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

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.
​[ *19 ]*In the execution of the second division of his plan, very little was required of the author, either as a historian or a commentator. Accordingly, he has alluded but slightly to the condition of the colonies during the existence of the revolutionary government, and has sketched with great rapidity, yet sufficiently in detail, the rise, decline and fall of the Confederation. Even here, however, he has fallen into some errors, and has ventured to express decisive and important opinions, without due warrant. The desire to make "the people of the United States" one consolidated nation is so strong and predominant, that it breaks forth, often uncalled for, in every part of his work. He tells us that the first congress of the Revolution was "a general or a national government;" that it "was organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies. He acknowledges that the powers of this congress were but ill-defined; that many of them were exercised by mere usurpation, and were acquiesced in by the people, only from the confidence reposed in the wisdom and patriotism of its members, and because there was no proper opportunity, during the pressure of the war, to raise nice questions of the powers of government. And yet he infers, from the exercise of powers thus ill-defined, and, in great part, usurped, that "from the moment of the declaration of independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto," &c.
A very slight attention to the history of the times will place this subject in its true light. The colonies complained of oppressions from the mother country, and were anxious to devise some means by which their grievances might be redressed. These grievances were common to all of them; for England ​made no discrimination between them in the general course of her colonial policy. Their rights, as British subjects, had never been well defined; and some of the most important of these rights, as asserted by themselves, had been denied by the British crown. As early as 1765 a majority of the colonies had met together in congress, or convention, in New York, for the purpose of deliberating on these grave matters of common concern; and they then made a formal declaration of what they considered their rights, as colonists and British subjects. This measure, however, led to no redress of their grievances. On the contrary, the subsequent measures of the British government gave new and just causes of complaint; so that, in 1774, it was deemed necessary that [ *20 ]*the colonies should again meet together, in order to consult upon their general condition, and provide for the safety of their common rights. Hence the congress which met at Carpenters' Hall, in Philadelphia, on the 5th of September, 1774. It consisted of delegates from New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut from the city and county of New York, and other counties in the province of New York, New Jersey, Pennsylvania, Newcastle, Kent, and Sussex in Delaware, Maryland, Virginia, and South Carolina. North Carolina was not represented until the 14th September, and Georgia not at all. It is also apparent, that New York was not represented as a colony, but only through certain portions of her people; in like manner, Lyman Hall was admitted to ​his seat, in the succeeding congress, as a delegate from the parish of St. Johns, in Georgia, although he declined to vote on any question requiring a majority of the colonies to carry it, because he was not the representative of a colony. This congress passed a variety of important resolutions, between September, 1774, and the 22d October, in the same year; during all which time Georgia was not represented at all; for even the parish of St. John's did not appoint a representative till May, 1775. In point of fact, the congress was a deliberative and advisory body, and nothing more; and, for this reason, it was not deemed important, or, at least, not indispensable, that all the colonies should be represented, since the resolutions of congress had no obligatory force [ *21 ]*whatever. It was appointed for the sole purpose of taking into consideration the general condition of the colonies, and of devising and recommending proper measures, for the security of their rights and interests. For these objects no precise powers and instructions were necessary, and beyond them none were given. Neither does it appear that any precise time was assigned for the duration of congress. The duty with which it was charged was extremely simple; and it was taken for granted that it would dissolve itself as soon as the duty should be performed. ​It is perfectly apparent that the mere [ *22 ]*appointment of this congress did not make the people of all the ​colonies "one people," nor a "nation [ *23 ]*de facto." All the colonies did not unite in the appointment, neither as colonies nor by any portion of their people acting in their primary assemblies, as has already been shown. The colonies were not independent, and had not even resolved to declare themselves so at any future time. On the contrary, they were extremely desirous to preserve and continue their connexion with the parent country, and congress was charged with the duty of devising such measures as would enable them to do so, without involving a surrender of their rights as British subjects. It is equally clear that the powers, with which congress was clothed, did not flow from, nor constitute "one people," or " ​nation de facto," and that that body was not "a general or national government," nor a government of any kind whatever. The existence of such government was absolutely inconsistent with the allegiance which the colonies still acknowledged to the British crown. Our author himself informs us in a passage already quoted, that they had no power to form such government, nor to enter into "any league or treaty among themselves." Indeed, congress did not claim any legislative power whatever, nor could it have done so, consistently with the political relations which the colonies still acknowledged and desired to preserve. Its acts were in the form of resolutions, and not in the form of laws; it recommended to its constituents whatever it believed to be for their advantage, but it commanded nothing. Each colony, and the people thereof, were at perfect liberty to act upon such recommendation or not, as they might think proper.
​On the 22d October, 1774, this congress dissolved [ *24 ]*itself, having recommended to the several colonies to appoint delegates to another congress, to be held in Philadelphia in the following May. Accordingly delegates were chosen, as they had been chosen to the preceding congress, each colony and the people thereof acting for themselves, and by themselves; and the delegates thus chosen were clothed with substantially the same powers, for precisely the same objects, as in the former congress. Indeed, it could not have been otherwise; for the relations of the colonies were still unchanged, and any measure establishing "a general or national government," or uniting the colonies so as to constitute them "a nation de facto," would have been an act of open rebellion, and would have severed at once all the ties which bound them to the mother country, and which they were still anxious to preserve. New York was represented in this congress precisely as she had been in the former one, that is, by delegates chosen by a part of her people; for the royal party was so strong in that colony, that it would have been impossible to obtain from the legislature an expression of approbation of any measure of resistance to British authority. The accession of Georgia to the general association was not made known till the 20th of July, and her delegates did not take their seats till the 13th of September. In the mean time congress had proceeded in the discharge of its duties, and some of its [ *25 ]*most important acts, and among the rest the appointment of a commander-in-chief of their armies, were performed while these two colonies were unrepresented. Its acts, like those of the former congress, were in the form of resolution and recommendation; for as it still held out the hope of reconciliation with the parent country, it did not venture to assume the function of authoritative legislation. It continued to hold this attitude and to act in this mode till the 4th of July, 1776, when it declared that the colonies there represented (including New York, which had acceded after the ​battle of Lexington,) were, and of right ought to be, free and independent States.
​It is to be remarked, that no new powers were [ *26 ]*conferred on congress after the declaration of independence. Strictly speaking, they had no authority to make that declaration. They were not appointed for any such purpose, but precisely the reverse; and although some of them were expressly authorized to agree to it, yet others were not. Indeed, we are informed by Mr. Jefferson, that the declaration was opposed by some of the firmest patriots of the body, and among the rest, by R. R. Livingston, Dickenson, Wilson, and E. Rutlege, on the ground that it was premature; that the people of New York, New Jersey, Maryland and Delaware were not yet ripe for it, but would [ *27 ]*soon unite with the rest, if not indiscreetly urged. In venturing upon so bold a step, congress acted precisely as they did in all other cases, in the name of the States whose representatives they were, and with a full reliance that those States would confirm whatever they might do for the general good. They were, strictly, agents or ministers of independent States, acting each under the authority and instructions of ​his own State, and having no power whatever, except what these instructions conferred. The States themselves were not bound by the resolves of congress, except so far as they respectively authorized their own delegates to bind them. There was no original grant of powers to that body, except for deliberation and advisement; there was no constitution, no law, no agreement, to which they could refer, in order to ascertain the extent of their powers. The members did not all act under the same instructions, nor with the same extent of authority. The different States gave different instructions, each according to its own views of right and policy, and without reference to any general scheme to which they were all bound to conform. Congress had in fact no power of government at all, nor had it that character of permanency which is implied in the idea of government. It could not pass an obligatory law, nor devise an obligatory sanction, by virtue of any inherent power in itself. It was, as already remarked, precisely the same body after the declaration of independence as before. As it was not then a government, and could not establish any new or valid relations between the colonies, so long as they acknowledged themselves dependencies of the British crown, they certainly could not do so after the declaration of independence, without some new grant of power. The dependent colonies had then become independent States; their political condition and relations were necessarily changed by that circumstance; the deliberative and advisory body, through whom they had consulted together as colonies, was functus officio; the authority which appointed them had ceased to exist, or was superseded by a higher authority. Every thing which they did, after this period and before the articles of confederation, was without any other right or authority than what was derived from the mere consent and acquiescence of the several States. In the ordinary business of that government de facto, which the occasion had called into existence, they did whatever the public interest seemed to require, upon the secure reliance that their acts would be approved and confirmed. In other cases, however, they called for specific grants of power; and in such cases, each representative applied to his own State alone, and not to any other State or ​people. Indeed, as they [ *28 ]*were called into existence by the colonies in 1775, and as they continued in existence, without any new election or new grant of power, it is difficult to perceive how they could form a "general or national government, organized by the people." They were elected by subjects of the king of England; subjects who had no right, as they themselves admitted, to establish any government whatever; and when those subjects became citizens of independent states, they gave no instructions to establish any such government. The government exercised was, as already remarked, merely a government de facto, and no farther de jure than the subsequent approval of its acts by the several States made it so.
This brief review will enable us to determine how far the author is supported in the inferences he has drawn, in the passages last quoted. We have reason to regret that in these, as in many others, he has not been sufficiently specific, either in stating his proposition or in citing his proof. To what people does he allude, when he tells us that the "first general or national government" was organized "by the people?" The first and every recommendation to send deputies to a general congress was addressed to the colonies as such; in the choice of those deputies each colony acted for itself, without mingling in any way with the people or government of any other colony; and when the deputies met in congress, they voted on all questions of public and general concern by colonies, each colony having one vote, whatever was its population or number of deputies. If, then, this government was organized by "the people" at all, it was clearly the people of the several colonies, and not the joint people of all the colonies. And where is the author's warrant for the assertion, that they acted "directly in their primary sovereign capacity, and without the intervention of the functionaries, to whom the ordinary powers of government were delegated in the colonies?" He is in most respects a close follower of Marshall, and he could scarcely have failed to see the following passage, which is found in a note in the 168th page of the second volume of the Life of Washington. Speaking of the Congress of 1774, Marshall says: "The members of this congress were generally elected by the authority of the colonial legislatures, but in some ​instances a different system had been pursued. In New Jersey and Maryland the elections were made by committees chosen in the several counties for that particular purpose; and in New York, where the royal party was very strong, and where it is probable that no legislative act, authorizing an election of members to represent that colony in congress, could have been obtained, the people themselves [ *29 ]*assembled in those places, where the spirit of opposition to the claims of parliament prevailed, and elected deputies, who were very readily received into Congress." Here the general rule is stated to be, that the deputies were elected by the "colonial legislatures," and the instances in which the people acted "directly in their primary, sovereign capacity, without the intervention of the ordinary functionaries of government," are given as exceptions. And even in those cases, in which delegates were appointed by conventions of the people, it was deemed necessary in many instances, as we have already seen, that the appointment should be approved and confirmed by the ordinary legislature, As to New York, neither her people nor her government had so far lost their attachment to the mother country as to concur in any measure of opposition until after the battle of Lexington in April, 1775; and the only representatives which New York had in the congress of 1774 were those of a comparatively small portion of her people. It is well known—and, indeed, the author himself so informs us—that the members of the congress of 1775 were elected substantially as were those of the preceding congress; so that there were very few of the colonies, in which the people performed that act in their "primary, sovereign capacity," without the intervention of their constituted authorities. It is of little consequence, however, to the present enquiry, whether the deputies were chosen by the colonial legislatures, as was done in most of the colonies, or by conventions, as was done in Georgia and some others, or by committees appointed for the purpose, as was done in one or two instances, or by the people in primary assemblies, as was done in part of New York. All these modes were resorted to, according as the one or the other appeared most convenient or proper in each particular case. But, whichever mode was adopted, the members were chosen by each colony in and for ​itself, and were the representatives of that colony alone, and not of any other colony, or any nation de facto or de jure. The assertion, therefore, that "the congress thus assembled exercised de facto and de jure a sovereign authority, not as the delegated agents of the government de facto of the colonies, but in virtue of the original powers derived from the people," is, to say the least of it, very bold, in one who had undoubtedly explored all the sources of information upon the subject. Until the adoption of the articles of confederation congress had no "original powers," except only for deliberation and advisement, and claimed no "sovereign authority " whatever. It was an occasional, and not a permanent body, or one renewable from time to time. Although they did, in many instances, "exercise de facto" a [ *30 ]*power of legislation to a certain extent, yet they never held that power "de jure," by any grant from the colonies or the people; and their acts became valid only by subsequent confirmation of them, and not because they had any delegated authority to perform them. The whole history of the period proves this, and not a single instance can be cited to the contrary. The course of the revolutionary government throughout attests the fact, that, however the people may have occasionally acted, in pressing emergencies, without the intervention of the authorities of their respective colonial governments, they never lost sight of the fact that they were citizens of separate colonies, and never, even impliedly, surrendered that character, or acknowledged a different allegiance. In all the acts of congress, reference was had to the colonies, and never to the people. That body had no power to act directly upon the people, and could not execute its own resolves as to most purposes, except by the aid and intervention of the colonial authorities. Its measures were adopted by the votes of the colonies as such, and not by the rule, of mere numerical majority, which prevails in every legislative assembly of an entire nation. This fact alone is decisive to prove, that the members were not the representatives of the people of all the colonies, for the judgment of each colony was pronounced by its own members only, and no others had any right to mingle in their deliberations. What, then, was this "sovereign authority?" What was the nature, what the extent, of its " ​original powers?" From what "people" were these powers derived? I look in vain for answers to these questions to any historical record which has yet met my view, and have only to regret that the author has not directed me to better guides.
* ↑ The historical fact here stated, is perfectly authenticated, and has never been disputed; nevertheless, the following extracts from the Journals of Congress, may not be out of place. "Wednesday, September 14, 1774. Henry Wisner, a delegate from the county of Orange, in the colony of New York, appeared at congress, and produced a certificate of his election by the said county, which being read and approved, he took his seat in congress as a deputy from the colony of New York." "Monday, September 26, 1774. John Hening, Esq., a deputy from Orange county, in the colony of New York, appeared this morning, and took his seat as a deputy from that colony." "Saturday, October 1, 1774. Simon Bocrum, Esq., appeared in congress as a deputy from King's county, in the colony of New York, and produced the credentials of his election, which being read and approved, he took his seat as a delegate from that colony." It is evident, from these extracts, that although the delegates from certain portions of the people of New York were admitted to seats in congress as delegates from the colony, yet, in point of fact, they were not elected as such, neither were they ever recognized as such, by New York herself. The truth is, as will presently appear, the majority of her people were not ripe for the measures pursued by congress, and would not have agreed to appoint delegates for the whole colony.
* ↑ A reference to the credentials of the congress of 1774 will show, beyond all doubt, the true character of that assembly. The following are extracts from them. New Hampshire. "To devise, consult and adopt such measures as may have the most likely tendency to extricate the colonies from their present difficulties; to secure and perpetuate their rights, liberties, and privileges, and to restore that peace, harmony and mutual confidence, which once happily subsisted between the parent country and her colonies." Massachusetts. "To consult on the present state of the colonies, and the miseries to which they are, and must be reduced, by the operation of certain acts of parliament respecting America; and to deliberate and determine upon wise and proper measures to be by them recommended to all the colonies, for the recovery and establishment of their just rights and liberties, civil and religious, and the restoration of union and harmony between Great Britain and the colonies, most ardently desired by all good men." Rhode Island. "To consult on proper measures to obtain a repeal of the several acts of the British parliament for levying tax on his majesty's subjects in America without their consent, and upon proper measures to establish the rights and liberties of the colonies upon a just and solid foundation, agreeably to instructions given by the general assembly." Connecticut. "To consult and advise on proper measures for advancing the best good of the colonies, and such conference to report from time to time to the colonial House of Representatives." New York. Only a few of her counties were represented, some by deputies authorized to "represent," and some by deputies authorized to "attend congress." New Jersey. "To represent the colony in the general congress." Pennsylvania. "To form and adopt a plan for the purposes of obtaining redress of American grievances, ascertaining American rights upon the moat solid and constitutional principles, and for establishing that union and harmony between Great Britain and the colonies which is indispensably necessary to the welfare and happiness of both." Delaware. To consult and advise with the deputies from the other colonies, to determine upon all such prudent and lawful measures as may be judged most expedient for the colonies immediately and unitedly to adopt, in order to obtain relief for an oppressed people, [Massachusetts, the particular wrongs of which are just before recited at large.] and the redress of our general grievances." Maryland. "To attend a general congress, to effect one general plan of conduct operating on the commercial connexion of the colonies with the mother country, for the relief of Boston and the preservation of American liberty." Virginia. "To consider of the most proper and effectual manner of so operating on the commercial connexion of the colonies with the mother country, as to procure redress for the much injured province of Massachusetts Bay, to secure British America from the ravage and ruin of arbitrary taxes, and speedily to procure the return of that harmony and union, so beneficial to the whole empire, and so ardently desired by all British America." North Carolina. "To take such measures as they may deem prudent to effect the purpose of describing with certainty the rights of Americans, repairing the breach made in those rights, and for guarding them for the future against any such violations done under the sanction of public authority." For these purposes the delegates are "invested with such powers as may make any acts done by them obligatory in honor, on every inhabitant hereof, who is not an alien to his country's good, and an apostate to the liberties of America." South Carolina. "To consider the acts lately passed, and bills depending in parliament with regard to the port of Boston, and the Colony of Massachusetts Bay; which acts and bills, in the precedent and consequences, affect the whole continent of America. Also the grievances under which America labours, by reason of the several acts of parliament that impose taxes or duties for raising a revenue, and lay unnecessary restraints and burdens on trade; and of the statutes, parliamentary acts and royal instructions, which make an invidious distinction between his majesty's subjects in Great Britain and America, with full power and authority to concert, agree to and prosecute such legal measures, as in the opinion of the said deputies, so to be assembled, shall be most likely to obtain a repeal of the said acts, and a redress of those grievances. [The above extracts are made from the credentials of the deputies of the several colonies, as spread upon the journal of congress, according to a copy of that journal bound (as appears by a gilt label on the back thereof) for the use of the president of congress—now in possession of B. Tucker, Esq.] It is perfectly clear from these extracts, 1. That the colonies did not consider themselves as "one people," and that they were therefore bound to consider the quarrel of Boston as their own; but that they made common cause with Massachusetts, only because the principles asserted in regard to her, equally affected the other colonies; 2. That each colony appointed its own delegates, giving them precisely such power and authority as suited its own views; 3. That no colony gave any power or authority, except for advisement only. 4. That so far from designing to establish "a general or national government," and to form themselves into "a nation de facto," their great purpose was to bring about a reconciliation and harmony with the mother country. This is still farther apparent from the tone of the public addresses of congress. 5. That this congress was not "organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies," but, on the contrary, that it was organized by the colonies as such, and generally through their ordinary legislatures; and always with careful regard to their separate and independent rights and powers. If the congress of 1774 was "a general or national government," neither New York nor Georgia was party to it; for neither of them was represented in that congress. It is also worthy of remark that the congress of 1774 had no agents of its own in foreign countries, but employed those of the several colonies. See the resolutions for delivering the address to the king, passed October 25, 1774, and the letter to the agents, approved on the following day.
* ↑ The journals of congress afford the most abundant and conclusive proofs of this. In order to show the general character of their proceedings, it is enough for me to refer to the following: On the 11th October, 1774, it was "Resolved unanimously, That a memorial be prepared to the people of British America, stating to them the necessity of a firm, united and invariable observation of the measures recommended by the congress, as they tender the invaluable rights and liberties derived to them from the laws and constitution of their country." The memorial was accordingly prepared, in conformity with the resolution. Congress having previously had under consideration the plan of an association for establishing non-importation, &c., finally adopted it, October 20, 1774. After reciting their grievances, they say, "And, therefore, we do, for ourselves and the inhabitants of the several colonies whom we represent, firmly agree and associate, under the sacred ties of virtue, honor and love of our country, as follows." They then proceed to recommend a certain course of proceeding, such as non-importation and non-consumption of certain British productions, they recommended the appointment of a committee in every county, city and town, to watch their fellow-citizens, in order to ascertain whether or not "any person within the limits of their appointment has violated this association;" and if they should find any such, it is their duty to report them, "to the end, that all such foes to the rights of British America may be publicly known, and universally contemned as the enemies of American liberty; and, thenceforth, we respectively will break off all dealings with him or her." They also resolve, that they will "have no trade, commerce, dealings or intercourse whatsoever, with any colony or province in North America, which shall all not accede to, or which shall hereafter violate, this association, but will hold them as unworthy of the rights of freemen, and as inimical to the liberties of their country." This looks very little like the legislation of the "general or national government" of a "nation de facto." The most important measures of general concern are rested upon no stronger foundation than "the sacred ties of virtue, honor, and the love of our country," and have no higher sanction than public contempt and exclusion from the ordinary intercourse of society!
* ↑ That the powers granted to the delegates to the second congress were substantially the same with those granted to the delegates to the first, will appear from the following extracts from their credentials. New Hampshire. "To consent and agree to all measures, which said congress shall deem necessary to obtain redress of American grievances." Delegates appointed by a convention. Massachusetts. "To concert, agree upon, direct and order" (in concert with the delegates of the other colonies) "such further measures as to them shall appear to be the best calculated for the recovery and establishment of American rights and liberties, and for restoring harmony between Great Britain and the colonies." Delegates appointed by provincial congress. Connecticut. "To join, consult and advise with the other colonies in British America, on proper measures for advancing the best good of the colonies." Delegates appointed by the colonial house of representatives. The colony of New York was not represented in this congress, but delegates were appointed by a convention of deputies from the city and county of New York, the city and county of Albany, and the counties of Dutchess Ulster, Orange, Westchester, King's and Suffolk. They gave their delegates power to "concert and determine upon such measures, as shall be judged most effectual for the preservation and re-establishment of American rights and privileges, and for the restoration of harmony between Great Britain and the colonies." Queen's county approved of the proceeding. Pennsylvania. Simply to "attend the general congress." Delegates appointed by provincial assembly. New Jersey. "To attend the continental congress and to report their proceedings at the next session of general assembly." Delegates appointed by the colonial assembly. Delaware. "To concert and agree upon such farther measures, as shall appear to them best calculated for the accommodation of the unhappy differences between Great Britain and the colonies on a constitutional foundation, which the house most ardently wish for, and that they report their proceedings to the next session of general assembly." Delegates appointed by the assembly. Maryland. "To consent and agree to all measures, which said congress shall deem necessary and effectual to obtain a redress of American grievances; and this province bind themselves to execute, to the utmost of their power, all resolutions which the said congress may adopt." Delegates appointed by convention, and subsequently approved by the general assembly. Virginia. "To represent the colony in general congress, to be held, &c." Delegates appointed by convention. North Carolina. "Such powers as may make any acts done by them, or any of them, or consent given in behalf of this province, obligatory in honor upon every inhabitant thereof." Delegates appointed by convention, and approved in general assembly. South Carolina. "To concert, agree to and effectually prosecute such measures, as in the opinion of the said deputies, and the deputies to be assembled, shall be most likely to obtain a redress of American grievances." Delegates appointed by provincial congress. In the copy of the Journals of Congress now before me, I do not find the credentials of the delegates from Rhode Island. They did not attend at the first meeting of congress, although they did at a subsequent period. Georgia was not represented in this congress until September, 1775. On the 13th May, 1775, Lyman Hall appeared as a delegate from the parish of St. Johns, and he was admitted to his seat, "subject to such regulations as the congress shall determine, relative to his voting." He was never regarded as the representative of Georgia, nor was that colony then considered as a party to the proceedings of congress. This is evident from the fact that, in the address to the inhabitants of Great Britain, they use the style, "The twelve United Colonies, by their delegates in congress, to the inhabitants of Great Britain," adopted on the 8th July, 1775. On the 20th of that month congress were notified that a convention of Georgia had appointed delegates to attend them, but none of them took their seats till the 13th September following. They were authorized "to do, transact, join and concur with the several delegates from the other colonies and provinces upon the continent, on all such matters and things as shall appear eligible and fit, at this alarming time, for the preservation and defence of our rights and liberties, and for the restoration of harmony, upon constitutional principles, between Great Britain and America." Some of the colonies appointed their delegates only for limited times, at the expiration of which they were replaced by others, but without any material change in their powers. The delegates were, in all things, subject to the orders of their respective colonies.