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

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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.

But, whatever may have been the condition of the colonies prior to 1781, there is no room for doubt on the subject, after the final ratification of the articles of confederation in that year. Those articles declare that "each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not, by this confederation expressly delegated to the United States, in congress assembled." The obvious construction of this clause requires that we should apply these latter words, only to "powers, jurisdiction and rights;" some of which, as enjoyed by the States under the previous government, were clearly surrendered by the articles of confederation. But their entire sovereignty, their entire freedom, and their entire independence, are reserved, for these are not partible. Indeed, this is clear enough, from the provisions of that instrument, which, throughout, contemplate the States as free, sovereign and independent. It is singular, too, that it should escape the observation of any one, that the very fact of adopting those articles, and the course pursued in doing so, attest, with equal clearness and strength, the previous sovereignty and independence of the States. What had the States in their separate character to do with that act, if they formed altogether "one people?" And yet the States, and the States alone, performed it, each acting for itself, and binding itself. The articles were confirmed by ten States, as early as 1778, by another in 1779 and by another in [ *48 ] *1780; and yet they were not obligatory until Maryland acceded to them, 1781. Nothing less than the ratification of them by all the States, each acting separately for itself, was deemed sufficient to give them any binding force or authority.

There is much force and meaning in the word "retains," as it occurs in the clause above quoted. Nothing can properly be said to be retained, which was not possessed before; and of course, the States possessed before "sovereignty, freedom and independence." These they retained without any qualification, or limitation, and they also retained every "power, jurisdiction and right," which they did not then expressly surrender.

If these views of the subject be not wholly deceptive, our author has hazarded, without due caution, the opinion that the colonies formed "one people," either before or after the declaration of independence; and that they are not to be regarded as sovereign States, after that event. For myself, I profess my utter inability to perceive, in their condition, any nearer approach to political personality or individuality," than may be found in a mere league or confederation between sovereign and independent states; and a very loose confederation theirs undoubtedly was.