in cases of prize capture, and the acquisition of territory, neither of which functions could have been exercised by a government which did not possess plenary power and complete sovereignty and nationality. § 144. Views of Justice Miller and Mr. Davis.-The арparent repetition of some of the points elaborated in the preceding chapter, and which will be referred to again at a later point in this volume, is due to the fact that we cannot properly trace the history of the treaty-making power prior to the Constitution, or reconcile the well-known and conceded weakness of the Union under the Confederation, with the strong powers that were vested in it in regard to those national matters, unless we keep them constantly and prominently in view; it is necessary also to appreciate that the weakness of the Confederacy was not due to a lack of power to decree, but of power to compel obedience to decrees when made, in fact, as Mr. Davis says, "in studying the ante-Con itations, Chapter II. pp. 7-11, and see numerous cases cited, and also quotations from the Federalist. STORY. "The same body, in 1776, took bolder steps, and exerted powers which could in no other manner be justified or accounted for, than upon the supposition that a national union for national purposes already existed, and that the Congress was invested with sovereign power over all the colonies for the purpose of preserving the common rights and liberties of all. They accordingly authorized general hostilities against the persons and property of British subjects; they opened an extensive commerce with foreign countries, regulating the whole subject of imports and exports; they authorized the formation of new governments in the colonies; and finally they exercised the sovereign prerogative of dissolving the allegiance of all colonies to the British crown. The validity of these acts was never doubted or denied by the people. On the contrary, they became the foundation upon which the superstructure of the liberties and independence of the United States has been erected. Whatever, then, may be the theories of ingenious men on the subject, it is historically true that before the Declaration of Independence these colonies were not, in any absolute sense, sovereign states; that that event did not find them or make them such; but that at the moment of their separation they were under the domain of a superior controlling national government whose powers were vested in and exercised by the general Congress with the consent of the people of all the States." Commentaries on the Constitution of the United States, by Joseph Story, L.L. D., 5th Ed., Boston, 1891, vol. 1, § 214, p. 157. 4 For views of Justice Miller and Mr. Davis see § 144 and notes thereto. stitutional history of the United States, we may often find Congress weak in action, but never irresolute or weak in asserting its Federal powers. Before the Declaration of Independence it claimed and exercised the National Powers which until then had been wielded by the King of Great Britain. When that Declaration was proclaimed, it pressed this claim with stronger emphasis, if not with better right. This power it handed over to the government of the Confederation, which was in fact the Congress itself; and that government, in its turn deposited the power in the new Union, as defined by the Constitution." 1 $144. 1 Miller's Lectures on the Constitution; J. C. Bancroft Davis' notes to Lecture I, pp. 57-8. In the same chapter (pp. 36-37) Mr. Davis says: "This outbreak of a state of war found in each Colony or Province, an organized government with separate functions, exercising a limited sovereignty under the king of Great Britain. Many of the broader powers and functions of National Sovereignty, which the Constitution now places in the government of the United States, then resided in the British king and Parliament. When British sovereignty fell, such powers were assumed and exercised, without question, by the Congress of the United Colonies, before the United States existed as an independent nation; months before the Articles of Confederation were agreed to; years before they became operative by receiving the assent of all the States. They were never enjoyed or exercised by the states separately; and consequently, as an historic fact, independently of theory, they could not have been retained when the States conferred upon the general Government other enumerated powers in the Articles of Confederation. "Unconsciously to themselves the people of the United States were absorbed into a new nationality by the very fact of their combined resistance to Great Britain. They carried on war; they officered and maintained armies; they commissioned vessels of war; they borrowed money and issued evidences of debt therefor; they created prize courts; they acquired territory and determined what the nature of its civilization should be; they made treaties with foreign powers; and in many ways, both before and after the adoption of the Articles of Confederation, they exercised the highest powers of sovereignty. "This Congress was both the Executive and the Legislature of the Nation. It was the body which framed the Articles of Confederation, and many of its members were also in the Convention which framed the Constitution of the United States. Unless that Constitution is to be construed theoretically, and without regard to the incidents of the national history of which it was the outcome, a knowledge of what that Congress did, derived from historical investigation, must help us in comprehending what sort of a government the framers of the Constitution intended to § 145. The Continental Congress a revolutionary government.—These general statements in regard to the high acts of sovereignty exercised by the earlier Congresses are strengthened by an examination of the history of those organizations. The first Continental Congress assembled at Philadelphia on September 5, 1774, and organized itself as a deliberative body representing the various colonies of North America. It was essentially a revolutionary government, the outgrowth of necessity for immediate and united action of the colonies; it consisted of delegates, or, as they were called in many proceedings, committees of the colonies. Eleven colonies only were represented on the first day. At that time no Articles of Confederation existed, nor in fact were there any written articles which either held the colonies together, or clothed the delegates with any general powers; nor were there any established principles at the outset by which the nature of the Union could be determined; it, therefore, became necessary at once to formulate some system of government which should be binding upon all the different colonies or states, as from that time thereafter they have ever since been called.1 § 146. Nature of Congress prior to Constitution.-The Continental Congress acted somewhat in the nature of a general committee, or commission, for the thirteen colonies without any constitutional foundation or written agreement whatever, from 1774 until 1777; the Articles of Confederation were completed and offered to the States for their ratification in November, 1777, but the assent of all of the States was not obtained until March, 1781. During this period of establish. To cover this whole § 145. 1 For an extended history of the earlier Congresses of the United States, see Curtis' Constitutional History of the United States, edition of 1889, New York, vol. I, chapters I-IV, and Story's Commentaries,, vol. I, § 198. § 146. 1 For dates of adoption of Articles of Confederation, see note 1 to § 148, p. 257, post. nearly seven years the basis for the existence of the Continental Congress was simply the recognized unity of the States as a matter of necessity and policy; all of the States from time to time sent delegates, the number varying according to the whim or fancy of each State, for as each was allowed to determine the number of its delegates within certain bounds, no undue advantage was obtained by increasing the number of delegates as a single vote was allowed to each State, regardless of the number of delegates representing it. § 147. Independence, preservation of States' rights, National unity-all united in original and subsequent governments of United States.At the first meeting of these delegates questions naturally arose in regard to the extent of the national, or federal rights, which were exercisable by the Congress, as distinguished from the rights of the States, whose powers as to local affairs were not to be encroached upon any more than was absolutely necessary; great difficulty was encountered in framing a system of government and vesting the Continental Congress with governmental powers owing to the great jealousy with which the rights of the States were closely guarded; thus at the very outset of our recorded political history we find that the three great ideas, or principles, which have ever since dominated the government of the American people had already sprung into existence, and entered into the formation of the government, to wit: Independence, Preservation of States' rights, and National Unity.' $147. 1 NATIONAL UNITY PRIOR TO DECLARATION OF INDEPENDENCE. The first page of Bancroft's History of the Constitution of the United States is entitled "A retrospect-Movements towards Union, 1641-1781," see also Elliott's Debates, vol. I, pp. 42-60, "Gradual Approaches towards Independence." There is an exposition of this national unity, as it existed between the colonies, in the compilation of Select Charters and Other Documents illustrative of American history from 1606 to 1775, edited with notes by William Macdonald, published by the Macmillan Company, New York and London, 1899; this volume contains eighty documents affecting the relations of the American colonies with European countries, especially Great Britain, and with each other. As stated by Mr. Macdonald in his preface, it is a companion volume to his Select Documents Illustrative of the History of the United States, 1776-1861, also published These principles have consistently and concurrently existed since that first meeting of the Continental Congress in Phila by the Macmillan Company, New York and London. Some of these documents are referred to in the following note: On Thursday, October 20, 1774, the following "Association" was read in the Continental Congress and signed; it begins with the usual preamble: "We, his Majesty's most loyal subjects, the delegates of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, the three lower counties of New Castle, Kent, and Sussex, on Delaware, Maryland, Virginia, North Carolina, and South Carolina, deputed to represent them in a Continental Congress, held in the city of Philadelphia, on the fifth day of September, 1774, avowing our allegiance to his Majesty; our affection and regard for our fellow-subjects in Great Britain and elsewhere; affected with the deepest anxiety and most alarming apprehensions at those grievances and distresses with which his Majesty's American subjects are oppressed; and having taken under our most serious deliberation the state of the whole Continent, find that the present unhappy situation of our affairs is occasioned by a ruinous system of Colonial Administration, adopted by the British Ministry about the year 1763, evidently calculated for enslaving these Colonies, and, with them, the British Empire." After recitals of their grievances the non importation agreement of 1774 was made; the association is referred to here because throughout the entire document, which appears at length on pp. 443-447, second volume of Curtis' Constitutional History of the United States, the colonies are referred to as a single territory, America, and, except in the recital, there is no reference to the separate colonies; the tenor of the instrument shows clearly that in this matter they considered themselves a unit. On Thursday, July 6, 1775, in the Continental Congress a declaration was prepared by the representatives of the United Colonies of North America setting forth the causes for the necessity of taking up arms, in the course of which the following occurs: "Our cause is just. Our union is perfect. Our internal resources are great, and, if necessary, foreign assistance is undoubtedly attainable. We gratefully acknowledge, as single instances of the Divine favour towards us, that His providence would not permit us to be called into this severe controversy until we were grown up to our present strength, had been previously exercised in warlike operations, and possessed of the means of defending ourselves. With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of our liberties; being, with one mind, resolved to die freemen rather than live slaves. |