It was,as already remarked,precisely the same body after the Declaration of Independence as before.As it was not then a government,and could not establish any new or valid relations between the colonies,so long as they acknowledged themselves dependencies of the British Crown,they certainly could not do so after the Declaration of Independence,without some new grant of power.The dependent colonies had then become independent States;
their political condition and relations were necessarily changed by that circumstance;the deliberative and advisory body,through whom they had consulted together as colonies,was functus officio;the authority which appointed them had ceased to exist,or was suspended by a higher authority.
Everything which they did,after this period and before the Articles of Confederation,was without any other right or authority than what was derived from the mere consent and acquiescence of the several States.In the ordinary business of that government de facto,which the occasion had called into existence,they did whatever the public interest seemed to require,upon the secure reliance that their acts would be approved and confirmed.In other cases,however,they called for specific grants of power;and in such cases,each representative applied to his own State alone,and not to any other State or people.Indeed,as they were called into existence by 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 Judge Story 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 Judge Story'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 instances 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 the spirit of opposition to the claim 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.
