There is yet another view of this subject,which cannot be properly omitted.It has already been shown that,prior to the Revolution,the colonies were separate and distinct,and were not,in any political sense,or for any purpose of government,"one people."The sovereignty over them was in the British Crown;but that sovereignty was not jointly over all,but separately over each,and might have been abandoned as to some,and retained so to others.The Declaration of Independence broke this connection.By that act,and not by the subsequent recognition of their independence,the colonies became free States.What then became of the sovereignty of which we speak?It could not be in abeyance;the moment it was lost by the British Crown,it must have vested somewhere else.Doubtless it vested in the States themselves.But,as they were separate and distinct as colonies,the sovereignty over one could not vest,either in whole or in part,in any other.Each took to itself that sovereignty which applied to itself,and for which alone it had contended with the British Crown,to wit:the sovereignty over itself.Thus each colony became a free and sovereign State.
This is the character which they claim in the very terms of the Declaration of Independence;in this character they formed the Colonial Government,and in this character that government always regarded them.Indeed,even in the earlier treaties with foreign powers,the distinct sovereignty of the States is carefully recognized.Thus,the treaty of alliance with France,in 1778,is made between "the most Christian King and the United States of North America,to wit:New Hampshire,Massachusetts Bay,Rhode Island,Connecticut,"&c.,enumerating them all by name.The same form is observed in the treaty of amity and commerce with the States General of the United Netherlands,in 1782,and in the treaty with Sweden,in 1783.In the convention with the Netherlands,in 1782,concerning recaptured vessels,the names of the States are not recited,but "the United States of America"is the style adopted;and so also in some others.This circumstance shows that the two forms of expression were considered equivalent;and that foreign nations,in treating with the revolutionary government,considered that they treated with distinct sovereignties,through their common agent,and not with a new nation,composed of all those sovereign countries together.
It is true,they treated with them jointly,and not severally;they considered themselves all bound to the observance of their stipulations,and they believed that the common authority,which was established between and among them,was sufficient to secure that object.The provisional articles with Great Britain,in 1782,by which our independence was acknowledged,proceeded upon the same idea.The first,article declares,that "His Britannic Majesty acknowledges the said United States,to wit:New Hampshire,Massachusetts Bay,Rhode Island and Providence Plantations,Connecticut,New York,New Jersey,Pennsylvania,Delaware,Maryland,Virginia,North Carolina,South Carolina and Georgia,to be free,sovereign and independent States that he treats with them as such,"&c.Thus the very act,by which their former sovereign releases them from their allegiance to him,confirms to each one by name the sovereignty within its own limits,and acknowledges it to be a free,sovereign,and independent State;united,indeed,with all the others,but not as forming with them tiny new and separate nation.
The language employed is not suited to convey any other idea.If it had been in the contemplation of the parties,that the States had merged themselves into a single nation,something like the following formula would naturally have suggested itself as proper:"His Britannic Majesty acknowledges that New Hampshire,Massachusetts Bay,&c.,former colonies of Great Britain and now united together as one people,are a free,sovereign and independent State,"&c.The difference between the two forms of expression,and the strict adaptation of each to the state of things which it contemplates,will be apparent to every reader.
It requires strong and plain proof to authorize us to say,that a nation once sovereign has ceased to be so.And yet Judge Story requires us to,believe this of the colonies,although he acknowledges that he cannot tell,with any degree of confidence or precision,when,how,or to what extent the sovereignty,which they acquired by declaring their independence,was surrendered.According to him,the colonies are to be presumed to have yielded this sovereignty to a government established by themselves for a special and temporary purpose,which existed only at their will,and by their aid and support;whose powers were wholly undefined,and for the most part exercised by usurpation on its part,and legitimated only by the acquiescence of those who appointed it;whose authority was without any adequate sanction which it could itself apply,and which,as to all the important functions of sovereignty,was a mere name ?the shadow without the substance!If the fact was really so,I venture to affirm that the history of the world affords no similar instance of folly and infatuation.12
