§ 145. The Continental Congress a revolutionary government. These general statements in regard to the high acts of sovereignty exercised by the earlier Congresses are strengthened by an examination of the history of those organizations. The first Continental Congress assembled at Philadelphia on September 5, 1774, and organized itself as a deliberative body representing the various colonies of North America. It was essentially a revolutionary government, the outgrowth of necessity for immediate and united action of the colonies; it consisted of delegates, or, as they were called in many proceedings, committees of the colonies. Eleven colonies only were represented on the first day. At that time no Articles of Confederation existed, nor in fact were there any written articles which either held the colonies together, or clothed the delegates with any general powers; nor were there any established principles at the outset by which the nature of the Union could be determined; it, therefore, became necessary at once to formulate some system of government which should be binding upon all the different colonies or states, as from that time thereafter they have ever since been called.1

§ 146. Nature of Congress prior to Constitution. The Continental Congress acted somewhat in the nature of a general committee, or commission, for the thirteen colonies. without any constitutional foundation or written agreement whatever, from 1774 until 1777; the Articles of Confederation were completed and offered to the States for their ratification in November, 1777, but the assent of all of the States was not obtained until March, 1781. During this period of

$ 145.

establish. To cover this whole ground would be to write the legis- 1 For an extended history of the lative history of those eventful four-earlier Congresses of the United teen years. I select from all its States, see Curtis' Constitutional History of the United States, edition of 1889, New York, vol. I, chapters I-IV, and Story's Commentaries,, vol. I, § 198. § 146.

legislation three subjects: 1. The Appellate Prize Courts; 2. The Treaties negotiated with Foreign Powers; 3. The acquisition of the Territory to the northwest of the Ohio, and the exclusion of slavery from it."

1 For dates of adoption of Articles of Confederation, see note 1 to § 148, p. 257, post.

nearly seven years the basis for the existence of the Continental Congress was simply the recognized unity of the States as a matter of necessity and policy; all of the States from time to time sent delegates, the number varying according to the whim or fancy of each State, for as each was allowed to determine the number of its delegates within certain bounds, no undue advantage was obtained by increasing the number of delegates as a single vote was allowed to each State, regardless of the number of delegates representing it.

§ 147. Independence, preservation of States' rights, National unity-all united in original and subsequent governments of United States.-At the first meeting of these delegates questions naturally arose in regard to the extent of the national, or federal rights, which were exercisable by the Congress, as distinguished from the rights of the States, whose powers as to local affairs were not to be encroached upon any more than was absolutely necessary; great difficulty was encountered in framing a system of government and vesting the Continental Congress with governmental powers owing to the great jealousy with which the rights of the States were closely guarded; thus at the very outset of our recorded political history we find that the three great ideas, or principles, which have ever since dominated the government of the American people had already sprung into existence, and entered into the formation of the government, to wit: Independence, Preservation of States' rights, and National Unity.1

$147.

1NATIONAL UNITY PRIOR TO DECLARATION OF INDEpendence.

The first page of Bancroft's History of the Constitution of the United States is entitled "A retrospect-Movements towards Union, 1641-1781," see also Elliott's Debates, vol. I, pp. 42-60, "Gradual Approaches towards Independence."

There is an exposition of this national unity, as it existed between the colonies, in the compilation of Select Charters and Other Documents illustrative of American history from 1606 to 1775, edited with notes by William Macdonald, published by the Macmillan Company, New York and London, 1899; this volume contains eighty documents affecting the relations of the American colonies with European countries, especially Great Britain, and with each other. As stated by Mr. Macdonald in his preface, it is a companion volume to his Select Documents Illustrative of the History of the United States, 1776-1861, also published

These principles have consistently and concurrently existed since that first meeting of the Continental Congress in Phila

by the Macmillan Company, New York and London. Some of these documents are referred to in the following note:

was

On Thursday, October 20, 1774, the following "Association read in the Continental Congress and signed; it begins with the usual preamble:

"We, his Majesty's most loyal subjects, the delegates of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, the three lower counties of New Castle, Kent, and Sussex, on Delaware, Maryland, Virginia, North Carolina, and South Carolina, deputed to represent them in a Continental Congress, held in the city of Philadelphia, on the fifth day of September, 1774, avowing our allegiance to his Majesty; our affection and regard for our fellow-subjects in Great Britain and elsewhere; affected with the deepest anxiety and most alarming apprehensions at those grievances and distresses with which his Majesty's American subjects are oppressed; and having taken under our most serious deliberation the state of the whole Continent, find that the present unhappy situation of our affairs is occasioned by a ruinous system of Colonial Administration, adopted by the British Ministry about the year 1763, evidently calculated for enslaving these Colonies, and, with them, the British Empire."

After recitals of their grievances the non importation agreement of 1774 was made; the association is referred to here because throughout the entire document, which appears at length on pp. 443-447, second volume of Curtis' Constitutional History of the United States, the colonies are referred to as a single territory, America, and, except in the recital, there is no reference to the separate colonies; the tenor of the instrument shows clearly that in this matter they considered themselves a unit.

On Thursday, July 6, 1775, in the Continental Congress a declaration was prepared by the representatives of the United Colonies of North America setting forth the causes for the necessity of taking up arms, in the course of which the following occurs:

"Our cause is just. Our union is perfect. Our internal resources are great, and, if necessary, foreign assistance is undoubtedly attainable. We gratefully acknowledge, as single instances of the Divine favour towards us, that His providence would not permit us to be called into this severe controversy until we were grown up to our present strength, had been previously exercised in warlike operations, and possessed of the means of defending ourselves. With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of our liberties; being, with one mind, resolved to die freemen rather than live slaves.

delphia in 1774; they have never conflicted with each other except when the advocates of one principle have endeavored to give it undue prominence over the others; when, however, each is given its due and proper sphere, they co-operate like

"Lest this Declaration should disquiet the minds of our friends and fellow-subjects in any part of the Empire, we assure them that we mean not to dissolve that union which has so long and so happily subsisted between us, and which we sincerely wish to see restored. Necessity has not yet driven us into that desperate measure, or induced us to excite any other nation to war against them. We have not raised armies with ambitious designs of separating from Great Britain, and establishing independent states. We fight not for glory or for conquest. We exhibit to mankind the remarkable spectacle of a people attacked by unprovoked enemies, without any imputation or even suspicion of offense. They boast of their privileges and civilization, and yet proffer no milder conditions than servitude or death.

"In our own native land, in defence of the freedom that is our birthright, and which we ever enjoyed till the late violation of it; for the protection of our property, acquired solely by the honest industry of our forefathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before." 1 Journal of Congress, p. 134, et seq., Macdonald's Select Charters, p. 374, Curtis' Constitutional History of the United States, vol. II, p. 453, see p. 457.

"We thus see that from the first dawn of our national existence, through every form which it has yet assumed, a dual character has constantly attended our political condition. A nation has existed because there has all along existed a central authority having the right to prescribe the rule of action for the whole people on certain subjects, occasions and relations. In this sense and in no other, to this extent but no further, we have been since 1776, and are now a nation. At the beginning the limits of this central authority, in respect to which we are a nation, were defined by general popular understanding; but more recently they were fixed in written terms and public charters, first by the Articles of Confederation, and ultimately, with a more enlarged scope and a more efficient machinery, by the Constitution. The latter instrument made this central authority a government proper, but with limited and defined powers, which are supreme within their own appropriate sphere. In like manner, from the beginning, there has existed another political body-distinct, sovereign within its own sphere, and independent as to all the powers and objects of government not ceded or restrained under the Federal Constitution. This body is the statea political corporation of which each inhabitant is a subject, as he is at the same time a subject of that other political corporation known as the United States." Curtis' Constitutional History of the United States, vol. II, p. 551.

the parts of a perfect machine, each one performing its own duties without interfering with the others, but all so necessary for the perfect working of the whole machine that if any one of them should drop out or be impaired, the entire structure would fall to pieces and its operations cease at

once.

§ 148. Adoption of Articles of Confederation.-Prior to. the adoption of the Articles of Confederation by any of the States which did so, the delegates met in a somewhat spontaneous, or voluntary, manner for the purpose of protecting the common interests of all the States during the progress of the Revolution by a central government. After the adoption by eight of the States of the Articles of Confederation in July, 1778, and until they were adopted by the State of Maryland in March, 1781, some of the States were represented under the original voluntary system and others under the Articles of Confederation. During the whole period every State was exercising certain powers, which might be called sovereign, in regard to matters within its own jurisdiction, and the Continental Congress was exercising sovereign powers of the highest order for the joint benefit of all the States as a nation.

§ 149. National unity and State independence. -Those who believe in the nationality of the United States have § 148.

1 See Curtis' Constitutional History of the United States, vol. I, chap. V, for history of Adoption of Articles of Confederation. On p. 86 the following occurs.

eral states, and on the 26th of the same month a form of ratification was adopted for signature. On the 9th of July the ratification was signed by the delegates of eight states: New Hampshire, Massa"The last clause of the Articles chusetts, Rhode Island, Connectiof Confederation directed that they cut, New York, Pennsylvania, Virshould be submitted to the legis-ginia, and South Carolina. North latures of all the states to be considered; and if approved of by them, they were advised to authorize their delegates to ratify the instrument in Congress; upon which ratification it was to become binding and conclusive. On the 20th of June, 1778, a call was made in Congress for the report of the delegations on the action of their sev-Debates, vol. I, p. 84.

Carolina ratified the Articles on the 21st of July; Georgia on the 24th; New Jersey on the 26th of November; Delaware on the 5th of May, 1779; Maryland on the 1st of March, 1781.

On the 2d of March, 1781, Congress met under the Confederation." Curtis' Constitutional History, vol. I, p. 86. See also Elliot's