It is perfectly apparent that the mere appointment of this Congress did not make the people of all the colonies "one people,"nor a "nation de facto."All the colonies did not unite in the appointment,neither as colonies nor by any portion of their people acting in their primary assemblies,as has already been shown.The colonies were not independent,and had not even resolved to declare themselves so at any future time.On the contrary,they were extremely desirous to preserve and continue their connection with the parent country,and Congress was charged with the duty of devising such measures as would enable them to do so,without involving a surrender of their rights as British subjects.It is equally clear that the powers,with which Congress was clothed,did not flow from,nor constitute "one people,"or "nation de facto,"and that that body was not "a general or national government,"nor a government of any kind what ever.The existence of such government was absolutely inconsistent with the allegiance which the colonies still acknowledged to the British Crown.Judge Story,himself informs us,in a passage already quoted,that they had no power to form such government,nor to enter into "any league or treaty among themselves."
Indeed,Congress did not claim any legislative power whatever,nor could it have done so consistently with the political relations which the colonies still acknowledged and desired to preserve.Its acts were in the form of resolutions,and not in the form of laws;it recommended to its constituents whatever it believed to be for their advantage,but it commanded nothing.
Each colony,and the people thereof,were at perfect liberty to act upon such recommendation or not,as they might think proper.6
On the 22nd October,1774,this Congress dissolved itself,having recommended to the several colonies to appoint delegates to another Congress,to be held in Philadelphia in the following May.Accordingly delegates were chosen,as they had been chosen to the preceding Congress,each colony and the people thereof acting for themselves,and by themselves;
and the delegates thus chosen were clothed with substantially the same powers,for precisely the same objects,as in the former Congress.Indeed,it could not have been otherwise;for the relations of the colonies were still unchanged,and any measure establishing "a general or national government,"
or uniting the colonies so as to constitute them "a nation de facto,"would have been an act of open rebellion,and would have severed at once all the ties which bound them to the mother country,and which they were still anxious to preserve.New York was represented in this Congress precisely as she had been in the former one,that is,by delegates chosen by a part of her people;for the royal party was so strong in that colony,that it would have been impossible to obtain from the legislature an expression of approbation of any measure of resistance to British authority.The accession of Georgia to the general association was not made known till the 20th of July,and her delegates did not take their seats till the 13th of September.In the meantime Congress had proceeded in the discharge of its duties,and some of its most important acts,and among the rest the appointment of a commander-in-chief of their armies,were performed while these two colonies were unrepresented.Its acts,like those of the former Congress,were in the form of resolution and recommendation;for as it still held out the hope of reconciliation with the parent country,it did not venture to assume the function of authoritative legislation.It continued to hold this attitude and to act in this mode till the 4th of July,1776,when it declared that the colonies there represented (including New York,which had acceded after the Battle of Lexington),were,and of right ought to be,free and independent States.7
It is to be remarked,that no new powers were conferred on Congress after the Declaration of Independence.Strictly speaking,they had no authority to make that Declaration.They were not appointed for any such purpose,but precisely the reverse;and although some of them were expressly authorized to agree to it,yet others were not.Indeed,we are informed by Mr.Jefferson,that the Declaration was opposed by some of the firmest patriots of the body,and among the rest,by R.R.Livingston,Dickenson,Wilson,and E.
Rutlege,on the ground that it was premature;that the people of New York,New Jersey,Maryland and Delaware were not yet ripe for it,but would soon unite with the rest,if not indiscreetly urged.In entering upon so bold a step,Congress acted precisely as they did in all other cases,in the name of the States whose representatives they were,and with a full reliance that those States would confirm whatever they might do for the general good.They were,strictly,agents or ministers of independent States,acting each under the authority and instructions of his own,State,and having no power whatever,except what these instructions conferred.The States themselves were not bound by the resolves of Congress,except so far as they respectively authorized their own delegates to bind them.There was no original grant of powers to that body,except for deliberation and advisement;
there was no constitution,no law,no agreement,to which they could refer,in order to ascertain the extent of their powers.The members did not all act under the same instructions,nor with the same extent of authority.
The different States gave different instructions,each according to its own views of right and policy,and without reference to any general scheme to which they were all bound to conform.Congress had in fact no power of government at all,nor had it that character of permanency which is implied in the idea of government.It could not pass an obligatory law,nor devise an obligatory sanction,by virtue of any inherent power in itself.
