of "the good people of these colonies,” but it immediately voted that each colony should have an equal voice. This remained the rule in the second continental congress, which began its session May 10, 1775, at Philadelphia. In this, Georgia also was finally represented. The strife was now transferred from the forum to the tented field. Congress did not limit itself to trying to do what a general war demanded, such as the equipment of a continental army, the creation of a common treasury, etc., but it set itself up — without being regarded on this account as stepping beyond its powers - as an authorized leader of the colonies in their separate affairs, since it exhorted them to give themselves governments such as their needs and the common welfare demanded, and expressed the belief "that the exercise of every kind of authority under the crown of Great Britain should be totally suppressed.” Not in pursuance of resolutions of the legislatures or of any extraordinary representative assemblies of the people of the different colonies, which might have given instructions binding upon the respective delegates, but by virtue of its own revolutionary authority, which, because it was revolutionary, had, and could have, no legal limits, congress stepped forth as the sole representative of the commonwealth to act for the common weal in accordance with this conviction. June 10, 1776, it voted to appoint a committee to draw a declaration “that these united colonies are, and of right ought to be, free and independent states."

As congress acted as a revolutionary representative of the entire commonwealth, so from the beginning it claimed full political independence and sovereignty only for the colonies as a united whole. The resolution passed on the following day to appoint a committee to draft a plan of confederation was, therefore, not only a direct

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result of, but was already contained in, the resolution of the 10th. Since the decision of congress was ratified by the acts of the colonies, its formal ratification by the governments or people of the different colonies was thought unnecessary and did not take place. The declaration of independence, a formulization on the 4th of July of the resolution of the 10th of June, did not concern itself as to whether the colonies as states should enter into a political league of some kind or other, but simply as to how the Union, made as a matter of fact long before and now declared to exist as matter of law, should be shaped in detail. The constituent members of the Union have never legally or actually been “free and independent states ” in the full and proper sense of the term.? As Lincoln said, the Union is older than the states, and the states became "states" only as constituent members of the Union; and the word "state" has, therefore, always had in America, legally and actually, only a limited

a meaning, which excludes the idea of “sovereignty” in the full and proper sense of the word.

It was more than a year (November 15, 1777) before congress finally decided how its own revolutionary authority, which so far had been limited only by its own ideas and by public opinion, should be brought under and within fixed legal forms. The conclusions reached placed the Union upon a wholly new basis. The very title of the proposed paper showed this clearly. It was not a constitution, but "articles of confederation.” The change was even more apparent in the opening sentence. In the declaration of independence the separate colonies are not once named. At the end, it says: “The foregoing declaration was, by order of congress, engrossed and signed by the following members.” Under the signature of the presiding officer followed those of his colleagues in the order of their states. The name of the state was prefixed to the names of its representatives, without the addition of a single word. Now, on the contrary, there was an enumeration of the separate states whose “delegates” had, according to the next article, agreed upon a “confederation and perpetual union,” but nothing more was said of the “people,” of whom the first sentence of the declaration of independence had spoken. So, too, the articles of confederation did not begin with a recital of the rights and powers of the Union.

i The next resolution, which has been much too little considered in the conflict over questions of constitutional law, as to the political nature of the Union, cannot be harmonized with any other view than that here expressed. It reads: "Resolved, that copies of the declaration be sent to the several assemblies, conventions and committees, our counciis of safety, and to the several commanding officers of the continental troops; that it be proclaimed in each of the United States and at the head of the army."

2 Rüttimann, in his Das Nordamerikanische Bundesstaatsrecht (I., 23), affirms the contrary, but bases his opinion too closely upon the assumption that each colony had “its own constitution and a full political organization complete for all public purposes.” Moreover, there are weighty arguments easy to cite against this latter assertion.


The second article— the first relates only to the namedeclares that “each state retains its sovereignty, freedom and independence,” as well as every power and every right not “expressly” delegated to congress. The third article takes a still more significant step forward, for it declares that “the said states hereby severally enter into a firm league of friendship with each other” for the purposes enumerated. Thus, in boldest opposition to facts, the Union appears, in the articles of confederation, as being first called into life by them, and the character of a simple league of states, now really given it for the first time, is put forward as one in full conformity with the actual and legal facts of the past. Congress transformed itself, so far as the nature of the mandates of its members was concerned, from a (revolutionary) government into a congress of delegates, for the right of recalling the members was reserved to the states. It is not expressly declared that this right belongs to the legislature, but the method of electing their delegates is wholly remitted to them. The people are mentioned only here and there as an object of the Union. As the source of power and as self-governing they never appear. So far as the Union is concerned, the legislatures are treated as the sole and unlimited bearers of sovereignty. They were to ratify the articles of confederation, and give them, by this ratification, the force of law, although they had been authorized to form a constitution for the Union, neither by the constitutions of their respective states, nor in any way whatever. Moreover, changes in the articles were made dependent upon their approval, and the consent of all the legislatures was required for the slightest change. Congress exhorted the legislatures, by an act of public usurpation against the legal consequences of historical facts, to transform the Union into a league of states, and the legislatures recklessly responded to this demand. The circumstance that some of them delayed, and for so long a time refused, their ratification was in no way connected with their legal incompetence, and did not result from any wish to keep for the Union the political nature given it by the course of the Revolution. They considered it as self-evident that congress, during this whole time, regarded the articles of confederation as having the force of law, and they would have offered the most stubborn opposition if it had sought once more, as in the beginning of the Revolution, to fix the boundaries of its own power. While it was recognized that the decisive steps of the continental congress had created a legal status for the United States, not only as against England and the rest of the world, but also in relation to the different states, yet it cannot be questioned that, with the adoption of the articles of confederation, a revolution was accomplished. This revolution met with no opposition among the people. Its entire correspondence with their whole political thought and impulse was generally fully recognized, and another advance on the part of congress would unquestionably have met with an opposition not to be over


The legal consequences of the decisive steps taken by the continental congress in regard to the relation of the colonies, i. e., the states, to each other, went far beyond

., the actual facts of the case, and in a conflict between law and fact it goes without saying that the latter must triumph. The population of the states was so little one people, and felt so little as one people, that they wished to be one, in the most essential matters, only far enough to conquer independence, and to assert their right to self-government. It was supposed that the articles of confederation had preserved the powers which the central authority needed for the accomplishment of this first and most important end of the Revolution, but long before they had been ratified by the last legislature (that of Maryland, March 1, 1781), the bitterest experience had made it a question of the highest importance as to whether this view was sustained by hard facts. The weightiest rights of sovereignty essential to political life were, of course, granted to congress, and either wholly withdrawn from the separate states or given them only within very deeply cut limits. But it was soon evident that a wholly useless

1 The fourth article contains provisions in regard to purely internal relations, and especially in regard to the interests and rights of individuals, which paved the way for a national fusion.

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