and on behalf of all the colonies, for many months prior to the promulgation of the Declaration of Independence.1

§ 137. Birth of United States; Declaration of Independence. It is generally considered that the birth of the United States was on the 4th day of July, 1776, and that it was evidenced by the promulgation of the Declaration of Independence. If, however, as the Supreme Court has declared, the United States was born as a nation with the Declaration,1 it was certainly conceived, as such, not later than the assembling of the first Congress, or, at the very latest, at the battle of Lexington. The colonies had, prior thereto, practically acted as independent States. They had always done so, however, as an entity and not in their separate capacities. When they issued that memorable document, they did so as a whole and not separately. They did, indeed, declare that they already existed as free and independent States, and not that they intended to become so at a future time; but they did this as the United States through the medium of delegates to a Congress which exercised functions of national sovereignty

"A

1 Harcourt vs. Gaillard, U. S. Sup. Ct. 1827, 12 Wheaton, 523, JOHNsoN, J., in which it was held, as stated in the syllabus, that grant made by the British gov ernor of Florida, after the declaration of independence within the territory lying between the Mississippi and the Chatahouchee riv

"The continental government, which commissioned and sent Washington to take the command of the army which it had adopted, consisted solely of a body of delegates, chosen to represent the people of the several colonies or states, for certain purposes of national defence, safety, redress, and finally, revolution." Constitutional His-ers, and between the 31st degree of tory of the United States by George Ticknor Curtis, vol. I, chapter 3, entitled, "The Revolutionary Government." p. 38; and see also Penhallow vs. Doane, U. S. Sup. Ct. 1795, 3 Dallas 54, PATERSON, J.; Ware vs. Hylton, U. S. Sup. Ct. 1796,3 Dallas 199, CHASE, J.; extracts from these opinions as quoted in Story's Commentaries will be found in note 1, under § 143, p. 246, post of this volume; also Chisholm 2 The Battle of Lexington was vs. Georgia, U. S. Sup. Ct. 1793, 2 fought April 19, 1775. See note on Dallas 419, and see § 138, p. 242, post. | national unity prior to Declaration

north latitude, and a line drawn from the mouth of the Yazoo river due east to the Chatahouchee, is invalid as the foundation of title in the Courts of the United States." Chisholm vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas 419, and see further reference to this case in § 138, p. 242, post, and extract from opinion of JAY, Ch. J., in note under § 143, p. 246, post.

for the joint benefit of all the people of the good colonies of North America.3 This demonstrated the co-ordinate births of the principles of unity and independence in our national

of Independence under § 147, p. 254,| post.

3 The Declaration of Independence did not have the usual preamble and recital as to the names of the States or colonies; in fact the names of the colonies do not appear in the document; throughout the document the word "we" is used without any declarative words whatsoever, leaving it simply to the persons signing it to specify in what capacity it was executed. The concluding sentence is as follows:

BURGESS.

"Complete geographical separation and a partial ethnical separation from the motherland, together with complete geographical unity, substantial ethnical unity, and almost complete identity of interests among themselves were the forces which conspired, at last, to awaken the consciousness of the people of these thirteen colonies to the fact that they had attained the natural conditions of a sovereignty,-a State. The impulse to objectify this consciousness in institutions "We, therefore, the Representa- became irresistible. Its first entives of the United States of Amer- during form was the Continental ica In General Congress, assem- Congress. This was the first orbled, appealing to the Supreme ganization of the American state. Judge of the World for the recti- From the first moment of its existtude of our intentions, do, in the ence there was something more Name, and by Authority of the upon this side of the Atlantic than good People of these Colonics sol- thirteen local governments. There emnly Publish and Declare, That was a sovereignty, a state; not in these United Colonies are, and of idea simply or upon paper, but in Right ought to be Free and Inde- fact and in organization. The revpendent States; that they are Ab-olution was an accomplished fact solved from all Allegiance to the before the declaration of 1776, and British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, We mutually pledge to each other our Lives, our Fortunes and our sacred they were determined to defend Honor." this natural status against the now

so was independence. The act of the 4th of July was a notification to the world of faits accomplis. A nation and a state did not spring into existence through that declaration, as dramatic publicists are wont to express it. Nations and states do not spring into existence. The significance of the proclamation was this: a people testified thereby the consciousness of the fact that they had become, in the progressive development of history, one whole, separate, and adult nation, and a national state, and that

political history. It has been so decided by the Supreme Court. Story, in his Commentaries, says "that the colonies

no longer natural supremacy of a people of the country became foreign state. French statesmen thenceforth the rightful sovereign had foreseen and predicted this de- of the country; that they became velopment and result a decade be- united in a national capacity, as fore the stamp act. The American one people; that they could therestate, organized in the Continental after enter into treaties and conCongress, proclaimed to the world tract alliances with foreign nations, its sovereign existence, and pro- could levy war and conclude peace, ceeded, through this same organi- and do all other acts pertaining to zation, to govern itself generally, the exercise of a national sovfor the time being and to authorize ereignty; and finally, that, in their the people resident within the sep-national capacity, they became arate colonies to make temporary known and designated as the Uniarrangement for their local govern- ted States of America. This Decment, upon the basis of the widest laration was the first national possible suffrage." Burgess' Po- state paper in which these words litical Science and Constitutional were used as the style and title of Law, vol. I, p. 100. the nation. In the enacting part of the instrument, the Congress styled themselves 'the representatives of the United States of America in general Congress assembled;' and from that period the previously United Colonies' have been known as a political community, both within their own borders and by the other nations of the world, by the title which they then assumed.

CURTIS.

"This celebrated instrument, regarded as a legislative proceeding, was the solemn enactment, by the representatives of all the colonies, of a complete dissolution of their allegiance to the British crown. It severed the political connection between the people of this country and the people of England, and at once erected the different colonies into free and independent states. The body by which this step was taken constituted the actual government of the nation, at the time, and its members had been directly invested with competent legislative power to take it, and had also been specially instructed to do so. The consequences flowing from its adoption were, that the local allegiance of the inhabitants of each colony became transferred and due to the colony itself, or as it was expressed by the Congress, became due to the laws of the colony, from which they derived protection; that the

"The title of 'The United States of America' was formally assumed in the Articles of Confederation, when they came to be adopted. But it was in use, without formal enactment, from the date of the adoption of the Declaration of Independence. On the 9th of September, 1776, it was ordered that in all continental commissions and other instruments, where the words

United Colonies' had been used, the style should be altered to the

United States.' Journals of Congress, vol II, p. 349." Curtis's Constitutional History of the United States, pp. 35-36, vol. 1.

4 For note 4, see p. 241.

did not severally act for themselves, and proclaim their own independence." Continuing, he says: "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. But the declaration of 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 not an act 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 one, 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 to provide for the exigencies of the times, without consulting Congress on the subject; and when any 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 all allegiance to the British Crown. The Declaration of Independence has accordingly always 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 connection 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."5

4 See § 143, pp. 246, et seq. post, and extracts from Story, Curtis, Miller, Davis and Cooley, and cases cited on this point.

5 Commentaries on the Constitution of the United States by Joseph Story, LL. D., 5th ed., Boston, 1891, vol. I, sec. 211, pp. 153–155.

§ 138. Chisholm vs. Georgia; views of Chief Justice Jay. -This was also the decision in the case of Chisholm vs. Georgia, in which it was held that the "Revolution, or rather, the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions, and other temporary arrangements. From the Crown of Great Bri tain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or State within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a general government."

§ 139. Extent of Sovereignty in the Continental Congress. From the time the first Continental Congress assembled at Philadelphia, September 5, 1774, until the present time there has been an active and unending discussion as to the extent of sovereignty which was vested in that Congress, either in its capacity as a revolutionary government prior to, or in its capacity as a Congress of delegates from various States subsequent to, the adoption of the Articles of Confederation. In many respects this has become a purely academic question; it is, however, of vital importance, as a demonstration of the truth of the statement already made, that at the very moment the colonies decided to throw off their allegiance to Great Britain, if not prior thereto, it was a recognized fact, and one which was acted upon from the moment that resolu

§ 138.

1 Chisholm vs. Georgia, U. S. Sup. Ct. 1793, 2 Dallas, 419, p. 462, JAY, Ch. J., IREDELL, BLAIR, WILSON

and CUSHING, JJ., and see extract from opinion of JAY, Ch. J., in note to § 143, p. 246, post.