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§ 45. The nature of the civil polity which existed during the earlier periods of the revolution and subsequently under the Confederation, is an element of the utmost importance in determining the character of the present Union. It has long been too much neglected by statesmen and political writers ; but its controlling effect was recognized by those men who had passed through the struggle of the war and the disastrous experience of the Confederation, and were called upon by their official positions to fix the limits of the new-made government. In very recent times, during the search for first principles and solid foundations quickened by the late war, the attention of American publicists has been again more strongly drawn to this vital subject, and it has been examined with more care, and illustrated with more fulness, than ever before.

$46. Those who have adopted either the second or third of the theories set forth in the preceding chapter, have expressly assumed as their fundamental position, and many who should be ranged among the supporters of the first have at times seemed tacitly to admit, that whatever of a national character we possess dates from the first establishment of the present Constitution; that by or through this instrument the people of the states were for the first time drawn together into an union which might properly be termed a nation ; that prior thereto the several states were confessedly sovereign, inde


pendent commonwealths. The advocates of the second, or “State Rights” theory must of necessity maintain this position; but from those who hold to the essential, perpetual, and supreme nationality of the Union, this concession is not the mere surrender of a verbal point; it is the abandonment of a great principle, and is not only impolitic, but unnecessary, being entirely contrary to the truth. We have now to deal with plain historical facts, not with theories, nor with disputed questions of intention.

Whatever these facts may be, we cannot change them by argument, nor escape from their legitimate consequences.

I repeat, the condition and character of the political society prior to, and at the time of, the adoption of the Constitution, is a fact, to be ascertained in the same manner as any other matter within the province of history.

$ 47. Prior to the revolt which terminated in the war of the Revolution, the colonies were not a single nation, nor were they thirteen separate nations. They possessed, singly or in combination, none of the powers and attributes of nationality. Each was independent of the others so far that the collective inhabitants and local governments of each had no authority over the inhabitants nor within the territory of the others. But each was a dependency and an integral part of the British empire. As a result flowing from this common dependence, the inhabitants of each possessed certain rights and privileges within the territories of all the rest; the people of each owed common allegiance to the crown, and were under a common subjection to the imperial government of the King and Parliament. It is true that from their proximity, their one language and religion, and the general identity of their interests, a feeling of unity and nationality had to some extent become. spread through the colonies; but this was as yet a mere sentiment, and would continue such until, as it deepened in intensity, it should result in united acts of the whole people which should proclaim that people one nation.

§ 48. Such acts were done. Difficulties arose between certain colonies and the imperial government; and these proving too serious for peaceful adjustment, resort was had to violence.

In their first appeal to arms, in their first movement toward separation from the British empire, the people of the colonies acted as a unit; and from this epoch dates our national existence, dates the birth of a political society now known as the United States of America. The revolt was not the work of the colonies acting separately and independently, in any assumed sovereign capacity, but of the people of all these local communities acting together through their representatives in the Continental Congress, which assembly, though revolutionary, provisional, tentative, and loosely organized, was essentially national.

§ 49. On the 5th of September 1774, delegates to the first Congress assembled at Philadelphia. They were appointed from the different colonies; in some by the popular branch of the legislature, in others by a convention directly chosen by the people. With a correct understanding of the real condition of affairs, and of their own character as representatives, these men styled themselves in their formal acts “ the Delegates appointed by the Good People of these Colonies.”

The government thus formed was, in truth, revolutionary ; it was not intended to be permanent; but it exercised in fact and of right a sovereign authority, not as the delegated agents of the local governments of the separate colonies, but in virtue of original power granted by the people. Their acts were all of a national character. They forbade the importation and exportation of articles of merchandise from and to Great Britain and certain of its dependencies ; they passed a Bill of Rights; they stated their common grievances, and adopted an address to the king and to the British people.

$ 50. On the 10th of May, 1775, a second congress of delegates was held. These were chosen in some of the colonies by the popular branches of the local legislatures, but in most by conventions directly elected by the people. Their measures were still more national. They assumed to regulate commerce, to provide a supply of funds, to raise an army, to construct a navy, to establish a Post-Office Department, and to do many other acts, all looking toward a complete separa1 See 1 Story on the Constitution, $ 200.

2 Ibid. § 203.

tion from the British empire. Finally, they issued the Declaration of Independence, and thus at one blow cut off all connection with the mother country, and consummated the process of national birth which had been begun two years before.

$51. What is the result to be deduced from these events ? Prior to the Declaration of Independence the colonies, separately or unitedly, did not assume to be, nor were they, independent, sovereign states. In theory, they still spoke of themselves as dependencies of the British crown, seeking redress by force, but ready to return to their obedience whenever that redress should be granted. Practically they were in a condition of revolution ; the words of duty in their public acts were mere words of policy, their deeds had another meaning. But in their progress toward independence they acted in concert from the beginning, and this concert was not one of mere league or compact, but of organic unity. The boundaries which separated one colony from another were unaltered; the local legislatures were preserved; the congress of delegates assumed but limited powers; but so far as they asserted independence it was the assertion of the nation and not of thirteen sovereign nations. Nor did the delegates derive their authority in fact from the colonial legislatures, but from the one people acting behind and superior to these legislatures, acting as a political society, and exercising the attribute of sovereignty which belongs to such a body politic. Beyond all question the idea of nationality was not distinctly presented to their minds ; they did not evolve a completed theory of the nature of their civil polity, and proceed to carry out that theory. They were guided by circumstances, and as events led them to acts of nationality they followed unhesitatingly.

$ 52. Again, the Declaration of Independence was not the work of thirteen separate colonies, each acting in an assumed sovereign capacity, but of the United Colonies acting in a national capacity through their delegates in congress assembled. This congress did not propose the declaration to the states and recommend its adoption by their local legislatures

1 See 1 Story on the Constitution, $ 203.

nor did it need such endorsement to give it validity ; state ratification when made was a work of supererogation. The declaration was finally and forever established by the whole independent political society through the means which they had appointed. The language of the instrument itself indicates its nature and its origin. Nothing is said of the independence of the several states, but the operative clauses indissolubly combine the idea of organic unity and nationality with that of independence. “We, therefore, the representatives of the United States of America, in general congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent states ; that they are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” It is evident that in this clause, the words " free and independent states," “ united colonies,” “good people of these colonies,” are used in a collective sense, to describe the one political society which was declared to be independent and to possess sovereign powers.

$53. No single colony, therefore, by this organic act revolted and claimed separate independence. It is true that New Hampshire, New Jersey, and South Carolina, had, prior to July 4th, 1776, adopted new constitutions for themselves ; but these were all made in pursuance of a resolution of Congress of the 3d and 4th November, 1775, recommending the states to form such government “as would best promote the happiness of the people

during the continuance of the dispute with Great Britain :”) and they were all expressly declared to be temporary, and to exist only until a

! See Jameson, Const. Conv. $ 127. See also $ 128, for a second resolution of May 10, 1776.


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