people. Indeed, as they *were called into existence by [*28]

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 instan

ces 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 *assembled in those places, where [*29] 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 governments de facto of the colonies, but in virtue of 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 *power of legislation to a certain extent, yet they never held that power "de jure," by any grant [*30] 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 i 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 "origi

nal powers?" From what "people" were those 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 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 *under circumstances of this sort. [*31] 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 it 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 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 *subject of war was "exclusive" only as to such military and naval opera[*32] tions 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