommended "to the
legislatures of the several United Colonies to pass
laws for punishing . . . such persons provably at-
tainted of open deed ... of any of the treasons
before described."^
Mr. Bancroft making this citation (Banc. Hist., IV,
425), gives this as his understanding of the political
effect of the resobiticm :
" The fellow subjects of one king l>ecame fellow
1 Force's Am. Arch., 4 Ser., VI, 17'2().
57
lieges of one republic, they all had one law of citizen-
ship and one law of treason/'
This remark is consistent enough if, by lieges and
citizens, we understand precisely what is more defi-
nitely conveyed by the teiTn subjects. AVhere there
are no subjects there can be no treason. Alle-
giance and subjection involve the existence of what
is called sovereignty ; which can exist only by the
existence of a person or persons holding it. Alle-
giance cannot be due to laws, but only to him or them
to whose will and force the laws can be traced. To
speak of allegiance due to a republic, or to any form
of government, is to put an abstract conception in the
place which can be filled only by living human beings,
capable of will.
Before treason can be spoken of, there must be the
sovereign and the subject. Or, if the dainty ears of
this century cannot endure these words, say — the ruler
and the ruled. In the Union-state, the rulers can be
found as easily as in a monarchy or oligarchy. They
are those to whose will and force in the several
Provinces, Cantons or States, being united, all law,
civil and criminal, can be traced. These, in one mem-
ber of the Union-state, might be a few persons, com-
paratively, and many similar persons in another such
member : as the case was in Switzerland. Here, in
our existence as a nation, it has always been those who,
in each of the States, voluntarily united as States,
have held the elective franchise by law proceeding
from themselves collectively, as political corporation
or State.
But whatever may be said for the view here i)re-
sented of the States existing only as one sovereign
Union-state in 1776, it is clear from history that they
58
soon afterward began to manifest an increasing feeling
of several independence.
There liad been a constant apprehension in the Con-
tinental Congress, before the Declaration, lest any
colony should make terms severally for itself, with the
British Government. The king had been inclined to
negotiate with them severally, as each having, as
colony or province, a distinct political status in the
empire ; while he refused any negotiation with Con-
gress, as representing a union ;^ which he justly re-
garded as self-assertion of a political entity without
a place in the eye of public law.
In the treaty of peace of 1783, the States appeared
only by their several colonial names, being designated
as "free, sovereign and independent States," in rela-
tion to their former sovereign ; and there can be little
doubt that the king's government looked upon them
as certain to assert a several political independence,
as to each other, and, before long, to wish to return,
one by one, to the protected condition of a colony.
Most European statesmen probably took the same
view. "We must see that, as to outward appearance,
it is difficult to discriminate between a league of
sovereign States and a sovereign Union-state, as here
described. It is inevitable that tlie geographical
element should be very important. The Provinces of
Holland and the Swiss Cantons had been localized in
compact groups, under the pressure of neighbors, who
were strong and ambitious monarchies, coveting their
lands and ready to divide them as spoil of war. Here,
in the view of Europe, were thirteen petty republics
strung along the Atlantic coast, each accessible by the
ocean higliway. Their only neighbors were colonies
North and South, on the same coast, and behind tliem
' IV Bancroft, 270, 310, 395.
59
a territory, which, to the mind of the European, was
as vacant as the sea before them. They themselves
could not foresee that this territory was the great
fixative mortar-bed, for which the Atlantic States
would so soon be like fragments of mosaic in the varie-
gated border of the wide continental pavement.
The phraseology of the Declaration may have been
due to the aspirations of the larger States. The
delayed assent of the Province of New York, may have
depended on this wording. It certainly was, as much
as the Resolution of Congress of June 24th, an invita-
tion to each State to assert sovereign rights ; such as
were asserted in July, 1776, when the legislatures of
New York and New Jersey, in words closely following
the phrase of the resolution of Congress, resolved that
each inhabitant owed allegiance to the State, and
might be chargeable with treason against it. A ten-
dency in this direction was to be anticipated, in the
larger States from a hope of hegemony, and, in the
smaller, from a desire to maintain their political
equality.^
Whenever a country is engaged in war, the functions
of the instrument of general government, whatever
it may be, are extended. Herbert Spencer says^ "It
is observed by Ranke that, during the wars with the
English in the loth century, the French monarchy,
while struggling for its very existence, acquired at the
same time, and as the result of the struggle, a finuer
organization. The expedients adopted to carry on the
contest grew, as in other important cases, to national
institutions. Modern instances of the relation between
successful militancy and the strengthening of political
' New York, .July 16, 1776; Force's Am. Arch., 5th Ser., I, 446. New
Jersey. July 18, 1776. lb., 369, 412.
- Political Institutions, ^ 474.
60
control are furnished by the career of Napoleon and
the recent history of the German empire."
The state of war is, for the time, a Constitution of
government. Here, when the war of Independence
ended, the essential vigor of the common instrument
seemed to decline, and the governments of the States
could assert the authority which peace invited them to
display.
But, that the essential conditions of their political
existence continued, is proved by the continuation of
their international status, as one Union- state.
Whatever the colonies should become was to be
effected by themselves ; that is, by their own will and
force as political bodies or corporations. In this they
w^ere neither better nor w^orse off than other claimants of
supreme political jurisdiction. No use of words, no
assertions of political justice or moral right, no appeals
to the Deity or to a law of nature can take the place of
such will and force. ^ But, whether it has been mani-
fested or not is an international question. That is, the
only proof of the sufficing will and force, in any case,
is their practical recognition by pre-existent holders of
supreme political jurisdiction or sovereignty.
Even if the colonies had formally recognized each
other as severally sovereign, this would not liave liad
a similar effect as proof of their status among nations. ^
It would not have been international recognition as to
any of them, liecause none of them had, as yet. attained
that recognition from the rest of the world. The
British government could, indeed, relinquish all future
claims of dominion within the territory of these thir-
' Compare the citations