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A New
Body
Politic

Our First and
Only Ally

And yet, although the colonies were declared by this instrument to be free and independent States, or thirteen distinct communities, in Monroe's gloss, they nevertheless may be considered by the agreement of association or by the Declaration of Independence, or by their mere association, without the agreement of 1774 or the Declaration of 1776, to form a body politic, as they were expressly held to be by a signer of the Declaration of Independence, in the case of Respublica v. Sweers (1 Dallas, 41), decided in the Supreme Court of Pennsylvania in 1779, approximately two years before the Articles of Confederation, making of them a perpetual Union, had gone into effect.

The facts of this case are very interesting, in that one Cornelius Sweers, a deputy Commissary-General of Military Stores in the armies of the United States of America, was indicted in a Pennsylvania court held in Philadelphia, -because the United States did not then possess courts of their own,- in November, 1778, for forgery upon two bills with intent to defraud the United States. On the 14th of April, 1779, he was convicted upon both indictments, and five days later the exceptions taken by his counsel were overruled and sentence pronounced by the court. Mr. Chief Justice McKean said, in overruling the exceptions to the form and substance of these indictments, and in sentencing the defendant, convicted upon both of them:

The first exception was, "that, at the time of the offence charged, the United States were not a body corporate known in law." But the Court are of a different opinion. From the moment of their association, the United States necessarily became a body corporate; for, there was no superior from whom that character could otherwise be derived. In England, the king, lords, and commons, are certainly a body corporate; and yet there never was any charter or statute, by which they were expressly so created.

After examining certain technicalities of pleading, immaterial to the matter in hand, the Chief Justice thus continued:

Upon the whole, we are of opinion, that your conviction has been legal, as well as just; and, therefore, it only remains to pronounce the sentence of the court.

The sentence, alike important and interesting both to the defendant and to the reader, is happily expressed in terms of the independence of the United States:

Sentence, on the first indictment:- A fine of £70 and imprisonment until the 4th of July, the anniversary of American Independence.

Sentence, on the second indictment:- A fine of £1020 and imprisonment until the next annual election for Pennsylvania, and standing in the pillory for one hour.

Reverting to the second of the three resolutions introduced by Richard Henry Lee on June 7, 1776, " that it is expedient forthwith to take the most effectual measures for forming foreign Alliances," it is sufficient to say, in this connection, that a committee of five was chosen on the 12th in order to

prepare a plan of treaties to be proposed to foreign powers, and that Benjamin Franklin, a member of the committee on the Declaration of Independence, was, by the Congress, sent as our first minister to France, with which country he negotiated, on February 6, 1778, in conjunction with Silas Dean and Arthur Lee, an offensive and defensive treaty of alliance, by virtue of which France came to the aid of the United States, resulting in the acquisition of independence of the Colonies then, and today in the cooperation of the armies of these United States upon French soil to preserve inviolate the independence of our first and our only ally.

It could be shown, if time and space permitted, that the ideas and the language of the Declaration of Independence came from English philosophers, from Hooker to Locke; that every important phase of the preamble is to be found in one form or another in Locke's two discourses on Civil Government; and that, indeed, the important phrases of the preamble can be found in Locke's exact language.

But admitting that to be so, it does not detract from the importance of the document, because Locke spoke as an individual, justifying the Revolution of 1688, whereas the Congress spoke as a political body making the Revolution of 1776. And it is believed that the Second Continental Congress is the first parliament, legislature, or congress that ever adopted and proclaimed these doctrines, and that the United States is the first country which ever put them into effect in the form in which they were stated.

Doctrines

The doctrines are in truth the doctrines of English liberty. They are not, Origin of the as has been so often asserted, the doctrines of Rousseau. At least, they were not borrowed from him, and if they are to be found in Rousseau's Social Contract, they were taken from Locke, as Rousseau is known to have drawn heavily upon Locke for this little work.

The supposed influence of Rousseau is perhaps best stated by two careful and thoughtful investigators and writers. Thus, Sir Henry Sumner Maine says in his Ancient Law:

The American lawyers of the time, and particularly those of Virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their English contemporaries in including much which could only have been derived from the legal literature of continental Europe. A very few glances at the writings of Jefferson will show how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in France, and we cannot doubt that it was sympathy with the peculiar ideas of the French jurists which led him and the other colonial lawyers who guided the course of events in America to join the specially French assumption that "all men are born equal" with the assumption, more familiar to Englishmen, that all men are born free, in the very first lines of their Declaration of Independence. The passage was one of great importance to the history of the doctrine before us. The American lawyers, in thus prominently and emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country, and in a less degree in

Great Britain, which is far from having yet spent itself; but beside this they returned the dogma they had adopted to its home in France, endowed with vastly greater energy and enjoying much greater claims on general reception and respect.1

In speaking of the influence of Rousseau and his followers, John Morley said, in his life of Rousseau, first published in 1873, that:

It was that influence which, though it certainly did not produce, yet did as certainly give a deep and remarkable bias, first to the American Revolution, and a dozen years afterwards to the French Revolution.2

In The Fortnightly Review for 1879, Mr. Morley, returning to the subject, declared that:

Nobody, however, who has examined so much as the mere surface of the question, would now dream of denying that the French theories of society played an important part in the preparation of American independence.3

As a colonist, Jefferson was, in his earlier days, influenced by English liberal writers, for the purpose of the colonists was to show that as Englishmen they were entitled to English liberty as laid down in English writers of repute. The Declaration of Independence naturally and necessarily embodied the views and the conception of government upon which the colonists had made their stand.

As a statesman, and especially after his return from France, where he succeeded Franklin as American Minister, Jefferson may, indeed, have been influenced by French ideas and conceptions.*

For the body of his countrymen who had not visited, much less resided in France, the French philosophers came with the French troops to America, and remained after the French Army departed, having accomplished its purpose at Yorktown. It is believed that in the matter of philosophy and democratic doctrine, they returned with more than they brought.

1 Sir Henry Sumner Maine, Ancient Law, 10th Edition, 1884, pp. 91–92. In a note to this passage, published in his edition of Ancient Law, p. 409, Sir Frederick Pollock thus states what is believed to be the correct and the prevailing views on this subject:

"This is not the place to speak at large of Rousseau's influence on the founders of American independence and the leaders of the French Revolution; but the careful research of American scholars has lately shown that the Principles of 1789 owed more to the American Declaration of Independence and the earlier Bills of Rights of several States than we used to suppose, and less to Rousseau, and that the language of the American constitutional instruments proceeded from the school not of Rousseau but of Locke." (Scherger, The Evolution of Modern Liberty, New York, 1904).

2 John Morley, Rousseau, 1873, Vol. 1, p. 188.

3 John Morley, A Word with Some Critics, The Fortnightly Review, October, 1879, p. 584. It is true that Jefferson afterwards "drank a deep draught from the intoxicating cup of the French Revolution," but we do not think that in 1776 he had felt the French political influence. He was, we know, a student of Locke, and Locke asserted the natural equality of man as strongly as his natural liberty. (W. T. Brantly, Of the Influence of European Speculation in the Formation of the Federal Constitution, 1880, Southern Law Review, New Series, Vol. VI, p. 354.)

III

A CONFEDERATION OF SOVEREIGN STATES

As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states, anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. (Chief Justice Marshall in Gibbons v. Ogden, 9 Wheaton, I, 187, decided in 1824.)

In June 1776, the Convention of Virginia formally declared, that Virginia was a free, sovereign, and independent state; and on the 4th of July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states; and that as such, they had full power to levy war, conclude peace, &c. I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent states, &c. but that each of them was a sovereign and independent state, that is, that each of them had a right to govern itself by its own authority, and its own laws, without any controul from any other power upon earth.

Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain and the United Colonies, jointly, and separately, was a civil war; but instantly, on that great and ever memorable event, the war changed its nature, and became a PUBLIC war between independent governments; and immediately thereupon ALL the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia; and all the former political connexion between Great Britain and Virginia, and also between their respective subjects, were totally dissolved; and not only the two nations, but all the subjects of each, were in a state of war; precisely as in the present war between Great Britain and France. Vatt. lib. 3. c. 18. s. 292, 295. lib. 3. c. 5, S. 70, 72, and 73.

From the 4th of July, 1776, the American States were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. On the 6th of February, 1778, the King of France entered into a treaty of alliance with the United States; and on the 8th of Oct. 1782, a treaty of Amity and Commerce was concluded between the United States and the States General of the United Provinces. I have ever considered it as the established doctrine of the United States, that their independence originated from, and commenced with, the declaration of Congress, on the 4th of July. 1776; and that no other period can be fixed on for its commencement; and that all laws made by the legislatures of the several states, after the declaration of independence, were the laws of sovereign and independent governments. (Mr. Justice Chase in Ware v. Hylton, 3 Dallas 199, pp. 224-225, decided in 1796.)

The court entertains no doubt that after the 4th of October 1776, he became a member of the new society, entitled to the protection of its government, and bound to that government by the ties of allegiance.

This opinion is predicated upon a principle which is believed to be undeniable, that the several states which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence, it results, that the laws of the several state governments were the laws of sovereign states, and as such were obligatory upon the people of such state, from the time they were enacted. (Mr. Justice Cushing in McIlvaine v.Coxe, 4 Cranch, 209, 212, decided in 1808.)

This Court has decided, "That there was no territory within the United States, that was claimed in any other right than that of some one of the confederated states; therefore, there could be no acquisition of territory made by the United States, distinct from, or independent of, some one of the states; the soil and sovereignty were as much theirs at the

declaration of independence, as at this hour." (1827.) "Thus stood the rights of the parties at the commencement of the revolution; ..." (Mr. Justice Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, p. 86.)

The People of this State, being by the Providence of God, free and independent, have the sole and exclusive Right of governing themselves as a free, sovereign, and independent State; and having from their Ancestors derived a free and excellent Constitution of Government whereby the Legislature depends on the free and annual Election of the People, they have the best Security for the Preservation of their civil and religious Rights and Liberties. And forasmuch as the free Fruition of such Liberties and Privileges as Humanity, Civility and Christianity call for, as is due to every Man in his Place and Proportion, without Impeachment and Infringement, hath ever been, and will be the Tranquility and Stability of Churches and Commonwealths; and the Denial thereof, the Disturbance, if not the Ruin of both.

Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled, That the ancient Form of Civil Government, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever. And that this Republic is, and shall forever be and remain, a free, sovereign and independent State, by the Name of the STATE OF CONNECTICUT. (Constitution of Connecticut, 1776, Ben: Perley Poore, The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, 1877, Part I, pp. 257–258.)

The people inhabiting the territory formerly called the province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign and independent body-politic or State, by the name of the commonwealth of Massachusetts. (Constitution of Massachusetts, 1780, Part The Second, The Frame of Government, Ben: Perley Poore, The Federal and State Constitutions, Colonial Charters, and other Organic Laws of the United States, 1877, Part I, p. 960.)

This alliance, league, or confederacy of the states with each other, can leave no doubt, that up to the time of the final ratification in March, 1781, each state was separately sovereign in its own inherent right; and so remained as to all power not expressly delegated, as was declared in the second article [of Confederation]. The third article is also conclusive, that the object of the alliance was to maintain and perpetuate their separate sovereignty. This is the more manifcst, when these articles are taken in connection with the alliance of the states with France.

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"The essential and direct end of the present defensive alliance, is to maintain effectually, the liberty, sovereignty, and independence, absolute and unlimited, of the said United States, as well in matters of government, as of commerce." In the 11th article, the parties make a mutual guaranty; in that of France, “His most Christian majesty guaranties, on his part, to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce; also their posseesions, and the additions or conquests that their confederation may make during the war," &c. 1 Laws, 95, 98.

This guaranty was fulfilled by the treaty of peace, in which "His Britannic majesty acknowledges the said United States, to wit: New Hampshire, &c., to be free, sovereign and independent states." I Laws. 196. This recognition, relating back to the separate or unanimous declarations by the states, as this Court have held it; has the same effect, as if the states had then assumed the same position, by the previous authority of the king; the treaty not being a grant, but a recognition, and subsequent ratification of their pre-existing condition; and all acts which had declared and defined it previous to the treaty, related back to 1776.

Such being the relations of the several states, in their federal and foreign concerns, it follows, that as to their internal concerns, they were in the same attitude of absolute and unlimited sovereignty, before the articles of confederation, as they were afterwards, except so far as they abridged it. Each was a party to the treaty of alliance and peace, and each was bound by the guarantee to France, after the confederation was abolished, and the constitution was established, as firmly as before: the states who delayed their ratification remained so bound, for they could by no act of their own, impair the rights of France and they were equally entitled to the effects of the treaty of peace, whether they became constituent parts of the Union, by ratifying the constitution, or remained foreign states, by not adopting it. Their state constitutions and governments, remained unimpaired by any surrender of their rights; so that of consequence, their sovereignty was perfect, so long as they continued free from any federal shackles; so the states acted, and so the

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