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

by Abel P. Upshur

The author's conclusion is not better sustained by the nature and extent of the powers exercised by the revolutionary government. It has already been stated, that no original powers of legislation were granted to the congresses of 1774 and 1775; and it is only from their acts that we can determine what powers they actually exercised. The circumstances under which they were called into existence precluded the possibility of any precise limitations of their powers, even if it had been designed to clothe them with the functions of government. The colonies were suffering under common oppressions, and were threatened with common dangers, from the mother country. The great object which they had in view was to produce that concert of action among themselves which would best enable them to resist their common enemy, and best secure the safety and liberties of all. Great confidence must necessarily be reposed in public rulers [ *31 ]*under circumstances of this sort. We may well suppose, therefore, that the revolutionary government exercised every power which appeared to be necessary for the successful prosecution of the great contest in which they were engaged; and we may, with equal propriety, suppose that neither the people nor the colonial governments felt any disposition to scrutinize very narrowly any measure which promised protection and safety to themselves. They knew that the government was temporary only; that it was permitted only for a particular and temporary object, and that they could at any time recall any and every power which it had assumed. It would be a violent and forced inference, from the powers of such an agency, (for was not a government, although I have sometimes, for convenience, called it so,) however great they might be, to say that the people, or States, which established it, meant thereby to me their distinctive character, to merge their distinctive character, to surrender all the rights and privileges which belonged to them as separate communities, and to consolidate themselves into one nation.

In point of fact, however, there was nothing in the powers exercised by the revolutionary government, so far as they can be known from their acts, inconsistent with the perfect sovereignty and independence of the States. These were always admitted in terms, and were never denied in practice. So far as external relations were concerned, congress seems to have exercised every power of a supreme government. They assumed the right to "declare war and to make peace; to authorize captures; to institute appellate prize courts; to direct and control all national, military and naval operations; to form alliances and make treaties; to contract debts and issue bills of credit on national account." These powers were not "exclusive," however, as our author supposes. On the contrary, troops were raised, vessels of war were commissioned, and various military operations were conducted by the colonies, on their own separate means and authority. Ticonderoga was taken by the troops of Connecticut before the declaration of independence; Massachusetts and Connecticut fitted out armed vessels to cruise against those of England, in October, 1775; South Carolina soon followed their example. In 1776, New Hampshire authorized her executive to issue letters of marque and reprisal.

These instances are selected out of many, as sufficient to show that in the conduct of war congress possessed no "exclusive" power, and that the colonies (or States) retained, and actually asserted, their own sovereign right and power as to that matter. And not as to that matter alone, for New Hampshire established post offices. The words of our author may, indeed, import that the power of congress over the [ *32 ]*subject of war was "exclusive" only as to such military and naval operations as he considers national, that is, such as were undertaken by the joint power of all the colonies; and, if so, he is correct. But the comma after the word "national" suggests a different interpretation. At all events, the facts which I have mentioned prove that congress exercised no power which was considered as abridging the absolute sovereignty and independence of the States.

Many of those powers which, for greater convenience, were entrusted exclusively to congress, could not be effectually exerted except by the aid of the State authorities. The troops required by congress were raised by the States, and the commissions of their officers were countersigned by the governors of the States. Congress were allowed to issue bills of credit, but they could not make them a legal tender, nor punish the counterfeiter of them. Neither could they bind the States to redeem them, nor raise by their own authority the necessary funds for that purpose. Congress received ambassadors and other public ministers, yet they had no power to extend to them that protection which they receive from the government of every sovereign nation. A man by the name of De Longchamps entered the house of the French minister plenipotentiary in Philadelphia, and there threatened violence to the person of Francis Barbe Marbois, secretary of the French legation, consul general of France, and consul for the state of Pennsylvania; he afterwards assaulted and beat him in the public street. For this offence, he was indicted and tried in the court of Oyer and Terminer of Philadelphia, and punished under its sentence. The case turned chiefly upon the law of nations, with reference to the protection which it secures to foreign ministers. A question was made, whether the authorities of Pennsylvania should not deliver up De Longchamps to the French government to be dealt with at their pleasure. It does not appear that the federal government was considered to possess any power over the subject, or that it was deemed proper to invoke its counsel or authority in any form. This case occurred in 1784, after the adoption of the articles of confederation; but if the powers of the federal government were less under those articles than before, it only proves that, however great its previous powers may have been, they were held at the will of the States, and were actually recalled by the articles of confederation. Thus it appears that, in the important functions of raising an army, of providing a public revenue, of paying public debts, and giving security to the persons of foreign ministers, the boasted "sovereignty" of the federal government was merely nominal, and owed its entire [ *33 ]*efficiency to the co-operation and aid of the State governments. Congress had no power to coerce those governments; nor could it exercise any direct authority over their individual citizens.

Although the powers actually assumed and exercised by congress were certainly very great, they were not always acquiesced in, or allowed, by the States. Thus, the power to lay an embargo was earnestly desired by them, but was denied by the States. And in order the more clearly to indicate that many of their powers were exercised merely by sufferance, and at the same time time to lend a sanction to their authority so far as they chose to allow it, it was deemed necessary, by at least one of the States, to pass laws indemnifying those who might act in obedience to the resolutions of that body.^[1]

A conclusive proof, however, of the true relation which the colonies held to the revolutionary government, even in the opinion of congress itself, is furnished by their own journals. In June, 1776, that body recommended the passing of laws for the punishment of treason; and they declare that the crime shall be considered as committed against the colonies individually, and not against them all, as united or confederated together. This could scarcely have been so, if they had considered themselves "a government de facto and de jure," clothed with "sovereign authority." The author, however, is not satisfied to rest his opinion upon historical facts; he seeks also to fortify himself by a judicial decision. He informs us that, "soon after the organization of the present government, the question [of the powers of the continental congress] was most elaborately discussed before the supreme court of the United States, in a case calling for an exposition of the appellate jurisdiction of congress in prize causes, before the ratification of the confederation. The result of that examination was, that congress before the confederation possessed, by the consent of the people of the United States, sovereign and supreme powers for national purposes; and, among others, the supreme powers of peace and war, and, as an incident, the right of entertaining appeals in the last resort, in prize causes, even in opposition to State legislation. And that the actual powers exercised by congress, in respect to national objects, furnished the best exposition of its constitutional authority, since they emanated from the people, and were acquiesced in by the people."

There is in this passage great want of accuracy, and perhaps some want of candor. The author, as usual, neglects to cite the judicial [ *34 ]*decision to which he alludes, but it must be the case of Penhallow and others against Doane's administrators. (3 Dallas' Reports, 54.) Congress, in November, 1775, passed a resolution, recommending to the several colonies to establish prize courts, with a right of appeal from their decisions to congress. In 1776, New Hampshire accordingly passed a law upon the subject, by which an appeal to congress was allowed in cases of capture by vessels in the service of the united colonies; but where the capture was made by "a vessel in the service of the united colonies and of any particular colony or person together," the appeal was allowed to the superior court of New Hampshire. The brigantine Susanna was captured by a vessel owned and commanded by citizens of New Hampshire, and was duly condemned as prize by her own court of admiralty. An appeal was prayed to congress and denied; and thereupon an appeal to the superior court of New Hampshire was prayed and allowed. From the decision of this court an appeal was taken to congress, in the mode prescribed by their resolution, and the case was disposed of by the court of appeals, appointed by congress to take cognizance of such cases. After the adoption of the present constitution and the organization of the judiciary system under it, a libel was filed in the district court of New Hampshire, to carry into effect the sentence of the court of appeals above-mentioned. The cause being legally transferred to the circuit court, was decided there, and an appeal allowed to the supreme court. That court, in its decision, sustains the jurisdiction of the court of appeals established by congress. Mr. Justice Patterson's opinion is founded mainly upon these grounds: That the powers actually exercised by congress ought to be considered as legitimate, because they were such as the occasion absolutely required, and were approved and acquiesced in by "the people;" that the authority ultimately and finally to decide on all matters and questions touching the law of nations does reside and is vested in the sovereign supreme power of war and peace; that this power was lodged in the continental congress by the consent and acquiescence of "the people;" that the legality of all captures on the high seas must be determined by the law of nations; that New Hampshire had committed herself upon this subject by voting in favor of the exercise of the same power by congress in the case of the brig Active; that as the commission, under which the capture in the case under consideration was made, was issued by congress, it resulted, of necessity, that the validity of all captures made by virtue of that commission should be judged of by congress, or its constituted authority, because "every one must be amenable to the [ *35 ]*authority under which he acts." It is evident that this opinion, while it sustains the authority of congress in the particular case, does not prove its general supremacy, nor that the States had surrendered to it any part of their sovereignty and independence. On the contrary, it affirms that the "sovereign and supreme power of war and peace" was assumed by congress, and that the exercise of it became legitimate, only because it was approved and acquiesced in; and that being thus legitimated, the appellate jurisdiction in prize cases followed as a necessary incident. All the powers, which Patterson contends for as exercised by congress, may well be conceded, without in the slightest degree affecting the question before us; they were as consistent with the character of a federative, as with that of a consolidated government. He does not tell us to what people he alludes, when he says that the powers exercised by congress were approved and ratified by "the people." He does not, in any part of his opinion, authorize the idea of the author, that "congress possessed, before the confederation, by the consent of the people of the United States, sovereign and supreme powers for national purposes." On the contrary, as to one of those powers, he holds the opposite language; and therefore it is fair to presume, that he intended to be so understood in regard to all the rest. This is his language: "The authority exercised by congress, in granting commissions to privateers, was approved and ratified by the several colonies or states, because they received and filled up the commissions and bonds, and returned the latter to congress." This approval and ratification alone rendered, in his opinion, the exercise of this, and other similar powers assumed by congress, legitimate.

Judge Iredell, in delivering his opinion, goes much more fully into the examination of the powers of the revolutionary government. He thinks that, as the power of peace and war was entrusted to congress, they held, as a necessary incident, the power to establish prize courts; and that whatever powers they did in fact exercise, were acquiesced in and consented to, and, consequently, legitimated and confirmed. But he leaves no room to doubt as to the source whence this confirmation was derived. After proving that the several colonies were, to all intents and purposes, separate and distinct, and that they did not form "one people" in any sense of the term, he says, "if congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shown, derived from the people of each province, in the first instance." "The authority was not possessed by congress, unless given by all the States." "I conclude, therefore, that every particle of authority, which originally resided either in [ *36 ]*congress or in any branch of the State governments, was derived from the people who were permanent inhabitants of each province, in the first instance, and afterwards became citizens of each State; that this authority was conveyed by each body politic separately, and not by all the people in the several provinces or states jointly." No language could be stronger than this, to disaffirm the author's conclusion, that the powers exercised by congress were exercised "by the consent of the people of the United States." Certainly, Iredell did not think so.

The other two judges, Blair and Cushing, affirm the general propositions upon which Paterson and Iredell sustained the power of congress in the particular case, but lend no support to the idea of any such unity among the people of the several colonies or states, as our author supposes to have existed. Cushing, without formally discussing the question, expressly says that "he has no doubt of the sovereignty of the States."

This decision, then, merely affirms, what no one has ever thought of denying, that the revolutionary government exercised every power which the occasion required; that, among these, the powers of peace and war were most important, because congress, alone, represented all the colonies, and could, alone, express the general will, and wield the general strength; that wherever the powers of peace and war are lodged, belongs also the right to decide all questions touching the laws of nations; that prize causes are of this character; and, finally, that all these powers were not derived from any original grant, but are to be considered as belonging to congress, merely because congress exercised them, and because they were sustained in so doing by the approbation of the several colonies or states, whose representatives they were. Surely, then, our author was neither very accurate nor very candid, in so stating this decision as to give rise to the idea that, in the opinion of the supreme court, congress possessed original sovereign powers, by the consent of "the people of the United States." Even, however, if the court had so decided, in express terms, it would have been of no value in the present enquiry, as will by-and-by be shown.

The examination of this part of the subject has probably been already drawn out to too great an extent; but it would not be complete without some notice of another ground, upon which our author rests his favorite idea—that the people of the colonies formed "one people," or nation. Even if this unity was not produced by the appointment of the revolutionary government, or by the nature of the powers exercised by them, and acquiesced in by the people, he thinks there can [ *37 ]*be no doubt that this was the necessary result of the declaration of independence. In order that he may be fully understood upon this point, I will transcribe the entire passage relating to it.

"In the next place, the colonies did not severally act for themselves, and proclaim their own independence. It is true that some of the States had previously formed incipient governments for themselves; but it was done in compliance with the recommendations of congress. Virginia, on the 29th of June, 1776, by a convention of delegates, declared 'the government of this country, as formerly exercised under the crown of Great Britain, totally dissolved,' and proceeded to form a new constitution of government. New Hampshire also formed a new government, in December, 1775, which was manifestly intended to be temporary, 'during (as they said) the unhappy and unnatural contest with Great Britain.' New Jersey, too, established a frame of government, on the 2d July, 1776; but it was expressly declared that it should be void upon a reconciliation with Great Britain. And South Carolina, in March, 1776, adopted a constitution of government; but this was in like manner 'established until an accommodation between Great Britain and America could be obtained.' But the declaration of the independence of all the colonies was the united act of all. It was 'a declaration by the representatives of the United States of America, in congress assembled;' 'by the delegates appointed by the good people of the colonies,' as, in a prior declaration of rights, they were called. It was not an act done by the State governments then organized, nor by persons chosen by them. It was emphatically the act of the whole people of the united colonies, by the instrumentality of their representatives, chosen for that, among other purposes. It was an act not competent to the State governments, or any of them, as organized under their charters, to adopt. Those charters neither contemplated the case nor provided for it. It was an act of original, inherent sovereignty by the people themselves, resulting from their right to change the form of government, and to institute a new government, whenever necessary for their safety and happiness. So the declaration of independence treats it. No State had presumed, of itself, to form a new government, or provide for the exigencies of the times, without consulting congress on the subject; and when they acted, it was in pursuance of the recommendation of congress. It was, therefore, the achievement of the whole, for the benefit of the whole. The people of the united colonies made the united colonies free and independent states, and absolved them from allegiance to the British crown. The declaration of independence has, accordingly, always [ *38 ]*been treated as an act of paramount and sovereign authority, complete and perfect per se; and ipso facto working an entire dissolution of all political connexion with, and allegiance to, Great Britain. And this, not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice."

The first question which this passage naturally suggests to the mind of the reader is this: if two or more nations or people, confessedly separate, distinct and independent, each having its own peculiar government, without any "direct political connexion with each other," yet owing the same allegiance to one common superior, should unite in a declaration of rights which they believed belonged to all of them alike, would that circumstance, alone, make them "one people?" Stripped of the circumstances with which the author has surrounded it, this is, at last, the only proposition involved. If Spain, Naples and Holland, while they were "dependencies" of the imperial crown of France, had united in declaring that they were oppressed, in the same mode and degree, by the measures of that crown, and that they did, for that reason, disclaim all allegiance to it, and assume the station of "free and independent states," would they thereby have become one people? Surely this will not be asserted by any one. We should see, in that act, nothing more than the union of several independent sovereignties, for the purpose of effecting a common object, which each felt itself too weak to effect, alone. Nothing would be more natural, than that nations so situated should establish a common military power, a common treasury, and a common agency, through which to carry on their intercourse with other powers; but that all this should unite them together, so as to form them into one nation, is a consequence not readily perceived. The case here supposed is precisely that of the American colonies, if those colonies were, in point of fact, separate, distinct, and independent of one another. If they were so, (and I think it has been shown that they were,) then the fact that they united in the declaration of independence does not make them "one people," any more than a similar declaration would have made Spain, Naples and Holland one people; if they were not so, then they were one people already, and the declaration of independence did not render them either more or less identical. It is true, the analogy here supposed does not hold in every particular; the relations of the colonies to one another were certainly closer, in many respects, than those of Spain, Naples and Holland, to one another. But as to all purposes involved in the present enquiry, the analogy is perfect. The effect attributed to the declaration of independence presupposes that the [ *39 ]*colonies were not "one people" before; an effect which is in no manner changed or modified by any other circumstance in their relation to one another. That fact, alone, is necessary to be enquired into; and until that fact is ascertained, the author's reasoning as to the effect of the declaration of independence, in making them "one people," does not apply. He is obliged, therefore, to abandon the ground previously taken, to wit, that the colonies were one people before the declaration of independence. And having abandoned it, he places the colonies, as to this question, upon the footing of any other separate and distinct nations; and, as to these, it is quite evident that the conclusion which he has drawn, in the case of the colonies, could not be correct, unless it would be equally correct in the case of Spain, Naples and Holland, above supposed.

1. This was done by Pennsylvania.—See 2 Dallas, Col. L. of Penn. 3.