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Are We One Nation?

or The nature of the association between these united States

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by Scott T. Whiteman, Esq.

Abraham Lincoln’s famous Gettysburg Address begins, “Four score and seven years ago our fathers brought forth on this continent, a new nation.” The speech was delivered in November of 1863. Four score and seven (87) years prior was 1776 and Lincoln obviously intended to continue the post-declaration and Unionist construct as annunciated by Supreme Court Justice and Harvard Law professor, Joseph Story. In 1833, Justice Story wrote, “from the moment of the declaration of independence, if not for most purposes from an antecedent period, the united colonies must be considered as being a nation de facto, having a general government over it created, and acting by the general government of the people of all the colonies.”[1] Was Lincoln’s claim that the union predated and created the states true?[2] Did one new nation emerge on the face of the Earth on July 4, 1776, or even before, and thereafter create subservient states to do its will? What occurred on July 4, 1776 and what station did the colonies occupy upon the signing of the Unanimous Declaration of the thirteen united States of America?

To get to the end, I must start from the beginning. From the early Seventeenth Century through the mid-Eighteenth Century, Kings James through George ordered grants to various men or companies for the colonialisation of various portions of North America. At no time did the grants relate the people of one chartered colony to another chartered colony. Virginia, the first colony, remained distinctly Virginia and its proper concern were Virginians all the way through 1732 when King George chartered Georgia. Certainly, it was the King who issued the charter, and each colony had a similarity in that they each owed allegiance to the same King, but they were not co-colonies, or “one people” in the political sense of the term. In order to be “one people” politically, the people must owe their allegiance to one common sovereign and their fates must be inexorably tied to each other.[3] But this was not the case of the colonies, which could, with the King’s consent or by his unilateral decree, separate, alienate, sub-divide, or whatever without consultation from the other colonies.[4] As a matter of almost unknown historical note, Virginia declared her independence on the 15^th of May, 1776 without any consultation of the other colonies.[5] If the colonials were “one people” and Virginia failed to consult “it” her secession from England prior to July 4 was gross presumption.

The “colonial governments were clothed with the sovereign power of making laws, and of enforcing obedience to them, from their own people. The people of one colony owed no allegiance to the government of any other colony” and “the charter of any one of them might have been destroyed without in any manner affecting the rest.”[6] Point of fact, the colonies, while owing allegiance to a common crown, were “separate and distinct in their creation; separate and distinct in the changes and modifications of their governments…; separate and distinct in political functions, in political rights and in political duties.”[7] As colonial governments, they were not related in any wise with each other although they owed allegiance to a common sovereign. “The sovereignty over them was the British Crown; but that sovereignty was not jointly over all, but separately over each.”[8] The colonies and colonists understood, “two [or more] sovereign states may also be subject to the same prince, without any dependence on each other, and each may retains all its rights as a free and sovereign state.”[9]

It was not until 1765, in response to the Stamp Act that the colonies met together, at the call of John Otis of Massachusetts, to work together to declare their common rights as common subjects of an English sovereign. But in the thirteen articles of the 1765 Declaration of Rights, the congress (not a proper noun in the document) of the colonies declared their political distinction from each other by the repeated use of the phrase “these colonies” and the objective plural pronoun “them” at least twenty times, but only refer to “the colonists” three times. In the first instance, “colonists” are invoked for the purpose of calling the King to respect the essential rights and liberties of the colonists, the second instance calls to mind the nature of private property of the colonists, and the final instance again concerned the rights of the colonists as British subjects. By no means did the 1765 congress unite the “people” into one unit, since, in fact, no representatives of Virginia, New Hampshire, North Carolina or Georgia attended. After 1765 the Colonies did not convene “in congress” again until September, 1774.

The Declaration of Resolves of the First Congressional Congress (1774) did note to the King that the Parliament had bound “the people of America” by certain statutes and bureaucratic boards, and declared at the end that “Americans cannot submit” to the prior bad acts mentioned, but there was no legal effect to the Resolves. They united neither the colonists nor the colonies; the colonies neither declared independence from the Crown nor unification with each other. They only asserted the rights inherent to Englishmen and sought for the colonies and colonists to be restored “to that state, in which both countries found happiness and prosperity,” namely separate and distinct colonial charters of the several colonies, each obligated to the crown, but none obligated to another.

Furthermore, it should be noted that the purpose for which the Colonies sent delegates to the First Congress was to issue advisory opinions.[10] This congress issued the Articles of Association to boycott certain English goods, but the Articles were binding only on those colonies that agreed to them. Since Georgia did not attend that Congress, they were not agreed to by and therefore were not binding on Georgia. No colony was obligated by the Acts of another colony, or even by the congress of the several colonies.

The Second Continental Congress was called, and the Colonies sent delegates thereto, under the same pretenses as the First, to deliberate on, and advise the colonies of, ways in which they, the several Colonies, might restore their formerly prosperous relation to the Crown.[11] The Acts of the Second Continental Congress were similarly non-binding, advisory opinions for the Colonies.

Then the fateful day in American history: July 4, 1776. Prior to that day, the colonies had a common sovereign, but distinct governments and interests. After that day, each emergent State asserted its right to self-government, its own sovereignty, and each maintained distinct governments and interests.[12] A Marylander was no more or less a Marylander on July 3 than he was on July 5, 1776.

With the Signing of the Declaration, each of the thirteen former Colonies of England became “Free and Independent States,” each possessing within itself the power to do that which by right every other State or Nation on the Earth had the rightful power to do. With the signing of the Declaration, the new States retained the separate and equal station to which the Laws of Nature and of Nature’s God entitled them. In summary, the Colonies removed themselves from under their once common sovereign, and regressed to their distinct colonial governments and interests without uniting with each other. Independence could have come to one colony at a time (as it did in the case of Virginia, New Hampshire and South Carolina[13]), to some but not others,[14] or in a group or several groups, but in our particular instance, the colonies leagued together and declared their independence from the crown, and staunchly maintained their independence from each other. Upon the signing of the Declaration, each emergent state had the right, “to levy war, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” The Unanimous Declaration united neither “the People,” nor even the emergent States, to each other; it spoke only “to their relation to the mother country, and not to their relation to one another; and the sole question before them was, whether they should continue in a state of dependence on the British Crown, or not.”[15]

The Declaration can be broken into four parts: first, the opening statement of general principles; second the statement of shared beliefs of the colonies; third, the list of offenses committed against the colonies by the King; and lastly the particular application of those general principles as to the colonies and the king. Instantly, we are interested in The Enacting Clause, or the particular application of the general principles, shared beliefs and offenses of the king that led the colonies to take action. It reads:

We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do … solemnly publish and declare, that these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved[16]; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.[17]

Notice all the plural terms in The Enacting Clause, rather than singular terms. If a single nation was created, the paragraph would read:

It, therefore, the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of its intentions, does solemnly publish and declare, that the United Colonies are, and of Right ought to be Free and Independent; that it is Absolved from all Allegiance to the British Crown, and that all political connection between it and the State of Great Britain, is and ought to be totally dissolved; and that as a Free and Independent State, it has full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which an Independent Nation may of right do.

Consider, the title of the document itself. The document we refer to as the Declaration of Independence is actually styled, “The unanimous Declaration of the thirteen united States of America.” The four words, “of the thirteen united” were originally written very small, and the word “united” is not capitalised. From this we should learn that by this document, styled as a declaration of several States in which they did not give the term “United States” the value of being a proper noun, that several states came together to declare their independence from the King, and that is it. The “Declaration of Independence was simply what it calls itself: a declaration, a justificatory statement addressed to the world without. … The evidence is, that it enacts nothing save the one point of the independence of the colonies.”[18]

The word “unanimous” itself implies a multitude of actors. Unanimity is an agreement of a number of persons or entities in opinion or determination,[19] but it is neither a cohesion nor incorporation of the people who come to the agreement into a single unit. Unanimity of purpose does imply solidarity in action, but not a singleness of the actors. Thus, several Colonies of the King combined their individual, separate and independent efforts in mutual concord, to stand together against the King. The emergent States did not stand as “one,” they stood arm in arm together for a common purpose, namely to remove themselves from under the authority of the King.[20] But Florida, Quebec, Nova Scotia, each British colonies in North America, did not emancipate themselves from England.

Thus from July 4, 1776 through March 1, 1781,[21] for nearly five years, the thirteen formerly British colonies which declared themselves independent and free States severally remained absolutely entitled to the powers inherent to any nation until they entered into a “confederacy [called] The United States of America” in which “each State retain[ed] its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[22] So between the signing of the Declaration and until the Articles of Confederation became effective, each state had the absolute and total right to do, as the Declaration noted, all acts and things which independent states may of right do.

Lincoln’s opinions notwithstanding, our fathers did not forge upon this continent “a new nation” in 1776. The several states, acting in the interests of the people of the respective States, removed themselves from under the Crown and declared themselves to be free and independent, and able to do all that which the Laws of Nature and of Nature’s God entitled them. Each State had the power to coin money without affecting another state and each could participate in commerce with any other nation on the Earth without consenting another state. These free, independent and several nations had obligations toward “the People” in their respective states, but had no obligation to the people in other states except that which is due to all men. “The end or object of civil society is to procure for [its own] citizens whatever they stand in need of for the necessities, the conveniences, the accommodation of life, and in general, whatever constitutes happiness.”[23] It was not until the ratification of The Articles of Confederation that the relation between the states changed, which, Lord willing, I will be able to write on at a later date.




Scott T. Whiteman is a Reformed Christian, husband, and father. He is a practicing attorney in the State of Maryland and Managing Editor of TheAmericanView.com. He is available for radio or TV interviews, or for speeches, by contacting him at (410) 760-7897 or through www.theamericanview.com.

Endnotes

[1] Joseph Story. Commentaries on the Constitution. Abridged by the Author. At §110. First Publication 1833. Reprinted by Carolina Academic Press (1987).

[2] Charles L.C. Minor. The Real Lincoln. Fourth Edition. Revised and Enlarged. (1928). First Publication 1903. Reprinted by Sprinkle Publications (1992). Appendix C by Paul S. Whitcomb at 269.

[3] Abel P. Upshur (1790-1844), The Federal Government: Its True Nature and Character. Invictus. First Publication 1868. Decatur, Michigan (1997). At p. 22.

[4] Upshur at 60.

[5] Upshur, at 58ff, FN “*”

[6] Upshur at 22-23.

[7] Upshur at 23.

[8] Upshur at 60.

[9] Emerich de Vattel, The Law of Nations, Chitty Edition (1854). First Publication 1758. Reprinted by The Lawbook Exchange. New Jersey. (2005). At bk. I, ch., 1, §9. emphasis added.

[10] Upshur at 30-31, especially “*” note and 56-57

[11] Upshur at 34-35, especially “*” note.

[12] “The Declaration of Independence broke this connection [between the King and the colonies, severally]. By that act … 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 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 has contended with the British Crown, to wit: the sovereignty over itself. Thus each colony became a free and sovereign State.” Upshur at 60.

[13] Upshur at 56-57.

[14] As was the case in Florida, Nova Scotia and other English colonies in North America which did not join in the confederacy to separate from England.

[15] Upshur at 54.

[16] A near direct quote from Richard Henry Lee’s June 7, 1776 motion in the Second Continental Congress calling for the secession of the American Colonies from Great Britain.

[17] Unanimous Declaration of the Thirteen United States of America. Emphasis added.

[18] R.L. Dabney, Defense of Virginia [and through her, of the South]. First Publication 1867. Sprinkle Publications Reprint (1991). At. P. 73. emphasis in original

[19] Noah Webster, American Dictionary of the English Language, 1828 Edition.

[20] Upshur at 55.

[21] The Articles of Confederation were written in Congress beginning November 15, 1777, completed and sent to the various states on July 9, 1778, but did not became effective until Maryland ratified them on March 1, 1781.

[22] The Articles of Confederation and Perpetual Union Between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Caroline, South Carolina, Georgia, Arts. 1, & 2.

[23] de Vattel, bk. I, ch. 2, §15.

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