These are two examples typical of the way in which the English colonists, for the first hundred years, largely governed themselves by legislators chosen from among themselves. In this manner, while legally “subjects” of their European government, these Americans were actually “citizens” of their respective communities, actually governed in their individual lives and liberties by governments which derived all their powers of government from these “citizens.” In this manner, through the best teacher in the world, personal experience, they learned the vital difference between the relation of “subject” and “citizen” to governments. Later, the echo of that education was heard from Lincoln when he pleaded that government of the people, by the people and for them should not perish from the earth.
As early as 1754 these Americans began to feel the first real burden of their legal status as “subjects.” Their community wealth was beginning to attract the attention of the world. As a result, the legal Government awoke to the fact of their existence and of its own omnipotent ability to levy upon that wealth. The Americans, for more than a century educated in actual self-government, quickly showed the result of that education to the accurate knowledge that no government can have any just power except by the consent or grant of those to be governed by the exercise of such power. As far back as 1754, deputies of the various American colonies, where human beings had educated themselves to be free men, assembled at Albany in an endeavor to propose some compromise by which the American people would be enabled to preserve their human freedom against unjust interference by the Westminster Legislature. We are all familiar with the failure of that endeavor. We are all familiar with the successive steps of the continuing struggle between “subjects,” educated to be “citizens,” and an omnipotent government, unshaken in its purpose to make their actual status the same as their legal one.
When the year 1776 dawned, these Americans were still “subjects” under the law of the British Empire. They were, however, “subjects” in open rebellion against their government, justifying their rebellion on the basic American legal principle that every just power, even of a lawful government, must be derived from the consent or grant of the human beings themselves who are to be governed. On the memorable day in July of that year, despairing of any success in getting the British Government to recognize that basic principle, and asserting, for the first time in history, that they themselves were collectively the possessors of the supreme human will in and for America, they enacted the immortal Statute which we know as the Declaration of Independence.
The Declaration of Independence, which was the first political act of the American people in their independent sovereign capacity, lays the foundation of our national existence upon this broad proposition: “That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” (Justice Bradley’s opinion in Slaughter House Cases, 16 Wall. 36, at page 115.)
In this Statute, the American people clearly stated and definitely settled for all time the basic legal principle on which rests the validity of every constitutional article or statute law, which either directly interferes or vests ability in governments to interfere with an American in the exercise of his human freedom. There is nothing vague or ambiguous in their statement. The legal principle, so clearly stated and so definitely settled, is that no government in America can have any just power of direct interference with individual freedom unless such power be derived by direct grant from the Americans to be governed by the exercise of that power.
That Statute has never been repealed. The Americans of that generation, throughout all the momentous political battles of the next thirteen years, when they were making and unmaking nations and creating a federation of nations, and later subordinating it to a union of human beings, never failed to obey that Statute and to act in strict conformity to its basic American principle.
From the moment when that Statute was enacted by the supreme will in America, every American ceased forever to be a “subject” of any government or governments in the world. It was not until 1917 that any government or governments dared to act as if the American were still a “subject.”
In that summer of 1776, as the Americans were engaged with their former Government in a bitter and protracted war, they had little time or thought to give, as one people, to the constitution of a government best designed to secure to themselves the utmost possible measure of protected enjoyment of individual human freedom. In their rebellion, they had delegated the management of their common interests to a committee of deputies from each former colony, which committee was called the Congress. By the declared supreme will of the whole American people, the Americans in each former colony now constituted an independent nation, whose human members were now the “citizens” of that nation. Under the declared basic American legal principle, it was imperative that any government should get its every valid power from its own citizens. Knowing this, the Congress, almost immediately after the Declaration of July, made the formal suggestion to the citizens in each nation that they constitute a government for themselves and that they grant to such government ability to interfere with their own human freedom in such matters and to such extent as they deemed wise. The manner in which the citizens of each nation acted upon this suggestion should have stamped itself so irrevocably upon the mind of America as never to have been forgotten by any later generation of Americans. The citizens of those nations were of the “people who were better acquainted with the science of government than any other people in the world.” In each nation they were creating the very essence of security for a free people, namely, a government with limited ability to interfere with individual freedom, in some matters, so as to secure the greatest possible protected enjoyment of human liberty. They knew, as only human beings could know who were then offering their very lives to uphold the basic law of America, that such ability could never be validly given to any government by government itself, acting in any manner, but only by direct action and grant of those later to be governed by the exercise of that ability. What method did those citizens, so thoroughly educated in the basic principles of republican government, employ to secure the direct action of the human beings themselves in giving that ability of that kind to their respective governments? They acted upon the suggestion from the Congress of 1776, as Marshall later expressed it from the Bench of the Supreme Court, “in the only manner in which they can act safely, effectively and wisely on such a subject, by assembling in convention” in their respective states. Long before Marshall voiced judicial approval of this American method of direct action by the people themselves, in matters in which only the people themselves can validly act at all, Madison, in the famous Virginia convention of 1788, paid his tribute to these conventions of the people in each of the thirteen nations. This was the tribute of Madison: “Mr. Chairman, nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American Revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it.” (3 Ell. Deb. 616.)
Later herein there will be occasion to speak at greater length of this American method of direct action by the people themselves, through the deliberative conventions of deputies chosen by the people and from the people for that one purpose, giving to governments a limited ability to interfere with individual freedom. At this point, it is sufficient to say that, since 1789 and until 1917, no government in America ever claimed to have acquired ability of that kind except through the action of such a convention or conventions or through the direct voting of its citizens themselves for or against the grant of such ability.
If we again turn our minds upon those later days of 1776, we find that the Americans, through the direct action of the people in each independent nation, had become respectively citizens of what we now know as their respective states, each of which was then a free nation. Those thirteen nations were then allied in war. There did not yet exist even that political entity, later created and known as a federation of those nations. At that time and until quite some years after the Revolution had ended, there was no such thing as a “citizen” of America, because the America we know, the organized human membership society which is the American nation, did not yet exist. At that time and until the American nation did actually exist, as a political entity, there was no government in the world and no collection of governments in the world, which, on any subject or to any extent, could interfere generally with the individual freedom of Americans, as Americans. In each of the thirteen American nations, the citizens of that nation had vested their own government with some ability of that kind.