A Brief Enquiry into the Nature and Character of our Federal Government/V

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A Brief Enquiry into the Nature and Character of our Federal Government by Abel P. Upshur
Chapter V
Chapter breaks are not found in the original; they were added in an 1868 edition. References to "our author" or "the author" refer to Joseph Story, the author of the work being critiqued by Upshur.

The mere fact, then, that the colonies united in the declaration of independence, did not necessarily make them one people. But it may be said that this fact ought, at least, to be received as proof that they considered themselves as one people already. The argument is fair, and I freely let it go for what it is worth. The opinion of the congress of 1775, whatever it may have been, and however strongly expressed, could not possibly change the historical facts. It depended upon those facts, alone, whether the colonies were one people or not. They might by their agreement, expressed through their agents in congress, make themselves one people through all time to come; but their power, as to this matter, could not extend to the time past. Indeed, it is contended, not only by our author, but by others, that the colonies did, by and in that act, agree to become "one people" for the future. They suppose that such agreement is implied, if not expressed, in the following passages. "We, therefore, the representatives of the United States of America," "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." Let us test the correctness of this opinion, by the history of the time, and by the rules of fair criticism.

The congress of 1775, by which independence was declared, was appointed, as has been before shown, by the colonies in their separate and distinct capacity, each acting for itself, and not conjointly with any other. They were the representatives, each of his own colony, and not of any other; each had authority to act in the name of his own colony, and not in that of any other; each colony gave its own vote by its own representatives, and not by those of any other colony. Of course, it was as separate and distinct colonies that they [ *40 ] *deliberated on the declaration of independence. When, therefore, they declare, in the adoption of that measure, that they act as "the representatives of the United States of America," and "in the name and by the authority of the good people of these colonies," they must of course be understood as speaking in the character in which they had all along acted; that is, as the representatives of separate and distinct colonies, and not as the joint representatives of any one people. A decisive proof of this is found in the fact that the colonies voted on the adoption of that measure in their separate character, each giving one vote by all its own representatives, who acted in strict obedience to specific instructions from their respective colonies, and the members signed the declaration in that way. So, also, when they declared that "these united colonies are, and of right ought to be, free and independent states," they meant only that their respective communities, which until then had been dependent colonies, should thereafter be independent states, and that the same union, which existed between them as colonies, should be continued between them as states. The measure under consideration looked only to their relation to the mother country, and not to their relation to one another; and the sole question before them was, whether they should continue in a state of dependence on the British crown, or not. Having determined that they would not, they from that moment ceased to be colonies, and became states; united, precisely as before, for the common purpose of achieving their common liberty. The idea of forming a closer union, by the mere act of declaring themselves independent, could scarcely have occurred to any one of them. The necessity of such a measure must have been apparent to all, and it had long before engaged their attention in a different form. Men, of their wisdom and forecast, meditating a measure so necessary to their common safety, would not have left it as a mere matter of inference from another measure. In point of fact, it was already before them, in the form of a distinct proposition, and had been so ever since their first meeting in May, 1775.[1] It is impossible to suppose [ *41 ] *therefore, in common justice to the sagacity of congress, that they meant any thing more by the declaration of independence, than simply to sever the tie which had theretofore bound them to England, and to assert the rights of the separate and distinct colonies, as separate and independent States; particularly as the language which they use is fairly susceptible of this construction. The instrument itself is entitled, "the unanimous declaration of the thirteen United States of America;" of States, separate and distinct bodies politic, and not of "one people" or nation, composed of all of them together; "united," as independent States may be, by compact or agreement, and not amalgamated, as they would be, if they formed one nation or body politic.

Is it true then, as the author supposes, that the "colonies did not severally act for themselves, and proclaim their own independence?" It is true that they acted together; but is it not equally true that each acted for itself alone, without pretending to any right or authority to bind any other? Their declaration was simply their joint expression of their separate wills; each expressing its own will, and not that of any other; each bound by its own act, and not responsible for the act of any other. If the colonies had severally declared their independence through their own legislatures, and had afterwards agreed to unite their forces together to make a common cause of their contest, and to submit their common interests to the management of a common council chosen by themselves, wherein would their situation have been different? And is it true that this declaration of independence "was not an act done by the State governments then organized, nor by persons chosen by them?" that "it was emphatically the act of the whole people of the united colonies, by the instrumentality of [ *42 ] *their representatives chosen for that among other purposes?" What representatives were those that were chosen by "the people of the united colonies"? When and how were they chosen? Those who declared the colonies independent were chosen more than a year before that event; they were chosen by the colonies separately, and, as has already been shown, through the instrumentality of their own "governments then organized;" they were chosen, not for the "purpose" of declaring the colonies independent, but of protecting them against oppression, and bringing about a reconciliation with the parent country, upon fair terms, if possible. (Jefferson's Notes, 1st ed. 128, 129.) If there were any other representatives than these concerned in the declaration of independence, if that act was performed by representatives chosen by "the whole people of the colonies;" for that or any other purpose, if any such representatives could possibly have been chosen by the colonies as then organized, no historical record, that has yet met my view, contains one syllable of the matter.

The author seems to attach but little importance to the fact, that several of the colonies had established separate governments for themselves, prior to the declaration of independence. He regards this as of little consequence; because he thinks that the colonies so acted only in pursuance of the recommendation of congress, and would not have "presumed" to do it, "without consulting congress upon the subject;" and because the governments so established were, for the most part, designed to be temporary, and to continue only during the contest with England. Such recommendation was given in express terms, to New Hampshire and South Carolina, in November, 1775, and to Virginia, in December of that year; and on the 10th May, 1776, "it was resolved to recommend to the respective assemblies and conventions of the united colonies where no government sufficient to the exigencies of their affairs had been established, to adopt such a government as should, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and of America in general." The preamble to this resolution was not adopted till the 15th May. (1 Elliott's Debates, 80, 83.) It is evident, from the language here employed, that congress claimed no power over the colonies as to this matter, and no right to influence or control them in the exercise of the important function of forming their own governments. It recommended only; and, contemplating the colonies as separate and distinct, referred it to the assembly or convention of each, to establish any form of government which might be acceptable to its own people. Of what consequence was it, [ *43 ] *whether the colonies acted upon the recommendation and advice of others, or merely upon their own will and counsels? With whatever motive the act was performed, it was one of supreme and sovereign power, and such as could not have been performed except by a sovereign people. And whether the government so established was intended to last for ever, or only for a limited time, did not affect its character as an act of sovereign power. In point of fact, then, the colonies which established such governments did, by that very act, assert their sovereignty and independence. They had no power, under their charters, to change their governments. They could do so only by setting their charters aside, and acting upon their inherent, sovereign right: and this was revolution. In effect, therefore, many of the colonies had declared their independence prior to the 4th July, 1776; they had commenced the revolution, and were considered by England as in a state of rebellion. Of Virginia this is emphatically true. Her declaration of rights was made on the 12th of June, 1776; and her constitution was adopted on the 29th of the same month. This constitution continued until 1829. Her subsequent declaration of independence, on the 4th of July, in common with the other colonies, was but a more public, though not a more solemn affirmation of what she had previously done; a pledge to the whole world, that what she had resolved on in her separate character, she would unite with the other colonies in performing. She could not declare herself free and independent more distinctly, in that form, than she had already done, by asserting her sovereign and irresponsible power, in throwing off her former government, and establishing a new one for herself.[2] There is yet another view of this subject, which [ *44 ] *cannot be properly omitted. It has already been shown that, prior to the revolution, [ *45 ] *the colonies were separate and distinct, and were not, in any political sense, or for any purpose of government, "one people." The sovereignty over them was in the British crown; but that sovereignty was not jointly over all, but separately over each, and might have been abandoned as to some, and retained as to others. The declaration of independence broke this connexion. By that act, and not by the subsequent recognition of their independence, the colonies became free States. What then became of the sovereignty of which we speak? It could not be in abeyance; the moment it was lost by the British crown it must have vested somewhere else. Doubtless it vested in the states themselves. But, as they were separate and distinct as colonies, the sovereignty over one could not vest, either in whole or in part, in any other. Each took to itself that sovereignty which applied to itself, and for which alone it had contended with the British crown, to wit, the sovereignty over itself. Thus each colony became a free and sovereign State. This is the character which they claim in the very terms of the declaration of independence; in this character they formed the [ *46 ] *colonial government, and in this character that government always regarded them. Indeed, even in the earlier treaties with foreign powers, the distinct sovereignty of the States is carefully recognized. Thus, the treaty of alliance with France, in 1778, is made between "the most Christian king and the United States of North America to wit: New Hampshire, Massachusetts Bay, Rhode Island, Connecticut," &c., enumerating them all by name. The same form is observed in the treaty of amity and commerce with the States General of the United Netherlands, in 1782, and in the treaty with Sweden, in 1783. In the convention with the Netherlands, in 1782, concerning recaptured vessels, the names of the States are not recited, but "the United States of America" is the style adopted; and so also in some others. This circumstance shows that the two forms of expression were considered equipollent; and that foreign nations, in treating with the revolutionary government, considered that they treated with distinct sovereignties, through their common agent, and not with a new nation, composed of all those sovereign countries together. It is true, they treated with them jointly, and not severally; they considered them all bound to the observance of their stipulations, and they believed that the common authority, which was established between and among them, was sufficient to secure that object. The provisional articles with Great Britain, in 1782, by which our independence was acknowledged, proceed upon the same idea. The first article declares, that "His Britannic Majesty acknowledges the said United States, to wit, New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free, sovereign and independent States; that he treats with them as such," &c. Thus the very act, by which their former sovereign releases them from their allegiance to him, confirms to each one by name the sovereignty within its own limits, and acknowledges it to be a "free, sovereign, and independent State;" united, indeed, with all the others, but not as forming with them any new and separate nation. The language employed is not suited to convey any other idea. If it had been in the contemplation of the parties, that the States had merged themselves into a single nation, something like the following formula would naturally have suggested itself as proper. "His Britanic Majesty acknowledges that New Hampshire, Massachusetts Bay, &c., former colonies of Great Britain, and now united together as one people, are a free, sovereign and independent state," &c. The difference between the two forms of expression, and the strict adaptation of each [ *47 ] *to the state of things which it contemplates, will be apparent to every reader.

It requires strong and plain proof to authorize us to say, that a nation once sovereign has ceased to be so. And yet our author requires us to believe this of the colonies, although he acknowledges that he cannot tell, with any degree of confidence or precision, when, how, or to what extent the sovereignty, which they acquired by declaring their independence was surrendered. According to him, the colonies are to be presumed to have yielded this sovereignty to a government established by themselves for a special and temporary purpose, which existed only at their will, and by their aid and support; whose powers were wholly undefined, and for the most part, exercised by usurpation on its part, and legitimated only by the acquiescence of those who appointed it; whose authority was without any adequate sanction which it could itself apply, and which, as to all the important functions of sovereignty, was a mere name—the shadow of power without its substance! If the fact was really so, I venture to affirm that the history of the world affords no similar instance of folly and infatuation.

  1. A document which I have not met with elsewhere, but which may be found in the Appendix to Professor Tucker's elaborate and instructive Life of Jefferson, affords important evidence upon this point. As early as May, 1775, the plan of a "confederation and perpetual union" among the colonies, was prepared and proposed for adoption. It was not in fact adopted, but its provisions show, in the strongest manner, in what light the colonies regarded their relation to one another. The proposed union was called "a firm league of friendship;" each colony reserved to itself "as much as it might think proper of its own present laws, customs, rights, privileges and peculiar jurisdictions, within its own limits; and may amend its own constitution as may seem best to its own assembly or convention;" the external relations of the colonies were to be managed by their general government alone, and all amendments of their "constitution," as they termed it, were to be proposed by congress and "approved by a majority of the colony assemblies." It can scarcely be contended that this "league of friendship," this "cenfederation and perpetual union," would, if it had been adopted, have rendered the people of the several colonies less identical than they were before. If, in their own opinion, they were "one people" already, no league or confederation was necessary, and no one would have thought of proposing it. The very fact, therefore, that it was proposed, as a necessary measure "for their common defence against their enemies, for the security of their liberties and their properties, the safety of their persons and families, and their mutual and general welfare," proves that they did not consider themselves as already "one people," in any sense or to any extent which would enable them to effect those important objects.

    This proposition was depending and undetermined at the time of the declaration of independence.

  2. In point of fact, Virginia declared her independence on the 15th of May, 1776. The following beautiful allusion to that scene is extracted from an address delivered by Judge Beverly Tucker, of William and Mary College, before the Petersburg Lyceum, on the 15th May, 1839.

    "That spectacle, on this day sixty-three years, Virginia exhibited to the world; and the memory of that majestic scene it is now my task to rescue from oblivion. It was on that day that she renounced her colonial dependence on Great Britain, and separated herself forever from that kingdom. Then it was that, bursting the manacles of a foreign tyranny, she, in the same moment, imposed upon herself the salutary restrains of law and order. In that moment she commenced the work of forming a government, complete within itself; and having perfected that work, she, on the 29th of June in the same year, performed the highest function of independent sovereignty, by adopting, ordaining and establishing the constitution under which all of us were born. Then it was that, sufficient to herself for all the purposes of government, she prescribed that oath of fealty and allegiance to her sole and separate sovereignty, which all of us, who have held any office under her authority, have solemnly called upon the Searcher of hearts to witness and record. In that hour, gentlemen, it could not be certainly known, that the other colonies would take the same decisive step. It was, indeed, expected. In the same breath in which she had declared her own independence, Virginia had advised it. She had instructed her delegates in the general congress to urge it; and it was by the voice of one of her sons, whose name will ever proudly live in her history, that the word of power was spoken, at which the chain that bound the colonies to the parent kingdom fell asunder, 'as flax that severs at the touch of fire.' But even then and while the terms of the general declaration of independence were yet unsettled, hers had already gone forth. The voice of her defiance was already ringing in the tyrant's ears; hers was the cry that summoned him to the strife; hers was the shout that invited his vengeance: 'Me! me! Adsum qui fed; in me, convertite ferrum.'"

    This beautiful address, abounding in patriotic sentiments, and sound political doctrines, clothed in the richest language, ought to be in the hands of every citizen, and particularly of those of Virginia. The following extract from the Journals of the Convention, containing the history of this interesting event, cannot fail to be acceptable to every American reader.

    "Wednesday, May 15th, 1776.

    "The convention, then, according to the order of the day, resolved itself into a committee on the state of the colony; and, after some time spent therein, Mr. President resumed the chair, and Mr. Cary reported that the committee had, according to order, had under their consideration the state of the colony, and had come to the following resolutions thereupon; which he read in his place, and afterwards delivered in at the clerk's table, where the same were again twice read, and unanimously agreed to, one hundred and twelve members being present.

    "For as much as all the endeavors of the united colonies, by the most decent representations and petitions to the king and parliament of Great Britain, to restore peace and security to America under the British government, and a reunion with that people, upon just and liberal terms, instead of a redress of grievances, have produced, from an imperious and vindictive administration, increased insult, oppression, and a vigorous attempt to effect our total destruction. By a late act, all these colonies are declared to be in rebellion, and out of the protection of the British crown, our properties subjected to confiscation, our people, when captivated, compelled to join in the plunder and murder of their relations and countrymen, and all former rapine and oppression of Americans declared legal and just. Fleets and armies are raised, and the aid of foreign troops engaged to assist these destructive purposes. The king's representative in this colony hath not only withheld all the powers of government from operating for our safety, but, having retired on board an armed ship, is carrying on a piratical and savage war against us, tempting our slaves by every artifice to resort to him, and training and employing them against their masters.

    "In this state of extreme danger, we have no alternative left, but an abject submission to the will of those overbearing tyrants, or a total separation from the crown and government of Great Britain, uniting and exerting the strength of all America for defence, and forming alliances with foreign powers for commerce and aid in war. Wherefore, appealing to the Searcher of all hearts for the sincerity of former declarations, expressing our desire to preserve our connexion with that nation, and that we are driven from that inclination by their wicked councils, and the eternal laws of self-preservation; resolved, unanimously, that the delegates appointed to represent this colony in general congress, be instructed to propose to that respectable body, to declare the united colonies free and independent states, absolved from all allegiance to, or dependence upon the crown or parliament of Great Britain; and that they give the assent of this colony to that declaration, and to whatever measures may be thought proper and necessary by the congress, for forming foreign alliances, and a confederation of the colonies, at such time and in such manner as to them may seem best. Provided, that the power of forming government for, and the regulations of the internal concerns of each colony be left to the respective colonial legislatures.

    "Resolved, unanimously, that a committee be appointed to prepare a declaration of rights, and such a plan of government, as will be most likely to maintain peace and order in this colony, and secure substantial and equal liberty to the people.

    "And a committee was appointed of the following gentlemen:—Mr. Archibald Cary, Mr. Meriwether Smith, Mr. Mercer, Mr. Henry Lee, Mr. Treasurer, Mr. Henry, Mr. Dandridge, Mr. Edmund Randolph, Mr. Gilmer, Mr. Bland, Mr. Digges. Mr. Carrington, Mr. Thomas Ludwel Lee, Mr. Cabell, Mr. Jones, Mr. Blair, Mr. Fleming, Mr. Tazewell, Mr. Richard Cary, Mr. Bullit, Mr. Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, Mr. Adams, Mr. Read and Mr. Thomas Lewis."

    It is impossible to contemplate this proceeding on the part of Virginia, without being convinced that she acted from her own free and sovereign will; and that she, at least, did "presume" to establish a government for herself, without the least regard to the recommendation or the pleasure of congress."