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tion 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.”
* 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 wniversally 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 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
On the 22d October, 1774, this congress dissolved “it- [*24] self, 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 *most important acts, and among [*25] the rest the appointment of a commander-in-chief of their armies, were performed while those 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 bat
tle of Lexington,) were, and of right ought to be, free and independent States.*
* 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 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, West Chester, 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 to 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 this 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,
It is to be remarked, that no new powers were *con- [*26] ferred 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. Rutledge, 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 “soon unite with the rest, if not indiscreetly [*27 | 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 those 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 and valid relations between the colonies, so long as they acknowleged 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
shall be most likely to obtain a redress of American greivances.” 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 this 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.