Was Honest Abe Lincoln really honest about state sovereignty when he claimed the original thirteen states never independently existed outside the context of national union?
By 1776, thirteen North American British colonies determined that political union with Great Britain was no longer feasible. Thomas Paine reflected the attitude of many colonists (certainly not all) when he wrote in his widely popular political tract Common Sense: “The blood of the slain, the weeping voice of nature cries, ‘Tis Time to Part.’”[i]
Independence was now no longer that unspoken, unthinkable proposition that was to be avoided at all costs. Initially, delegates of the colonies agreed to meet together as a congress[1] in 1774 to address their mutual concerns with Great Britain. By 1775, the conflict with Great Britain had become violent with military confrontations in Lexington and Concord, Massachusetts. It was only a matter of time before Congress confronted a formal separation from Great Britain.
Significantly, at the time independence became a foregone conclusion, the sovereignty possessed by the individual colonies –soon to be states– was not apparently a matter of great dispute among the delegates to the Continental Congress. Apparent from the Declaration of Independence itself and the debates of the Congressional delegates, it was clear that although the colonies may have declared their independence at the same time, each of the thirteen American colonies were separating individually with the intent of becoming independent nation-states vested with full sovereign authority.
In other words, mutually declaring independence from Great Britain was not tantamount to forming a new unified nation that we know today at the United States of America. Rather, the People within the recognized geographical boundaries of each colony, through their delegates in the Continental Congress, dissolved their allegiance to Great Britain without dissolving their relationship to each other. But, what was that relationship?
Abe’s Rejection of State Sovereignty
The separate and complete sovereignty of the original thirteen American states upon declaring independence has not been a conclusion reached without dispute. It was a key question underlying the disagreement between the North and South leading up to the Civil War. Abraham Lincoln was an outspoken critic of this view. While attempting to persuade Congress to fund war operations in a special session message to Congress in 1861, he stated that “the Union is older than any of the States, and, in fact, it created them as States.”[ii]
Referring to the notion that the individual states were independent and sovereign at their inception as a “sophism,” and using very strong language to combat the “state’s rights” argument, Lincoln stated in relevant part:
“Having never been States, either in substance or in name, outside of the Union, whence this magical omnipotence of “State rights,” asserting a claim of power to lawfully destroy the Union itself? Much is said about the “sovereignty” of the States, but the word even is not in the National Constitution, nor, as is believed, in any of the State constitutions. What is a “sovereignty” in the political sense of the term? Would it be far wrong to define it “a political community without a political superior”? Tested by this, no one of our States, except Texas, ever was a sovereignty; and even Texas gave up the character on coming into the Union, by which act she acknowledged the Constitution of the United States and the laws and treaties of the United States made in pursuance of the Constitution to be for her the supreme law of the land. The States have their status in the Union, and they have no other legal status.”[iii]
He certainly was not pulling any punches when he discussed the “magical” omnipotence of state rights, but there is good reason to believe the Southern argument was more than pure trickery. Perhaps it was really Lincoln giving Congress the sleight of hand?
Although Lincoln’s argument was certainly a convenient one for him to make at the time when the Union desperately needed funds to wage the Civil War, the historical and legal facts overwhelmingly do not support this position. It is hard to imagine Lincoln was so ignorant as to the legal foundations of the United States—or was he just being a politician?
The Declaration of Independence and Treaty of Paris
As historian Forrest McDonald persuasively argued, the People of the individual colonies did not return to a Lockean state of nature upon declaring independence, the state legislatures remained intact, and delegates to the Continental Congress were only agents of the states and could not undermine the authority of their principals—i.e. the states.[iv] But, what proof of this assertion exists?
The Declaration of Independence itself provided the best evidence that upon declaring independence the colonies intended to become independent, sovereign-states—not one national, juridical entity.
While using the plural form when referring to the newly created states as “they” and “them,” Richard Henry Lee of Virginia introduced a resolution to the Second Continental Congress on June 7, 1776. He declared:
“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.”[v]
The purpose of issuing the Declaration of Independence was clearly set forth in the Declaration itself:
“When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”[vi]
Thus, the Declaration’s purpose was not to form or create a new unified government. The purpose was simply to declare to Great Britain and the rest of the world the independent sovereign status of each of the thirteen British colonies. If there was any question about this, the final paragraph of the Declaration should have put the issue to rest.
A committee of five individuals was appointed to draft a declaration of independence: Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman, and Robert Livingston. Although Jefferson’s original draft was revised a number of times, the language actually declaring independence remained essentially unchanged from draft to draft:
“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; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do.”[vii]
The language Jefferson used, and which Congress finally adopted, not only declared independence from Great Britain but specifically described the former colonies as “free and independent states”. The clause also described what “free and independent states” entailed—listing the powers that each state possessed upon independence. The power to levy war, conclude peace, contract alliances and regulate commerce all were attributes of a full sovereign power; fully consistent with the notion of sovereignty as understood by the political philosophers at the time.
Often overlooked, but not of lesser importance, is that after the colonies won their war against the British and secured legal recognition of their independence, Great Britain admitted their status as thirteen independent sovereign states in the Treat of Paris signed in 1783. The first article of this treaty plainly sets forth the identity of the parties to the treaty:
“His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.”[viii]
Notice the legal language used here refers to the United States in the plural form, not as a singular nation, and names each state individually. This setting forth the names of each of each of the thirteen states would not be necessary if the United States existed as a single, independent sovereign unit. Keep in mind that at this point, however, that the individual states had entered into an agreement among themselves to act in unison (as a confederation) when it came to dealing with foreign nations, which explains why the reference to the “United States” continued to be used throughout the treaty.
It certainly was easier to refer to all thirteen states as the “United States of America” rather than repeatedly listing all the colonies by name for purposes of the legal language in the treaty, but more importantly, they indeed were a true confederation under the Articles of Confederation ratified in 1781—yet, maintained their individual sovereign status.
Even future Supreme Court Chief Justice, and Jefferson’s political enemy, John Marshall, would later agree that upon declaring their independence, the colonies became thirteen free, and sovereign, independent states. In the Gibbons v. Ogden case, Marshall declared that the states prior to the ratification of the Constitution “were sovereign, were completely independent, and were connected with each other only by a league.”[ix]
Conclusion
Thus, although the thirteen American colonies declared their independence from Great Britain at the same time, and did so through the Continental Congress, what resulted, at least according to the Declaration of Independence, was not one unified nation of Americans, but thirteen, independent sovereign states vested with full sovereign authority and rights. Even after the ratification of the Articles of Confederation, it was understood not only by the people of the new states but the rest of the world that the newly minted thirteen nation-states maintained their individual sovereign legal status, even upon securing their legal independence from the Crown.
How could Lincoln, a trained lawyer himself, get this so wrong? Did he make an honest mistake when making his argument in support of the Union, or was Abe not so honest?
[1] According to Thomas Sheridan’s 1789 A Complete Dictionary of the English Language, the term “congress” was defined in the eighteenth century as “an appointed meeting for settlement of affairs between different nations.”
[i] Schweikart and Allen, A Patriot’s History, 79-80.
[ii] For the full text of the speech see Abraham Lincoln, “Special Session Message, July 4, 1861,” in A Compilation of the Messages and Papers of the Presidents, vol. 7, ed. James D. Richardson (New York: Bureau of National Literature, 1897), pp. 3227-29, 3231-32. Available at http://www.fordham.edu/halsall/mod/1861lincoln-special.asp.
[iii] Ibid.
[iv] Forrest McDonald, States’ Rights and the Union (Lawrence: University Press of Kansas, 2000), 9.
[v] Journals of the Continental Congress, 1774-1789, ed. Worthington C. Ford et al. (Washington, D.C., 1904-37), 5:425
[vi] “Declaration of Independence”, The Avalon Project, http://avalon.law.yale.edu/18th_century/declare.asp.
[vii] Ibid; for a history of the drafting of the Declaration of Independence see also Carl L. Becker, The Declaration of Independence: A Study in the History of Political Ideas, Vintage Books Ed. (New York: Random House, 1958),135-193.
[viii] “The Paris Peace Treaty of September 30, 1783,” The Avalon Project, https://avalon.law.yale.edu/18th_century/paris.asp
[ix] Gibbons v. Ogden, 22 U.S. 1, 187 (1824).
