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State sovereignty-forgotten testimony.

by Chas. Harris.

Philadelphia, Nov. 30th, 1881.
Rev'd J. Wm. Jones, Secretary of the Southern Historical Society, Richmond, Va.:
Dear Sir--The Hon. Jefferson Davis in his admirable argument exposing the absurdity of Judge Story's theory, that the Declaration of Independence implied or declared that the people of the several revolted colonies were “one whole people,” (i. e. one sovereign political community,) forcibly says, at page 126, of Vol. I of The rise and fall of the Confederate Government, that if so, then the colony of Maryland must have been in a state of “rebellion” against the other colonies, as well as against Great Britain, from 1778 to 1781, “during which period Maryland refused to ratify or be bound by the Articles of Confederation,” which instrument, if Judge Story's theory be correct, was, as Mr. Davis pertinently remarks, “binding upon her, as a majority of the ‘whole people’ had adopted it.” Mr. Davis then continues as follows: “A fortiori, North Carolina and Rhode Island were in a state of rebellion while they declined to ratify and recognize the Constitution adopted by the other eleven fractions of this united people. [434] Yet no hint of such pretension — of any claim over them by the majority — of any assertion of ‘the supremacy of the Union’ --is to be found in any of the records of the period.”

The production of Mr. Davis, in the last of the above quoted sentences, of negative evidence only in support of his position as to the attitude of the eleven United States towards North Carolina and Rhode Island, shows, I think, that when he wrote his argument on this subject he could not have been aware of the existence of Government records, proving by the most direct, positive and clear testimony that the United States Government, among the very earliest of its official transactions,(i. e. at the first and second sessions of the first Congress in 1789-90,) formally and by legislative acts, acknowledged North Carolina and Rhode Island to be outside of the jurisdiction of the United States, and no more subject to “the supremacy of the Union” than France or China was, and thereby acknowledged their independence.

That Mr. Davis should not have been aware of the existence of this most important testimony is not at all to be wondered at, when we reflect that writers on constitutional questions, or questions of civil law, when searching among ancient and obsolete statutes in the hope of finding matter pertinent to the objects they have in view, do, as a rule, examine first the title or caption of a law under the impression that it is always a reliable indicator of the contents of the law, and if they see no allusion in the title to the object of their search, they are very apt to conclude that there is nothing in the law relating to it, and to proceed no farther in their examination of the law.

Several years ago, while rummaging among the early statutes of the Federal Government, I discovered1 the important testimony which is the principal subject of this paper, and on asking many able and experienced lawyers and jurists, among whom was an eminent ex-judge of a United States District Court, if they knew, or had ever heard of this testimony, I was answered in the negative by each of them.

Appended to this paper will be found the full titles with extracts from and condensed statements of the substance of pertinent parts of certain five statutes or acts passed by the first Congress that ever assembled under the present Constitution.

The dates of those five acts are respectfully: July the 4th, July the 20th, July the 31st, September the 16th, 1789, and February 8th, 1790. [435] In the course of this paper, I shall cite other acts, which are not appended hereto. The title of neither of the first four of these acts makes any mention of North Carolina or Rhode Island, nor do the two first acts mention either of those States even in their text; but before the reader shall have finished reading in this paper the study of those five acts as taken together, and as bearing on each other, he will see clearly how the text of the two first came to operate on the commerce and ships of North Carolina and Rhode Island, and were intended to be made so to operate. The text, however, of the last three of the acts will destroy forever any doubt that may have heretofore lingered in the reader's mind, even if he were Judge Story redivivus; who, it is clear to my mind, (if he was sincere in his theory) could never have read and made a study of these five acts grouped together in one body, as it were, and separated from the many other acts that lie between them, but have no bearing on them. Had he done so, he, even if he had been only a second-rate lawyer, would have seen that they constituted a fatal obstacle to the validity of his theory.

The mention of North Carolina by name in the title of the fifth of these acts, (viz.: that of Febuary 8th, 1790,) while Rhode Island is not mentioned in that title, would naturally not be suggestive of anything of the slightest importance to any one searching for information on this subject, inasmuch as he would infer from the date of the act (over two months after North Carolina had ratified the Constitution), and from the mention of that State only in the title, that the act had reference only to the entrance of that State into the Union. While the act does provide for extending the laws of the Union over North Carolina, it, at the same time, makes in its text most unqualified admissions of the independent nationality of Rhode Island, (reciting her name,) and of her entire independence of and political alienation from the United States.

From the beginning of the government, in April, 1789, down to the 31st of July, of that year, there was no revenue law whatever of the United State in force. The first act laying “duties on goods, wares and merchandizes,” (being the second act of any kind ever passed by Congress) although enacted on the 4th of July, yet, by its own terms, was not nor could it become an operative law until the 1st of August next following. The next revenue act, being the third act ever passed by Congress, was enacted on the 20th of July, 1789, and it imposed duties not on the cargoes, but on the tonnage only of ships or vessels coming into the ports of the eleven United States; but this act, by its own terms, could not become operative law until the 15th of August next [436] following. The above mentioned two acts were the only revenue acts that were passed during the year 1789.

And now the time has arrived, I conceive, for us to enquire why did Congress postpone the operation of the act of July 4th to the 1st of August, and the act of July 20th to the 15th of August. No reason for this postponement is apparent on the face of either of the acts, and, so far as I know, history assigns no cause for it. Readers of American history well know that there was very strong reason for those two laws to have been passed early in May, and to have gone into operation immediately on their passage. The eleven United States of that day were as a Confederacy, utterly impecunious and in very urgent need of immediate revenues, and yet we have before us the strange spectacle of Congress idly waiting, without any visible cause, from April to August before putting into effect any measures for raising much needed revenues.

I have a theory, Mr. Secretary, which explains, I think, this otherwise unaccountable delay of Congress, and furnishes, doubtless, the true reason for it. It is well known that the Congress of the summer of 1789 and all their constituents were exceedingly desirous that North Carolina and Rhode Island should enter the Union. Notwithstanding that each of these two States had already held its own separate convention and had therein refused to ratify the Constitution, yet Congress knew that numerous and able friends of the Union were then, and had been during the prior winter and spring, diligently at work within each of the two States, urging the early assembling of a second convention; and it was known that there was a very fair prospect of such convention being called soon.

[North Carolina did, indeed, call her second convention in November of that year, and ratified the Constitution on the 29th of that month.]

Now if the two States could be induced to ratify the Constitution before any legislation of Congress should be effected of a character bearing on them as countriesforeign to the United States, the friends of the United States could say in Europe as well as in America that there had been no disruption of the Union when Congress assembled in April 1789, and no secession of eleven States from the first union; and that the delay of North Carolina and Rhode Island in ratifying the new Constitution would be spoken of merely as the exceeding caution of those two States, as manifested by their taking ample time to deliberate and decide on a matter of so great importance.

But time wore on, and when the 31st day of July arrived, (one day only, mind you, before the act of 4th July would begin to operate,) and [437] neither of the two States had yet called their second convention, Congress saw that they were then compelled to take action, and the law of the 31st July was the result of that action.

And now, mark you, how tenderly and in what a conciliatory spirit Congress treated the two recusant sisters in that act while being under the necessity of legislating towards each of them as towards any other foreign country.

Congress well knew, in fact they virtually say so in the act, that unless something were done at once, the General Revenue Act of July 4th, would begin at once, i. e. on 1st August, to take effect on the products and manufactures of the two States when imported into the United States, for that act excepted no country that was outside of the American Union of that date. The second paragraph of the 38th section of the act of 31st July declares that North Carolina and Rhode Island were then outside of the Union, when it says, “this act doth not extend to the collecting of duties within either of the said two States,” and it gives the reason why, viz: because they “have not as yet ratified the present Constitution.” Being unwilling, as yet,2 to permit the act of July 4th to operate on the products and home manufactures of North Carolina and Rhode Island when imported into the United States, but at the same time knowing that if all goods imported into the United States from those two States were to be exempted from duties, the certain result would be that no revenue could be collected in any of the ports of the United States, for all goods from Europe or Asia designed ultimately for the United States would be sure, for obvious reasons, to be sent first to North Carolina and Rhode Island. Congress in order to exhibit at one and the same time its conciliatory spirit towards the two States, and to gather also the entire duties from imported European and Asiatic goods, whether coming or not into the United States, through North Carolina and Rhode Island, very neatly effected both objects by the 39th section of the act of July 31st, in the words following:

section 39.--Be it therefore further enacted; That all goods, wares and merchandize, not of their own growth or manufacture, which shall be imported from either of the said two States of Rhode Island and [438] Providence Plantations, or North Carolina, into any other port or place within the limits of the United States as settled by the late treaty of peace,3 shall be subject to the like duties, seizures and forfeitures as goods, wares or merchandize imported from any State or country without the said limits.

Some reader of that act who may not be overmuch skilled in the interpretation of legal phraseology, might possibly here say to me in perfect sincerity and honesty, “But, Mr. H., the phrase * * * ‘imported from either of the said two States of North Carolina and Rhode Island, into any other port or place within the limits of the United State,’ &c., plainly indicates, from its grammatical construction, that Congress meant to assert and did assert by their use of that phraseology that North Carolina and Rhode Island were, on the 31st July, 1789, “within the limits of the United States.””

In reply to such reader, who would most probably be a Storyite, with his mind so befogged by the sophistries of his Magnus Apollo as to be unable to perceive the force of any point or argument that might militate against the judge's theory, I should say, “if the phraseology you quote from the act of July 31st had not been followed by the next eight words. that are in that act, viz.: ‘as settled by the late Treaty of Peace,’ there would, at first blush, appear to be some force in your remark, if we should regard only the words you quote isolated from what precedes and follows them.” But when we take the words you quote in connection with their whole context, the meaning is very clear, although not what you suppose it to be; but if we suppress the above-mentioned eight important words, we then convert sections 38 and 39 into a jumble of ridiculous contradictions and arrant nonsense. If Congress meant to assert what you say it does assert in section 39, then the collection of duties by United States Custom-House officers in the ports of North. Carolina and Rhode Island from foreign goods imported from across the ocean into those two States in August would have been perfectly legal and proper, but Congress, in section 38, denies this legality and divests. itself of all authority in the premises when it declares in that section that United States' duties cannot be collected “ within either of the, two States,” and in section 39 declares North Carolina and Rhode Island not to be within the limits of the then United States when it directs that goods not of their own growth or manufacture, which “shall be imported from either the said two States” shall pay duties on arrival in United States ports. This provision of the act in question shows, by [439] the way, how the revenue act of the 4th of July was brought into operation on North Carolina and Rhode Island, although neither of those two States is mentioned either in the title or in the text of that act. If the two States were at that time integral portions of the United States, then it would have been utterly impossible, even if both parties were were willing, for goods to be imported from them into the United States, because the goods would be already in the United States before leaving either of the two States, and the Constitution would prohibit Congress from levying duties on them. When we come, however, to analyze the whole phrase, including the eight words before referred to, and taken in connection with the entire section, we see at once what Congress meant. The entire phrase, including the eight words referred to, does not describe, nor was it meant to describe the United States of July, 1789, but that geographical area on the Continent of America which Great Britain had acknowledged, in the Treaty of Peace, to be free from her jurisdiction in 1782.

Why Congress employed this peculiar and cumbersome phraseology in section 39 is, I think, very apparent Out of a kind regard for the feelings of their late two political associates they desired, even when framing revenue laws designed to tax goods coming into the United States from those former associates, to employ, and they deemed it politic to employ, language that would, as much as possible, disguise and soften the situation, which it was hoped would be of but short duration. In accordance with this view we find Congress using, in section 38, such mollifying phrases as “for the present” and “as yet.” But as time rolled on and the two States still kept out of the Union we find Congress, in the act of September 16th, throwing aside this sentimentality, and speaking right out in church, when they commenced in that act to call things by their plain every-day names without employing any roundabout, namby-pamby phraseology. Let any one read sections 2 and 3 of that act and he will see that if France and Spain had been the only and special subjects of those sections they could not have been mentioned and referred to therein in language more strongly recognizing their unqualified independence of and complete political alienation from the United States of that day than North Carolina and Rhode Island are mentioned and referred to in the act.

In like manner does the 7th section of the act of February 7th and 8th, 1790, enacted after North Carolina entered the Union, and reviving the 2d section of the act of September 16th towards the citizens of Rhode Island, go direct to the point in the fewest possible [440] words, without beating about the bush, and thereby admits Rhode Island to have then been a country foreign to the United States.

Having, I think, Mr. Secretary, effectually disposed of our imaginary disciple of Judge Story I will now go back to the subject that was before us before he came on the tapis. That subject was my theory attempting to account for the very strange delay of Congress in providing for the collection of revenues for the Treasury of the United States. As additional and corroborative proof of the probable correctness of that theory I now call your attention to the fact that Congress did not, until the 31st of July, divide the seaboard territory of the United States and a part of the Ohio river into revenue districts and establish ports of entry therein. They could very easily have done this in the first week of May, but they refrained from doing so, and why? Plainly because, as I think, they saw that when they should come to do so they could not divide up into revenue districts the territory of foreign countries (i. e. North Carolina and Rhode Island), nor establish United States ports of entry in those countries.

They wished, as before said, to avoid as long as possible any legislation that would bear on North Carolina and Rhode Island as foreign countries, and that would acknowledge them to be such. But the 1st of August was only one day off, and action must be taken, and that action resulted in the first thirty-seven sections of the act of July 31st.

In those sections Congress among other things divided up the territory of eleven only of the States, and certain territory on the Ohio river, from its rapids to its mouth, (being the district of Louisville,) into revenue districts, and established ports of entry therein; but it carefully refrained in that act from dividing the territory of North Carolina and Rhode Island into such districts, and from establishing ports of entry in either of those two States This, of course, was an open, unqualified admission by Congress that those two States were countries foreign to the United States.

But Mr. Secretary, even if my theory accounting for the delay referred to be without foundation, it cannot have any bearing on nor affect in the slightest degree the impregnability of the facts which I have brought forward, and will yet produce in this paper to prove conclusively that the Congress of 1789 did not deem the people of the United States to be “one whole people,” one political community possessed of its own original inherent sovereignty, supreme in all respects over every other power in the land.

In addition to the evidences already adduced herein proving the Confederate status of the separate people of the several States, and [441] disproving the alleged consolidated character of the people of the United States, and showing that the people of any one State was, when ratifying the Constitution, a distinct sovereignty itself, and not a mere fraction of one sovereign people, I now cite a portion of the 2d section of the act of September 16th, 1789, underscoring the words to which I wish the reader's attention to be particularly directed. That section enacts, “That all the privileges and advantages to which ships and vessels, owned by citizens of the United States, are by law entitled, shall be, until the 15th day of January next, extended to ships and vessels wholly owned by citizens of the States of North Carolina and Rhode Island and Providence Plantations.”

The citizens of the United States on the one hand, and the citizens of Spain on the other, could not in a legislative act of Congress be placed in stronger antithesis (and here it is political antithesis) than the citizens of the United States as one party, and the citizens of North Carolina and Rhode Island as another party, are placed in this act. This section shows also that if it had not been enacted, the provisions of the Tonnage Act of July 20th, which had commenced to take effect on the ships of North Carolina and Rhode Island on the 15th of August, would have continued operating on them after the 16th September, thus showing that although the ships of North Carolina and Rhode Island are not mentioned as such in the act of 20th July, (neither are the ships of other foreign countries mentioned by the names of their countries,) yet they were intended to be embraced by the general expressions in the act, to which the reader is referred.

Pray observe that the concluding clause of the 40th section of the .act of 31st July, although not mentioning either North Carolina or Rhode Island by name, (nor does it mention the then Spanish Colonies, Florida and Louisiana, adjoining the United States,) totally prohibits commerce by land between those two States and the United States, as well as the Colonies mentioned, in goods not the growth or manufacture ,of the two States, and it confiscates the goods and “the carriages, horses and oxen that shall be employed in conveying the same.”

What stronger evidence than this would you desire to show that North Carolina and Rhode Island were at that time regarded by Congress, and acknowledged as countries wholly foreign to the United States? I omitted mentioning, in its more appropriate place above, the additional strong evidence that the 40th section of the act of July 31st, exhibits when it prohibits vessels of North Carolina or Rhode Island, of a capacity less than thirty tons, from bringing into the United States goods not of their own growth or manufacture. [442]

By the act of the 24th of September, 1789, (not appended hereto, but to be found in any edition of the United States statutes at large ) Congress created the Supreme Court of the United States and divided up into thirteen judicial districts the eleven States then composing the United States, mentioning each of them by name, and calling them in the aggregate “The United States” ; but it took care not to mention North Carolina or Rhode Island in the act, nor to make either of them part or parcel of those judicial districts. Here was another recognition by the United States of the independence of those two States as foreign countries.

By the act of March 1st, 1790, (not appended hereto) after North Carolina had entered the Union, Congress provided for taking a census of “the inhabitants of the United States.” In that act it directs the appointment of marshals and their assistants to execute the objects of the act, and it specifies by name each of the twelve States that, in March of that year, composed the United States, but among the twelve names that of Rhode Island does not appear, and the act appoints no marshals for the enumeration of her inhabitants.

What does this mean but an acknowledgement by Congress of the independence and foreign character of Rhode Island?

After that State entered the Union in May, 1790, Congress by a special act, viz: the act of July 5th, 1790, (not appended hereto) provided for the separate enumeration of her inhabitants.

What I have herein adduced proves, I think, beyond all question that the Government of the United States did in 1789 formally and officially acknowledge the absolute independence and sovereignty in that year of North Carolina and Rhode Island, and of the latter State in 1790 also; that those two States were then not subject to the “supremacy of the Union,” and that they were countries as much foreign to the United States as France or Spain was; and it of course utterly demolishes Judge Story's theory (attempted to be based on an expression in the Declaration of Independence) that the people of the United States were, in a political sense, one sovereign consolidated people.

By-the-way, Mr. Secretary, with regard to that expression, viz: “When in the course of human events it becomes necessary for one people to dissolve the political bonds,” &c., there is a view of it which I have never seen taken, but which, I think, shows that the expression was not intended to mean or to assert that the people of the several colonies then in rebellion were the people of only one sovereign political community, divided up into territorial factions called States. Who [443] was the author of the Declaration? Thomas Jefferson. Who was the author of the celebrated Kentucky Resolutions of 1798? I answer again, Thomas Jefferson. Now will any sane man who has read those resolutions have the hardihood to assert that he believes Thomas Jefferson, when writing the expression I have quoted from the Declaration of Independence, thought, or intended to assert in that expression, that the people of the several revolted colonies were one sovereign, supreme political community?

To assert such belief is to assert that either in the one or the other of those two documents Mr. Jefferson consciously stultified and contradicted himself in the grossest and most palpable manner imaginable. Is it conceivable that the great statesmen who in 1798 decribed the Constitution as a “Federal Compact,” to which “each State acceded as a State and is an integral party, its co States forming as to itself the other party,” that the statesman who was first to declare that “nullification” by a State or States of acts of Congress under certain circumstances “is the rightful remedy,” and that “every State has a natural right in cases not within the compact, (casus nonfoederis), to nullify of their own right, all assumptions of power by others within their own limits,” and who asserted that “Congress [i. e. the general government] was not a party [to] but merely the creature of the compact and subject, as to its assumption of power, to the final judgment of” the States, “by whom and for whose use itself and its powers were all created and modified;” and who asserted “that the government created by this compact was not made the exclusive or final judge of the powers delegated to itself, * * * * but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself as well of infractions as of the mode and manner of redress,” --is it, I repeat, conceivable that the author of such views of the Constitution, of the States and the general government, could ever have entertained the idea, much more could have promulgated it throughout the Union and to the world in an important public document, that the people of the several States were only mere territorial fractions of one great sovereign political community possessed by its own inherent, original right of all the powers of absolute sovereignty? Why, the question answers itself, and only in one way to any man of ordinary intelligence who has read the Declaration of Independence and the Kentucky Resolutions of 1798.

Have we any reason to suppose that the signers (other than Mr. Jefferson) to the Declaration of Independence, entertained Judge Story's theory as based on the phrase “one people?” To say nothing of their [444] being as fully conversant as Mr. Jefferson was with the facts relating to this subject that I have herein presented, let the record of the most important one of their own subsequent acts answer. It is well known that some of them were engaged in framing, about two years after the date of the Declaration, the first Constitution of the United States, and that all of them approved and advocated the ratification of that Constitution by all the States. I append the first three articles of that Constitution.

article I: The style of this Confederacy shall be the United States of America.

article II. Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this Confederation [not this people] expressly delegated to the United States in Congress assembled.

article III: The said States hereby severally enter into a firm league of friendship with each other for the common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to or attacks made upon them, or any one of them, on account of religion, sovereignty, trade or any pretense whatever.

Is it conceivable that the signers of the Declaration, if they entertained Judge Story's theory respecting the sovereignty of that absurd political myth, “the people of the United States,” would have so stultified themselves, have so ignored their own belief, would have been such open and villainous traitors to their supreme sovereign, this alleged one people, as to have framed, advocated and urged upon their constituents the ratification of those three articles — articles flatly contradicting in almost every line the theory which Judge Story foisted upon a deluded [Northern] people? And yet, right in the face of the facts detailed in this paper, and with which the Judge was intimately conversant, he seems to have believed, and unfortunately caused many millions of people to believe sincerely that the people of those thirteen Confederate Sovereign Nations were, at the date of the Declaration of Independence, one consolidated supreme, sovereign people, dominant over the entire country, at the very time that this alleged sovereign people possessed as one people no government whatever, nor did they pretend to have any. To this seeming belief of Judge Story's, I can only respond by quoting in part (and adding to it) the old Roman poet's famous exclamation:

CredantJudaeus Appella,”
Americanurvue Story! “Non ego.”

I mention the Judge's belief as a seeming belief. It may appear harsh, but when we remember that the Judge was a lawyer, and a very able one, I find it exceedingly difficult to entertain the idea that he sincerely believed in his own theory. The historian, Motley, as Mr. Davis shows, published in England during the late war, most glaring misstatements on the general subject discussed in this paper, statements of whose atrocious falsehood he (Motley) could not, in view of his most extensive political erudition, possibly have been ignorant.

It may be possibly asked by some consolidationist, if Mr. Jefferson, by the phrase “one people,” did not mean one people, why then did he employ the phrase?

While I have shown, I think, beyond all question, that he could not have meant nor have intended to indicate by the words “one people” that the people of the several States were a consolidated people composing as to the supreme sovereignty only one sole political community, there is no question in my mind, especially when we remember that the Declaration was intended much more as an address and an appeal to the outside world than to the inhabitants of the States, that he employed the words in question only in the sense that as to the common enemy (Great Britain) as well as to the other powers of the world, the people of the Confederated Colonies were, to all intents and purposes, politically one people, while as to the internal political relations between themselves, he well knew they were altogether of another character. The Kentucky resolutions prove that. The people of the States, under the first Constitution as well as under the present Constitution, always have been regarded by foreign powers and treated with as one single political community, one sovereign State, and that, too, very properly. In fact, from the necessity of the case, it could not be otherwise; for when the States, one by one, and at different dates acceded each as an integral State and not as a faction of one people, to the first as well as to the present Constitution, and appointed their common agent, the government of the United States, to be their only medium of political intercourse between themselves and foreign powers, they thereby gave notice to all those powers that as to them (i. e., all foreign powers,) they were but one power, one people. This, of unavoidable necessity, must be the case in all Confederations of sovereign States, who, by the terms of the compact between the Confederating parties, notify the other powers of the world that political or diplomatic intercourse can be had with them only through their common agent.

It must be further recollected that when the Declaration of Independence was published to the world, there was not the scrip of a pen [446] between the States in the shape of any form of government or constitution whatever, nor did they pretend that there was then any such form of Federal or general government in existence. The Congress of 1774, as well as that of 1775, was a mere consulting and advisory body so far as its relations towards the several colonies were concerned, and it pretended to no govermental authority over them.

Mr. Rutledge, a delegate from South Carolina to the Congress of 1774, said, in a speech in that body in September of that year, and without contradiction from any one, “We have no legal authority, * * *. We have no coercive authority. Our constituents are bound only in honor to observe our determinations.” [Bancroft, p. 129, vol. VII, edition of 1858]. Those Congresses enacted no laws bearing on the several colonies or the individual people thereof. They merely passed resolutions requesting or recommending the colonies (sometimes only the people of a town or county), to do this or that thing or to refrain from doing something. For instance, on 10th June, 1775, even after the war with Great Britain had begun, Congress,

On motion,

Resolved, That it be, and it is hereby earnestly recommended to the several colonies of New Hampshire, Rhode Island, Connecticut, and the interior towns of Massachusetts Bay, that they immediately furnish the American army before Boston with as much powder, out of the towns and the publick stocks as they can possibly spare, &c. [ “American Archives,” edition of 1843.]

Again, on 1st January, 1776, Congress, by resolution, declared “that it be recommended” to the “Conventions or Committees of safety” of South Carolina, Virginia, and the Provisional Council of North Carolina, “to make a vigorous opposition” to apprehended attacks by British forces on “Charlestown in South Carolina, and several places in Virginia, and probably in North Carolina.” [ “American Archives.” ]

The city and county of New York having, in May, 1775, through their delegates to Congress, asked Congress for its advice (not its orders), “how to conduct themselves with regard to the [British] troops” shortly expected to arrive there, Congress, on 15th May, 1775,

Resolved, That it be recommended to the inhabitants of New York that if the troops which are expected should arrive, the said colony act on the defensive so long as may be consistent with their safety and security,” &c. [American Archives.]

If necessary, I could fill pages with these mere recommendations of Congress in 1774, ‘75 and ‘76. [447]

If the Congresses referred to were the representatives of one great sovereign people occupying, as such, the territory of the thirteen colonies, we never would have heard of their passing resolutions merely recommending the colonies to do this thing or that thing, but we would have found the record of their Laws enacted after the usual forms of single sovereign or confederated governments, and ordering such and such things to be done by its individual subjects, or making by law, authorized requisitions on the States in the Confederacy.

To show what views Congress itself, at the times referred to, entertained of this alleged one sovereign people of the entire country, we have only to turn to their resolution of September 6th, 1774. [They first convened on 5th September of that year.]

Here is the resolution referred to:

Thursday, September 6th. The Congress, resuming the consideration of Rules of Conduct to be observed in debating and determining the questions that may come under consideration,

Resolved, That, in determining questions in this Congress, each colony or province shall have one vote.

What kind of a Republican one people, pray, was that which permitted the less than seventy thousand people of that tom-tit Rhode Island to have a voice equal in weight and influence with the voice of the several hundreds of thousands of the people of New York, or of Pennsylvania, or of Virginia? Is it presumable that the delegates from either of the three large States last mentioned, if they supposed the people of the Colonies, represented in that Congress, were the people of one sovereign political community, would have been or were such idiotic simpletons as to have agreed to such an utter absurdity (on the theory that the people of all the Colonies were one sovereign people) as the resolution last quoted? But they did agree to it; and why? because they knew that each Colony appearing in that Congress appeared as an Independent Sovereign, and they knew that a sovereign community of seventy thousand people is as much a sovereign as one of twenty millions, or a hundred millions of people.

Even after a written form of general government (i. e., the Articles of Confederation) was agreed on, and adopted several years afterwards, Rhode Island had, under it, an equal voice with any one of the larger States in conducting the affairs of the Confederacy. Article V. of that Government says, among other things, “in determining questions in the United States in Congress assembled, each State shall have one vote.” [448]

When the Congress of 1774 assembled, nobody in it entertained the idea of separation from Great Britain. The members of it met as a consulting and advisory body, to deliberate on the political status of British America, and to devise some practicable measures whereby to induce redress of their grievances by the British government. Among those measures, and the most important of all of them, was the project to persuade the people of the several Colonies to form, as individuals, not as political communities, associations in which each subscribing member pledged himself to the other members not to hold any commercial intercourse with the people of Great Britain until a redress of grievances could be obtained.

On the 22nd of September, 1774, Congress

Resolved unanimously, That the Congress request the merchants and others in the several Colonies not to send to Great Britain any orders for goods,” &c., &c,. until a redress of grievances could be had. [American Archives--p. 904, vol. i, 4th series, edition of 1843.]4 And the members of this Congress, as private individuals, but of course with the hope that the prestige of their position as public delegates, would exert great influence on the people at large, signed on 20th of October, 1774, certain articles of association termed by them the “Non-Importation, Non-Consumption, and Non-Exportation agreement” or association.

I append some extracts from this agreement which contained fourteen articles. It commences--

“ We, his Majesty's most loyal subjects, the delegates of the several colonies of New Hampshire, Massachusetts, Connecticut, [naming all except Georgia, who sent no delegates,] deputed to represent them in a Continental Congress, held in the city of Philadelphia on the 5th day of September, 1774, avowing our allegiance to his Majesty,” &c., &c. They then go on to say, among other things, that in order to obtain “a redress of grievances,” “we are of opinion that a non-importation, non-consumption, and non-exportation agreement, faithfully adhered to, will prove the most speedy, effectual and peaceable5 measure, and we therefore 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,” &c., until certain [449] acts of the British Parliament shall be repealed. Congress, well knowing that it was not a government of any kind, and knowing therefore its utter lack of authority or power to impose any legal penalties on, or to coerce such inhabitants of the colonies as might treat the objects of the association with contempt and act in violation of its articles, had to content itself with instigating its friends to “Boycott” all persons (inhabitants of the Colonies), who should disregard the agreement and act in violation thereof by publishing them in “The Gazette,” and by declaring that they should be “deemed foes to the rights of British America,” be regarded as “unworthy the rights of freemen,” and should be “universally contemned as the foes of American liberty;” and in the fourteenth article they resolved that they “would have no trade, commerce, dealings, or intercourse whatever with any Colony or Province in North America, which shall not accede to or which shall hereafter violate this association.” Although the articles of association were endorsed and adopted in some instances by colonial conventions; also by county meetings and lesser assemblages, they yet had not the sanctity and force of law, and nobody pretended that they had. They were merely the expression of a sentiment and a purpose that were entertained by a majority of the people of the Colonies, and an agreement, incapable of enforcement by law, between individual persons, even when adopted by a Colonial Convention. To show how perfectly absent from the minds of the members of this Congress was the purpose or even idea of separation from and independence of Great Britain, I copy here a portion of a foot-note on page 900 of Vol. II of “American Archives” :

On Friday, September 16th, the honorable delegates, now met in General Congress, were elegantly entertained by the gentlemen of Philadelphia. * * * * * After dinner the following toasts were drank: 1st. The King. 2d. The Queen. 3d. The Duke of Gloucester. 4th. The Prince of Wales and Royal Family. * * * 10th. May the cloud which hangs over Great Britain and the Colonies burst only on the heads of the present Ministry. * * * 18th. A happy conciliation between Great Britain and her Colonies on a constitutional ground.

In an Address to the King, dated October 25th, that Congress (of 1784) commence as follows:

Most Gracious Sovereign,--We, your Majesty's most faithful subjects, * * * by this our humble petition, beg leave to lay our grievances before the Throne. * * * * We ask but for peace, liberty and safety. * * * * Your royal authority over us and [450] our connection with Great Britain we shall always carefully and zealously endeavor to support and maintain.

I have, Mr. Secretary, at the risk of being regarded as prolix, a few more remarks to be made respecting that political myth of Judge Story's, the “one whole people,” or “We the people [one people] of the United States.”

To say nothing of publicists and jurists, no third-rate lawyer even will deny that any one people, whether called sovereign or not, cannot be in the possession of sovereignty who do not possess that great underlying title which is never surrendered or conveyed when fee-simple titles are granted by sovereigns to private purchasers of their land — I mean that great underlying title, the right of eminent domain in the soil. This right, this inestimable possession, is the very foundation-stone, or, to change the figure, the tap-root, the great and only source upon and from which all the other powers of inherent, original and undelegated sovereignty spring and depend for their vigor and existence.

A monarchy, an oligarchy or a republic that does not by virtue of this great right own the soil which it occupies, cannot be in possession of inherent, original sovereignty. If existing under any form of government whatever, and if it yet does not possess the right of eminent domain in the soil which it occupies, it necessarily cannot be an original sovereign power existing of and from its own right and vitality, but a mere creature, an agent exercising whatever powers it may possess by the permission and at the behest of some real sovereign or sovereigns.

Now, does that political personnel called the Government of the United States, or do those associated States, called the United States of America, possess, or do they pretend even at this day to possess, the right and power of eminent domain in the soil of a single State of this Confederacy of States called the United States of America? Of course the only answer to that question is, No, they do not. The practice of the United States Government from its foundation in 1789 down to this day (excepting the four years of the late war, when by the right, socalled, of might it exercised the rights of highway robbers on Southern soil) is alone sufficient to decide any question on that point. But the truth of this matter does not depend on the mere practice, significant as that is, of the General Government. Clause 18 of section 8 of article 1 of the Constitution acknowledges that the right of eminent domain in the soil of each separate State rests wholly and solely in the sovereign power and control of that distinct State. If the Government of France, or of Great Britain, or of Spain, should desire to take possession of and oust John Doe (their subject) from his three hundred acres of land at [451] the mouth of a certain river, for the purpose of erecting fortifications thereon, they proceed at once, without asking his consent, to exercise directly this reserved right of eminent domain and compel him, nolens volens, to give up the land. In these days of civilization they pay him the value of the land as a farm or a fishery, or as a watering-place, but they do not pay him its value as a site of defence against invasion by a public enemy; and no power exists whereby they could be compelled to pay him any price.

Let the United States Government, however, desire to purchase tomorrow for any public purpose from Richard Roe his farm of two hundred acres of land occupying a certain point jutting out into the water from the left bank of the Delaware river, and let the Government offer him thrice its value as a farm, or a fishery, or a bathing-beach; yet if he should say to the Government, “You shan't have it at any price,” that Government would stand before him helpless and with no more rights or authority in the case than the Government of Great Britain would. And this one individual could rightfully keep the General Government at bay and prevent its taking possession of the land until his real and only sovereign, the State of New Jersey, should take the land from him and permit the General Government, through a formal deed of cession to possess and occupy the land, but in such manner and for such purposes only as New Jersey might choose to dictate and specify in the deed of cession.6

What becomes now of Judge Story's “one whole people” as a political community, and having as such, any power whatever?

What, too, under this ample exposition of a plain fact of the Constitution, becomes of that much lauded and oft-repeated nonsensical twaddle and clap-trap, uttered by that vastly over-rated individual, Abraham Lincoln, viz: “the government of the people, by the people, for the people” ?

Of course no such government as Lincoln meant to indicate by that senseless phrase ever existed, or does now exist, on the area of territory occupied by the United States of America. Each separate State Government in the present Union is indeed, in the broadest and most comprehensive [452] sense, a government of the people, by the people, and for the people; but the people of the United States, as one politically sovereign community, never yet, by deputies or otherwise, framed any form of government, nor put it into execution, nor amended such form, nor did they ever yet elect a President of the United States, nor declare war, nor make peace, nor ever perform any political act whatever.

Extracts from and the substance of portions of the five acts of Congress specially referred to in the foregoing paper.

The Act of July 4, 1789.--Its title is: “An act for laying a duty on goods, wares and merchandise imported into the United States.”

Sections 1st and 2d specify various duties which are, “from and after the first day of August next,” to be levied on a vast number of enumerated goods, and discriminating as to the amounts of the duties to be paid in favor of goods imported in ships owned by citizens of the United States.

Sections 3d and 4th provide for the payment by Government to importers of goods of drawbacks on certain imports, which shall be exported from the United States within twelve months from the date of their importation.

Section 5th allows a discount to citizens of the United States importing goods in their own vessels of ten cent. on the duties imposed by this act. This discount is not allowed to other persons.

Section 6th provides for the operation of the act up to June, 1796, and to the termination of the next session of Congress thereafter.

No countries besides the United States are mentioned by name in this act, except China and India.

The Act of July 20, 1789.--Its title is: “An act imposing duties on tonnage.”

Section 1st imposes a duty of six cents per ton on ships wholly owned by a citizen or citizens of the United States; but on ships built in the United States, but belonging “wholly or in part to subjects of foreign powers,” thirty cents per ton. “All other ships or vessels [i. e., not built in the United States and owned by citizens thereof], fifty cents per ton.”

Section 2d provides that ships built and owned in the United States shall be required to pay tonnage only once a year while engaged in the fisheries or in the coastwise trade.

Section 3d provides that every ship engaged in the coastwise trade which was not built and owned in the United States shall pay fifty cents per ton on each entry. [453]

Section 4th provides that the act shall go into operation “from and after the 15th day of August next.”

The Act of July 31, 1789.--Its title is: “An act to regulate the collection of duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States.”

The first thirty-seven sections of this act are taken up with laying off the sea-board of the eleven United States (mentioning each by its name) and a portion of the Ohio river into revenue districts, and in establishing ports of entry in the same, and in making sundry regulations; but neither is North Carolina nor Rhode Island named, nor is any portion or portions of their territory laid off into revenue districts.

The second paragraph of section 38 and the whole of section 39 of this act run as follows:

And whereas the States of Rhode Island and Providence Plantations and of North Carolina have not as yet ratified the present Constitution of the United States, by reason whereof this act doth not extend to the collecting of duties within either of the said two States, and it is thereby become necessary that the following provision with respect to goods, wares or merchandise imported from either of the said States should, for the present, take place:

Section 39. Be it therefore further enacted, That all goods, wares and merchandize, not of their own growth or manufacture, which shall be imported from either of the said two States of Rhode Island and Providence Plantations or North Carolina, into any other port or place within the limits of the United States, as settled by the late treaty of peace, shall be subject to the like duties, seizures and forfeitures, as goods, wares or merchandize imported from any State or country without the said limits.

Section 40 of this act provides that “no goods, wares or merchandize of foreign growth or manufacture subject to the payment of duties, shall be brought into the United States in any other manner than by sea, nor in any ship or vessel less than thirty tons burthen, except within the district of Louisville [on the Ohio river] and except also in such vessels as are now actually on their voyages, * * * * * and all goods, wares and merchandize brought into the United States by land, contrary to this act, shall be forfeited, together with the carriages, horses and oxen that shall be employed in conveying the same.”

The Act of September 16th, 1789.--Its title is: “An act to suspend part of an act, [i. e., the act of July 31st] entitled ‘an act to regulate the collection of duties imposed by law,’ &c., &c., and for other purposes.” [454]

The 2d section of this act provides “That all the privileges and advantages to which ships and vessels owned by citizens of the United States are by law entitled, shall be, until the 15th day of January next, extended to ships and vessels wholly owned by citizens of the States of North Carolina and Rhode Island and Providence Plantations; provided” that the master of every ship so owned shall prove such ownership by certain described evidence.

Section 3 of this act runs as follows:

And be it further enacted, That all rum, loaf sugar and chocolate manufactured or made in the States of North Carolina or Rhode Island and Providence Plantations and imported or brought into the United States, shall be deemed and taken to be subject to the like duties as goods of the like kinds imported from any foreign State, kingdom or country, are made subject to.”

The Act of February 8th, 1790.--Its title is: “An act for giving effect to the several acts therein mentioned in respect to the State of North Carolina, and other purposes.” [This is the act that extended the laws of the United States over North Carolina after she had ratified the Constitution.]

The 2d section of this act divides North Carolina up into five revenue districts, and establishes certain ports of entry therein.

The 7th section of the act runs as follows:

And be it further enacted, That the 2d section of the act [i. e., the act of September 16th, 1879] entitled “an act to suspend part of an act,” &c., &c., passed the 16th day of September last, shall, with respect to the inhabitants and citizens of the State of Rhode Island and Providence Plantations, be revived, and also that the 4th section7 of said act shall be revived, and both continue in force until the first day of April next, and no longer.

1 Although it is a regular record of the proceedings of Congress, and has always been accessible to any person, I call it a discovery from the fact that everybody seems to have forgotten it.

2 I say “as yet,” for, as we progress in this paper, we will come to the time and shall see when Congress did levy duties under the act of July 4th, on the home manufactures of the two States coming into the United States, as high in amount as were the duties that were levied on the same kinds of manufactures imported from any other foreign country.

3 The treaty of 1782 with Great Britain.

4 The reader will find ample details of the objects and proceedings of this Congress in vol. i. of “American Archives, 4th series, 1774, 1775,” published by authority of an act of Congress.

5 Italicized by C. H.

6 The General Government as the agent of the States can, to be sure, rightfully exercise the right of eminent domain in the soil of all lands belonging in common to all the States, and not lying within the boundaries of any State. The 2d clause of section 3d of Article IV of the Constitution vests such power in Congress or the Government; but take notice, that clause does not say the lands or territory referred to belong to the Government, but it expressly says, “* * * the territory or other property belonging to the United States.”

7 The 4th section of the act of September 16th, above referred to, directed that Rehoboth, in the State of Massachusetts, should be continued a port of entry until the 15th of January, 1790.

The above section, viz: the 7th section of the act of February 8th, 1790, revives in favor of Rhode Island until 1st April, 1790, that section (the 2d) of the act of September 16th, which “extended” certain privileges to the ships of North Carolina and Rhode Island until the 15th January, 1790.

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