tion was framed until the Constitution was adopted, that the colonies in so doing acted, not in their separate and individual capacities, but unitedly as one people, and as one nation, and that no steps were taken to achieve independence until it had been ascertained that unity of action had already been achieved. In fact, a long and interesting investigation of historical facts and documents, connected with these elements of the origin of our national life and of the opinions of many of our ablest historians and jurists, who have closely studied the subject in all of its varied aspects, has necessarily led to but one conclusion: that the duality of the Government of the United States, as herein before expressed, to wit: as a federation only in regard to internal affairs, and as a nation in regard to all matters of common interest or external relations, with every element of complete sovereignty and nationality vesting in the Central Government as to national matters, was coeval, and ever has been, co-existent, with the idea of independence and self-government of the colonies, and of the States; and that as a principle of political science, or political history, the United States existed as an independent nation prior to the transformation of many of the colonies into States.

§ 140. States' Rights School contention.-The quotations already given from Story's Commentaries and from Chief Justice Jay's opinion in Chisholm vs. Georgia, show that the views expressed in the preceding section have been adopted by many great thinkers; notwithstanding these expressions, however, as well as many others of a similar nature, there has been a constant effort on the part of the strict States' Rights School to divest the Continental Congress, in any and all of its capacities, of every right and power to exercise the functions of a national government, and also to divest the government under the Confederation of every attribute of sovereignty, even including those powers which were absolutely essential for the prosecution of the revolutionary war, the preservation of the Union, the assertion and maintenance of independence and the establishment and proper conduct of the relations of the nation, or community, with other countries, and all of which powers were so necessary for the preservation of the whole and of each individual

part, that Congress actually exercised them whether it did so under an improper assumption of power or from the actual possession thereof; certainly the doctrine of omnia præsumuntur rite esse acta ought to apply in a case of this

nature.

§ 141. Broader views of Marshall and others.-The theory of the nationality and sovereignty of the Central Government, as it appears from decisions made by Chief Justices Jay and Marshall, and as enunciated by Story, Curtis and Miller, is that a Government was constituted which not only possessed the powers which were delegated to it by the Articles of Confederation, and by the instructions of the delegates, but which also possessed inherently or, as Mr. Davis has expressed it in his notes to Justice Miller's Lectures, unconsciously, national and sovereign powers. Mr. Davis discusses this view of the subject and shows by the actual work performed by the Continental Congress, as well as by the Congress under the Confederation, that elements of nationality and sovereignty must have existed, because the acts done could only have been accomplished by the exercise of sovereignty by a fully sovereign power, and not by one of limited or delegated powers; in fact, he says: "That the Statesmen in the Continental Congress felt that they formed part of a National Government, ruling, in its proper sphere, over a Federation of United States, and exercising powers to which each of those States must of necessity be subordinate.

The simple truth is, that the United States, under the Articles of Confederation, like the United Colonies after the battle of Lexington, existed as a Sovereign Power from the necessities of the emergency. The Colonies were compacted together by the blows of a common enemy."

§ 142. Views of Calhoun and Tucker.-John C. Calhoun and John Randolph Tucker have adopted what they called the separate or State unit system, and by elaborate arguments have endeavored to show that the earlier Congresses could not exercise any authority whatever prior to the adoption of the Articles of Confederation, except in pursuance of the instructions of delegates, and subsequently thereto only § 141. tution; J. C. Bancroft Davis' notes

1 Miller's Lectures on the Consti- on Lecture I, p. 57.

in pursuance of the strictly delegated authority contained in the instrument itself; in his Discourse on the Constitution and Government of the United States, Mr. Calhoun has elaborately stated this proposition as his theory of State sovereignty,' and Mr. Tucker in the treatise already referred to has elaborated upon, and endeavored to support, it by includ ing as a part of his work all of the instructions of the States to their respective delegates, with the evident intention of proving thereby the limited bound, within which the powers of members individually, and of the Congress as a whole, were confined; also for the purpose of drawing a general deduction therefrom that beyond these limits no power or sovereignty existed whatever. This view is only sustainable by eliminating every power which is granted, by the rules of international law and by the elementary principles of political science, to all revolutionary governments and to all central governments of confederations, and also by asserting that the exercise of those powers by the Continental Congress was wholly illegal.

§ 142.

et seq.

Congress differs in terms from that

1 Works of John C. Calhoun; edi-given for the members of the prior ted by Richard K. Cralle, New Congress. A summary of each of York, April, 1888, Vol. 1, p. 110 these will be given in a note." Tucker on the Constitution, vol. 1, p. 215, Chicago, 1899. Then follows in a note a summary of the instructions of all of the thirteen colonies with the exception of Rhode Island and Georgia, which, Mr. Tucker states, did not appear.

2 John Randolph Tucker declares "The Journal of the second session of Congress opens thus: A number of delegates from the colonies of New Hampshire, Massachusetts Bay, down to South Carolina, agreeable to their appointment and orders received from their respective colonies.' This statement settles adversely the assumption of Judge Story that the members of Congress were not the delegated agents of the governments of the colonies, but represented the original powers of the people. This record states that they sat under the 'appointment and orders received from their respective colonies.' The authority given to the deputies to this

The conclusion reached by Mr. Tucker is stated on page 217 as follows: "One thing is settled beyond question; that the dogmatic statement of Judge Story that the Congress thus assembled exercised de facto and de jure a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue of original power derived from the people,' is wholly unsustained and is completely refuted by the facts."

§ 143. Views of Calhoun and Tucker refuted by Justice Story and others.-Both Mr. Calhoun and Mr. Tucker, however, seem to have entirely lost sight of the propositions maintained by Story,' Curtis, Cooley Miller, Bancroft Davis,

§ 143.

3

1 JUDGE STORY'S VIEWS.

"In confirmation of these views, it may not be without use to refer to the opinions of some of our most eminent judges, delivered on occasions which required an exact examination of the subject. In Chisholm's Executors vs. The State of Georgia, Mr. Chief Justice Jay, who was equally distinguished as a Revolutionary statesman and a general jurist, expressed himself to the following effect: The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the crown of Great Britain the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion that the unappropriated lands which belonged to that crown passed, not to the people of the colony or States within whose limits they were situated, but to the whole people. On whatever principle this opinion rested, it did not give way to the other; and thirteen sovereignties were considered as emerging from the principles of the Revolution, combined by local convenience and considerations. The people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly.' In Penhallow vs. Doane, Mr. Justice Paterson, who was also a revolutionary statesman, said, speaking of the period before the ratification of the confederation: The powers of Congress were revolutionary in their nature, arising out of events adequate to every national emergency, and coextensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the centre of force, and the sun of the political system. Congress raised armies, fitted out a navy, and prescribed rules for their government, etc. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America, etc. The danger being imminent and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert or break the violence of the gathering storm. They accordingly grew into union, and formed one great political body, of which Congress was the directing principle and soul, etc. The truth is, that the States, individually, were not known nor recognized as sovereign by foreign nations, nor are they now. The States collectively under Congress, as their connecting point or head, were acknowledged by foreign powers as sovereign, particularly in that acceptation of the term which is applicable to all great national concerns, and in the exercise of which 2 For note 2, see p. 247.

8 For note 3, see p. 248.

and others, who support the broader doctrine that the ideas of independence and unity were of twin birth and co-ordinate other sovereigns would be more immediately interested.' In Ware vs. Hylton, Mr. Justice Chase, himself also a Revolutionary statesman, said: 'It has been inquired, what powers Congress possessed from the first meeting in September, 1774, until the ratification of the confederation on the 1st of March, 1781. It appears to me that the powers of Congress during that whole period were derived from the people they represented, expressly given through the medium of their State conventions or State legislatures; or that after they were exercised, they were impliedly ratified by the acquiescence and obedience of the people, etc. The powers of Congress originated from necessity, and arose out of it, and were only limited by events; or, in other words, they were revolutionary in their nature. Their extent depended on the exigencies and necessities of public affairs. I entertain this general idea, that the several States retained all internal sovereignty; and that Congress properly possessed the rights of external sovereignty. In deciding on the powers of Congress, and of the several States before the confederation, I see but one safe rule, namely, that all the powers actually exercised by Congress before that period were rightfully exercised on the presumption, not to be controverted, that they were so authorized by the people they represented, by an express or implied grant; and that all the powers exercised by the State conventions or State legislatures were also rightfully exercised on the same presumption of authority from the people." Commentaries on the Constitution of the United States by Joseph Story, L.L. D. 5th edition, Boston, 1891, vol. I, § 216, pp. 159-160.

2 MR. CURTIS' VIEWS.

The instructions to delegates also appear in a condensed form as a foot-note to pages 11 and 12 of volume 1, Curtis' Constitutional History of the United States. Mr. Curtis has followed the views of Mr. Justice Story; his views are expressed as follows, pages 25 and 26:

"It is apparent, therefore, that, previously to the Declaration of Independence, the people of the several colonies had established a national government of a revolutionary character, which undertook to act, and did act, in the name and with the general consent of the inhabitants of the country. This government was established by the union, in one body, of delegates representing the people of each colony; who, after they had thus united for national purposes, proceeded, in their respective jurisdictions, by means of conventions and other temporary arrangements, to provide for their domestic concerns by the establishment of local governments, which should be the successors of that authority of the British crown which they had 'everywhere suppressed.' The fact that these local or state governments were not formed until a union of the people of the different colonies for national purposes had already taken place, and until the Congress had authorized and recommended their establishment, is of great importance in the constitutional history of this country; for it shows that no