EXPLANATORY NOTES.

by

C. CHAUNCEY BURR.

--------------------------------------------------------------------------------

NEW YORK:

VAN EVRIE, HORTON & CO.,

No. 162 NASSAU STREET.

1868.

--------------------------------------------------------------------------------

Initially rendered into HTML by Thom Anderson, HTML revised and text version by Jon Roland of the Constitution Society.

--------------------------------------------------------------------------------

Entered according to Act of Congress, in the year 1868 by

VAN EVRIE, HORTON & Co.,

In the Clerk's office of the District Court of the United States, for

the Southern District of New York

INTRODUCTION BY THE EDITOR.

The author of this volume was considered one of the ablest legal minds in the United States. He studied law under William Wirt, the eminent author of the Life of Patrick Henry, and his practiced profession with great success from 1810 to 1824. After an interval of retirement, he held a high judicial position as Judge of the General Court of Virginia, from 1826 to 1841; at which time he entered Mr. Tyler's Cabinet as Secretary of the Navy. On Mr. Webster's retirement, in the spring of 1843, Judge Upshur succeeded him as Secretary of State. On the 28th of February 1844, the explosion of the great gun ("Peacemaker") on board the steamer Princeton killed this eminent jurist and statesman. His reputation in private life was as spotless as his public fame was exalted and unrivaled.

This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to invalidate the soundness of its reasoning. As a law writer, Judge Story has been regarded as one of the ablest of his school, which was that of the straightest type of "Federalists" of the elder Adams's party. His commentaries are a good deal marred with the peculiar partisan doctrines of that school of politicians; indeed, they may be looked upon as a plea for the severe political principles which ruled the administration of President John Adams. The Alien and Sedition Laws, which have long since passed into a by-word of reproach, will still find abundant support in Judge Story's Commentaries. He perpetually insisted on construing the Constitution from the standpoint of that small and defeated party in the Federal Convention which wanted to form a government on the model of the English monarchy in everything but the name. This party was powerful in respectability and talents, but weak or few in numbers — and after it was so signally defeated in the Constitutional Convention, it still held on to its monarchical principles, and sought to invest the new government with kingly powers, notwithstanding the Constitution had been constructed upon principles entirely opposite to its doctrine. In a letter of U. S. Senator John Langdon, of New Hampshire to Samuel Ringgold, of the date of October 10th, 1800, he says: "Mr. Adams certainly expressed himself that he hoped, or expected to see the day when Mr. Taylor, and his friend, Mr. Giles, would be convinced that the people of America would never be happy without a hereditary Chief Magistrate and Senate or at least for life." Mr. Rose, a Senator from Pennsylvania, and a friend of the Adams party, left the table of Mr. Hollines, of Philadelphia, when "the Constitution of the United States" was given as a toast. John Wood, the historian of the time, speaking of the principles of the Federalists, says: "They bestowed unbounded panegyrics upon Alexander Hamilton, because this gentleman acted the part of Prime Minister to the President. They thought the administration and the government ought to be confounded and identified; that the administration was the government, and the government the administration; and that the people ought to bow in tame submission to its whim and caprice." Writing of Mr. Adams, Jefferson says: "Mr. Adams had originally been a Republican. The glare of royalty and nobility, during his mission in England, had made him believe their fascination to be a necessary ingredient in government. His book on the American Constitution had made known his political bias. He was taken up by the monarchical Federalists in his absence, and was by them, made to believe that the general disposition of our citizens was favorable to monarchy."

At a dinner given by Mr. Jefferson, when he was a member of Washington's Cabinet, he declares that, "after dinner, Mr. Adams said: 'Purge the British Constitution of its corruption, and give to its popular branch equality of representation, and it would be the most perfect Constitution ever devised by the wit of man.' Hamilton replied: 'Purge it of its corruption, and give to its popular branch equality of representation, and it would become then an impracticable government. As it stands at present, with all its supposed defects, it is the most perfect government that ever existed.'" Mr. Jefferson adds: "Hamilton was not only a monarchist, but for a monarchy bottomed on corruption." The Federalists having a majority in Congress, passed an act to continue in force during the administration of Mr. Adams, declaring that "if any person should write or publish, or cause to be published, any libel against the Government of the United States, or either House of Congress, or against the President, he shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." A great many editors, and other gentlemen, were imprisoned under this act. Even to ridicule the President was pronounced by the corrupt partisan judges a violation of the law. Men were beaten almost to death for neglecting to pull off their hats when the President was passing, and every man who did not instantly prostrate himself before the ensigns of Federal royalty, was denounced as the enemy of his country. The following letter, addressed to President John Adams by the merchants of Boston, shows to what lengths that party had dragged the public mind in the direction of monarchy:

"We, the subscribers, inhabitants and citizens of Boston, in the State of Massachusetts, deeply impressed with the alarming situation of our country, and convinced of the necessity of uniting with firmness at this interesting crisis, beg leave to express to you, the Chief Magistrate and supreme ruler over the United States, our fullest approbation of all the measures, external and internal, you have pleased to adopt, under direction of divine authority. We beg leave also to express the high and elevated opinion we entertain of your talents, your virtue, your wisdom and your prudence; and our fixed resolution to support, at the risk of our lives and fortunes, such measures as you may determine upon to be necessary for promoting and securing the honor and happiness of America."

Any one can see that men who could address the President after this fashion, had a great deal less respect for the restraints and limitations of a written Constitution, than for the will and force of individual power. That was the drift of a certain portion of public opinion in America at that time. But the tyrannical excesses of that party soon brought it into such odium, that it was driven from power by the election of Mr. Jefferson to the Presidency. Though defeated, its partisans never ceased to labor to drag the Constitution away from its Democratic foundations, by giving the Constitution a construction utterly antagonistic to the intentions of the Convention which framed and of the States which adopted it. The great vice of the Federalists consisted in desiring to clothe the Federal Government with almost monarchical powers; whereas the States had carefully and resolutely reserved the great mass of political power to themselves. The powers which they delegated to the Federal Government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no State imagined it was surrendering when it, adopted the Constitution. Mr. Madison dwelt with great force upon the fact that "a delegated is not a surrendered power." The States surrendered no powers to the Federal Government. They only delegated them. The powers of the States are original. Those of the Federal Government are only derived and secondary; and they were delegated, not for the purpose of aggrandizing the Federal Government, but for the sole purpose of protecting the rights and sovereignty of "the several States." The Federal Government was formed by the States for their own benefit. The Federal Government is simply an agency, commissioned by the "several States" for their own convenience and safety. In the Convention of Virginia, Patrick Henry said: "Liberty, sir, is the primary object. Liberty, the greatest of all earthly blessings — give us that precious jewel, and you may take away everything else." And, with an eloquence more powerful than that which shook the throne of Macedon, he demonstrated that the battles of the Revolution were fought, not to make "a great and mighty empire," but "for liberty." It was for liberty — for the liberty of the people of the "several States" that the Federal Government was established. Not for the kingly grandeur and power of government, but for the happiness, safety and liberty of "the people of the several States." Nothing could possibly be stronger than the determination pervading the mind of the Federal Convention to sacrifice no iota of the essential sovereignty of the States in the formation of the general Union. This feeling was most happily expressed by Chief Justice Ellsworth, of Connecticut, in, the Convention that framed our Constitution, in the following words:

"I want domestic happiness as well as general security. A General Government will never grant me this, as it cannot know my wants, nor relieve my distress. My State is only as one out of thirteen. Can they, the General Government, gratify my wishes? My happiness depends as much on the existence of my State Government as a new-born infant depends upon its mother for nourishment."

In the Convention of Massachusetts, Fisher Ames said:

"A consolidation of the States would subvert the new Constitution, and against which this article is our best security. Too much provision cannot be made against consolidation. The State Governments represent the wishes and feelings, and local interests of the people. They are the safeguard and ornament of the Constitution; they will protract the period of our liberties; they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights."

Such were the views and sentiments of the men who framed and who adopted the Federal Constitution. But Judge Story belonged to another school of politicians, and his Commentaries upon the Constitution were written in the interests of the Consolidationists, who have ever insisted on giving that instrument an interpretation in harmony with their wishes and ideas. This review of Judge Upshur, however, does not leave a single point of the Federalistic heresy unanswered. It will ever stand as a text-book of the true theory of our government. We are confident that no book has ever appeared in this country which so thoroughly meets the demands of the present hour. With this book in his hand, the Democratic statesman or orator is armed at every point against the sophistries of the foes of State sovereignty and self-government. There is no vital point which it does not discuss and settle upon the basis of invulnerable truth.

The Notes which we have added, we hope, will be found useful to the unprofessional reader. They will show that the authors reasoning is confirmed by our Constitutional history and by the early decisions of the Supreme Court.

In every instance, our own Notes are distinguished from those of the author by our initials —

" C. C. B."

PREFACE BY THE AUTHOR.

The book to which the following pages relate has been for several years before the public. It has been reviewed by some of the principal periodicals of the country, and recommended in the strongest terms to public favor. I have no disposition to detract from its merits as a valuable compendium of historical facts, or as presenting just views of the Constitution in many respects. My attention has been directed to its political principles alone, and my sole purpose has been to inquire into the correctness of those principles, so far as they relate to the true nature and character of our Federal Government,

It may well excite surprise, that so elaborate a work as this of Judge Story, and one so well calculated to influence public opinion, should have remained so long unnoticed by those who do not concur in the author's views. No one can regret this circumstance, more than I do; for I would willingly have devolved upon abler hands the task which I now have undertaken. I offer no apology for the manner in which that task has been performed. It is enough for me to say, that the reader, howsoever favorable his opinion of this essay may be will not be more sensible of its imperfections than I am. I know that the actual practice of the Federal Government for many years past, and the strong tendencies of public opinion in favor of federal power, forbid me to hope for a favorable reception, except from the very few who still cherish the principles which I have endeavored to reestablish.

The following essay was prepared about three years ago, with a view to its publication in one of our periodical reviews. Circumstances, which it is unnecessary to mention, prevented this from being done, and the work was laid aside and forgotten. My attention has been again called to it within a few weeks past, and I am now induced to give it to the public, under the hope that it may not be without its influence in directing the attention of those, who have not yet lost all interest in the subject, to the true principles of our constitution of government.

I do not claim the merit of originality. My conclusions are drawn from the authentic information of history, and from a train of reasoning, which will occur to every mind, on the facts which history discloses. My object will be answered, if even the few by whom these pages will probably be read shall be induced to re-examine, with a sincere desire after truth, the great principles upon which political parties in our country were once divided, but which there is much reason to fear are no longer respected, even if they be not wholly forgotten.

I do not offer this essay as a commentary on the Federal Constitution. Having proposed to myself but a single object, I have endeavored to compress my matter within as small a compass as possible, consistent with a due regard to clearness, and a proper reference to authorities, where authorities are relied on.

THE TRUE NATURE AND CHARACTER

OF OUR

FEDERAL GOVERNMENT.

CHAPTER I.

THE CHARACTER OF JUDGE STORY'S COMMENTARIES ON THE CONSTITUTION.

It came within the range of Judge Story's duties, as Dane Professor of Law in Harvard University, to expound and illustrate the Constitution of the United States. His lectures upon that subject have been abridged by himself, and published in a separate volume. Although the work is given to the public as an abridgment, it is nevertheless, as it professes to be, "a full analysis and exposition of the constitution of government of the United States and presents, in the opinion of the author himself, the "leading doctrines" of the original, "so far as they are necessary to a just understanding of the actual provisions of the Constitution." The author professes to have compiled it "for the use of colleges and high schools," but as it contains all the important historical facts, and all the leading reasons upon which his own opinions have been based, and as it has been prepared with elaborate care in other respects, we may reasonably suppose, without impeaching his modesty, that he expected it to be received as a complete work. It is, indeed, quite as full as any such work needs to be, for any purpose, except, perhaps, the very first lessons to the student of constitutional law. The politician and the jurist may consult it, with a certainty of finding all the prominent topics of the subject fully discussed.

A work presenting a proper analysis and correct views of the Constitution of the United States has long been a desideratum with the public. It is true that the last fifteen years have not been unfruitful in commentaries upon that instrument; such commentaries, however, as have, for the most part met a deserved fate, in immediate and total oblivion. Most of them have served only to throw ridicule upon the subject which they professed to illustrate. A few have appeared, however, of a much higher order, and bearing the stamp of talent, learning, and research. Among these, the work before us, and the Commentaries of Chief Justice Kent, hold the first rank. Both of these works are, as it is natural they should be, strongly tinctured with the political opinions of their respective authors; and as there is a perfect concurrence between them in this respect, their joint authority can scarcely fail to exert a strong influence upon public opinion. It is much to be regretted that some one, among the many who differ from them in their views of the Constitution, and who possess all the requisite qualifications for the task, should not have thought it necessary to vindicate his own peculiar tenets, in a work equally elaborate, and presenting just claims to public attention. The authority of great names is of such imposing weight, that mere reason and argument can rarely counterpoise it in the public mind; and its preponderance is not easily overcome, except by adding like authority to the weight of reason and argument, in the opposing scale. I hope it is not yet too late for this suggestion to have its effect upon those to whom it is addressed.

The first commentary upon the Constitution, the Federalist, is decidedly the best, which has yet appeared. The writers of that book were actors in all the interesting scenes of the period, and two of them were members of the convention which formed the Constitution. Added to this, their extensive information, their commanding talents, and their experience in great public affairs, qualified them, in a peculiar degree, for the task which they undertook. Nevertheless, their great object was to recommend the Constitution to the people, at a time when it was very uncertain whether they would adopt it or not; and hence their work, although it contains a very full and philosophical analysis of the subject, comes to us as a mere argument in support of a favorite measure, and, for that reason, does not always command our entire confidence. Besides, the Constitution was and its true character, which is to be learned only from its practical operation, could only be conjectured. Much has been developed, in the actual practice of the government, which no politician of that day could either have foreseen or imagined. New questions have arisen, not then anticipated, and difficulties and embarrassments, wholly unforeseen, have sprung from new events in the relation of the States to one another, and to the general government. Hence the Federalist cannot be relied on, as full and safe authority in all cases. It is, indeed, matter of just surprise, and affording the strongest proof of the profound wisdom and far-seeing sagacity of the authors of that work, that their views of the Constitution have been so often justified in the course of its practical operation. Still, however, it must be admitted that the Federalist is defective in some important particulars, and deficient in many more. The Constitution is much better understood at this day than at the time of its adoption. This is not true of the great principles of civil and political liberty, which lie, at the foundation of that instrument; but it is emphatically true of some of its provisions, which were considered at the time as comparatively unimportant, or so plain as not to be misunderstood, but which have been shown, by subsequent events, to be pregnant with the greatest difficulties, and to exert the most important influence upon the whole character of the government. Contemporary expositions of the Constitution, therefore, although they should be received as authority in some cases, and may enlighten our judgments in most others, cannot be regarded as safe guides, by the expounder of that instrument at this day. The subject demands our attention now as strongly as it did before the Federalist was written.1

It is not surprising, therefore, that the work now under consideration should have been hailed with pleasure and received with every favorable disposition. Judge Story fills a high station in the judiciary of the United States, and has acquired a character, for talents and learning, which ensures respect to whatever he may publish under his own name. His duty, as a Judge of the Supreme Court, has demanded of him frequent investigations of the nicest questions of constitutional law; and his long service in that capacity has probably brought under his review every provision of that instrument in regard to which any difference of opinion has prevailed. Assisted as he has been by the arguments of the ablest counsel, and by the joint deliberations of the other judges of the court, it would be indeed wonderful, if he should hazard his well-earned reputation as a jurist, upon any hasty or unweighed opinion, upon subjects so grave and important. He has also been an attentive observer of political events, and although by no means obtrusive in politics, has yet a political character, scarcely less distinguished than his character as a jurist. To all, these claims to public attention and respect, may be added a reputation for laborious research, and for calm and temperate thinking. A work on the Constitution of the United States, emanating from such a source, cannot fail to exert a strong influence upon public opinion, and it is, therefore, peculiarly important that its real character should be understood. Whatever may be the cast of its political opinions, it can scarcely fail to contain many valuable truths, and much information which will be found useful to all classes of readers. And, so far as its political opinions are concerned, it is of the highest importance to guard the public mind against the influence which its errors, if errors they be, may borrow from the mere authority of the distinguished name under which they are advanced.

The plan of the work before us is very judicious. In order to a correct understanding of the Constitution, it is absolutely necessary to understand the situation of the States before it was adopted. The author, acting upon this idea, distributes his work into three great divisions. "The first will embrace a sketch of the charters, constitutional history, and anterevolutionary jurisprudence of the Colonies. The second will embrace the constitutional history of the States, during the Revolution, and the rise, progress, decline, and fall of the Confederation. The third will embrace the history of the rise and adoption of the Constitution, and a full exposition of all its provisions, with the reasons on which they were respectively founded, the objections by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government, as may best enable the reader to estimate for himself, the true value of each." This plan is at once comprehensive and analytical. It embraces every topic necessary to a full understanding of the subject, while, at the same time, it presents them in the natural order of investigation. It displays a perfect acquaintance with the true nature of the subject, and promises every result which the reader can desire. The first part relates to a subject of the greatest interest to every American, and well worthy the study of philosophical enquirers, all over the world. There is not, within the whole range of history, an event more important, with reference to its effects upon the world at large, than the settlement of the American Colonies. It did not fall within the plan of our author to enquire very extensively, or very minutely, into the mere history of events which distinguished that extraordinary enterprise. So far as the first settlers may be regarded as actuated by avarice, by ambition, or by any other of the usual motives of the adventurer, their deeds belong to the province of the historian alone. We, however, must contemplate them in another and a higher character. A deep and solemn feeling of religion, and an attachment to, and an understanding of, the principles of civil liberty, far in advance of the age in which they lived, suggested to most of them the idea of seeking a new home and founding new institutions in the western world. To this spirit we are indebted for all that is free and liberal in our present political systems, it would be a work of very great interest, and altogether worthy of the political historian, to trace the great principles of our institutions back to their sources. Their origin would probably be discovered at a period much more remote than is generally supposed. We should derive from such a review much light in the interpretation of those parts of our systems as to which we have no precise rules in the language of our constitutions of government. It is to be regretted that Judge Story did not take this view of the subject. Although not strictly required by the plan of his work, it was, nevertheless, altogether consistent with it, and would have added much to its interest with the general reader. His sources of historical information were ample, and his habits and the character of his mind fitted him well for such an investigation, and for presenting the result in an analytical and philosophical form. He has chosen, however, to confine himself within much narrower limits. Yet, even within those limits, he has brought together a variety of historical facts of great interest, and has presented them in a condensed form, well calculated to make a lasting impression on the memory. The brief sketch which he has given of the settlement of the several colonies, and of the charters from which they derived their rights and powers as separate governments, contains much to enable us to understand fully the relation which they bore to one another and to the mother country. This is the true starting point in the investigation of those vexed questions of constitutional law which have so long divided political parties in the United States. It would seem almost impossible that any two opinions could exist upon the subject; and yet the historical facts, upon which alone all parties must rely, although well authenticated and comparatively recent, have not been understood by all men alike. Our author was well aware of the importance of settling this question at the threshold of his work. Many of the powers which have been claimed for the Federal Government, by the political party to which he belongs, depend upon a denial of that separate existence, and separate sovereignty and independence, which the opposing party has uniformly claimed for the States. It is, therefore, highly important to the correct settlement of this controversy, that we should ascertain the precise political condition of the several colonies prior to the Revolution. This will enable us to determine how far Judge Story has done justice to his subject, in the execution of the first part of his plan; and by tracing the colonies from their first establishment as such, through the various stages of their progress up to the adoption of the Federal Constitution, we shall be greatly aided in forming a correct opinion as to the true character of that instrument.

CHAPTER II.

THE NON-RELATION OF THE COLONIES TO EACH OTHER —

THEY WERE NOT ONE PEOPLE.

It appears to be a favorite object of Judge Story to impress upon the mind of the reader, at the very commencement of his work, the idea that the people of the several colonies were, as to some objects, which he has not explained, and to some extent which he has not defined, "one people." This is not only plainly inferable from the general scope of the book, but is expressly asserted in the following passage "But although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other. On the contrary, they were fellow-subjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other colony, and as a British subject he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by the general laws of the British empire, and could not be restrained or obstructed by colonial legislation. The remarks of Mr. Chief Justice Jay are equally just and striking: "All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him, and all the civil authority then existing or exercised here flowed from the head of the British empire. They were in a strict sense fellow-subjects and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connection which results from the mere circumstance of being governed by the same prince.'"

In this passage the author takes his ground distinctly and boldly. The first idea suggested by the perusal of it is, that he discerned very clearly the necessity of establishing his position, but did not discern quite so clearly by what process of reasoning he was to accomplish it. If the passage stood alone, it would be fair to suppose that he did not design to extend the idea of a unity among the people of the colonies beyond the several particulars which he has enumerated. Justice to him requires that we should suppose this; for, if it had been otherwise, he would scarcely have failed to support his opinion by pointing out some one of the "many purposes," for which the colonies were, in his view of them, "one people." The same may be said of Mr. Chief Justice Jay. He also has specified several particulars in which he supposed this unity to exist, and arrives at the conclusion, that the people of the several colonies were, "in a variety of respects, one people." In what respect they were "one," except those which he has enumerated, he does not say and of course it is fair to presume that he meant to rest the justness of his conclusion upon them alone. The historical facts stated by both of these gentlemen are truly stated; but it is surprising that it did not occur to such cool reasoners, that every one of them is the result of the relation between the colonies and the mother country, and not the result of the relation between the colonies themselves. Every British subject, whether born in England proper or in a colony, has a right to reside anywhere within the British realm; and this by the force of British laws. Such is the right of every Englishman, wherever he may be found. As to the right of the colonist to inherit lands by descent in any other colony than his own, Judge Story himself informs us that it belonged to him "as a British subject." That right, indeed, is in consequence of his allegiance. By the policy of the British constitution and laws, it is not permitted that the soil of her territory should belong to any from whom she cannot demand all the duties of allegiance. This allegiance is the same in all the colonies as it is in England proper and, wherever it exists, the correspondent right to own and inherit the soil attaches. The right to regulate commercial intercourse among her colonies belongs, of course, to the parent country, unless she relinquishes it by some act of her own; and no such act is shown in the present case. On the contrary, although that right was resisted for a time by some of the American colonies, it was fully yielded, as our author himself informs us, by all those of New England, and I am not informed that it was denied by any other. Indeed, the supremacy of Parliament, in most matters of legislation which concerned the colonies, was generally — nay, universally — admitted up to the very eve of the Revolution. It is true, the right to tax the colonies was denied, but this was upon a wholly different principle. It was the right of every British subject to be exempt from taxation, except by his own consent; and as the colonies were not, and from their local situation could not be, represented in Parliament, the right of that body to tax them was denied, upon a fundamental principle of English liberty. But the right of the mother country to regulate commerce among her colonies is of a different character, and it never was denied to England by her American colonies, so long as a hope of reconciliation remained to them. In like manner, the facts relied on by Mr. Jay, that "all people of this country were then subjects of the King of Great Britain, and owed allegiance to him" and that "all the civil authority then existing or exercised here flowed from the head of the British empire," are but the usual incidents of colonial dependence, and are by no means peculiar to the case he was considering. They do, indeed, prove a unity between all the colonies and the mother country, and show that these, taken altogether, are in the strictest sense of the terms, "one people"; but I am at a loss to perceive how they prove, that two or more parts or subdivisions of the same empire necessarily constitute "one people." If this be true of the colonies, it is equally true of any two or more geographical sections of England proper; for every one of the reasons assigned applies as strictly to this case as to that of the colonies. Any two countries may be "one people," or "a nation de facto," if they can be made so by the facts that their people are "subjects of the King of Great Britain, and owe allegiance to him," and that "all the civil authority exercised therein flows from the head of the British empire."

It is to be regretted that the author has not given us his own views of the sources from which these several rights and powers were derived. If they authorize his conclusion, that there was any sort of unity among the people of the several colonies, distinct from their common connection with the mother country, as parts of the same empire, it must be because they flowed from something in the relation betwixt the colonies themselves, and not from their common relation to the parent country. Nor is it enough that these rights and powers should, in point of fact, flow from the relation of the colonies to one another; they must be the necessary result of their political condition. Even admitting, then, that they would, under any state of circumstances, warrant the conclusion which the author has drawn from them, it does not follow that the conclusion is correctly drawn in the present instance. For aught that he has said to the contrary, the right of every colonist to inhabit and inherit lands in every colony, whether his own or not, may have been derived from positive compact and agreement among the colonies themselves; and this presupposes that they were distinct and separate, and not "one people." And so far as the rights of the mother country are concerned, they existed in the same form, and to the same extent, over every other colony of the empire. Did this make the people of all the colonies "one people?" If so, the people of Jamaica, the British East India possessions, and the Canadas are, for the very same reason, "one people" at this day. If a common allegiance to a common sovereign, and a common subordination to his jurisdiction, are sufficient to make the people of different countries "one people," it is not perceived (with all deference to Mr. Chief Justice Jay) why the people of Gaul, Britain, and Spain might not have been "one people," while Roman provinces, notwithstanding "the patriots" did not say so. The general relation between the colonies and the parent country is as well settled and understood as any other, and it is precisely the same in all cases, except where special consent and agreement may vary it. Whoever, therefore, would prove that any peculiar unity existed between the American colonies, is bound to show something in their charters, or some peculiarity in their condition, to exempt them from the general rule. Judge Story was too well acquainted with the state of the facts to make any such attempt in the present case. The Congress of the nine colonies, which assembled at New York, in October, 1765, declare that the colonists "owe the same allegiance to the Crown of Great Britain, that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain." "That the colonists are entitled to all the inherent rights and liberties of his [the King's] natural born subjects within the Kingdom of Great Britain," We have here an all-sufficient foundation of the right of the Crown to regulate commerce among the colonies, and of the right of the colonists to inhabit and to inherit land in each and all the colonies. They were nothing more than the ordinary rights and liabilities of every British subject; and, indeed, the most that the colonies ever contended for was an equality, in these respects, with the subjects born in England. The facts, therefore, upon which Judge Story's reasoning is founded, spring from a different source from that from which he is compelled to derive them, in order to support his conclusion.

So far as Judge Story's argument is concerned, the subject might be permitted to rest here. Indeed, one would be tempted to think, from the apparent carelessness and indifference with which the argument is urged, that he himself did not attach to it any particular importance. It is not his habit to dismiss grave matters with such light examination, nor does it consist with the character of his mind to be satisfied with reasoning which bears even a doubtful relation to his subject. Neither can it be supposed that he would be willing to rely on the simple ipse dixit of Chief Justice Jay, unsupported by argument, unsustained by any reference to historical facts, and wholly indefinite in extent and bearing. Why, then, was this passage written? As mere history, apart from its bearing on the Constitution of the United States, it is of no value in this work, and is wholly out of place. All doubts upon this subject will be removed in the progress of this examination. The great effort of Judge Story, throughout the entire work, is to establish the doctrine, that the Constitution of the United States is a government of "the people of the United States," as contradistinguished from the people of the several States; or, in other words, that it is a consolidated, and not a federative system. His construction of every contested federal power depends mainly upon this distinction; and hence the necessity of establishing a oneness among the people of the several colonies, prior to the Revolution. It may well excite our surprise, that a proposition so necessary to the principal design of the work, should be stated with so little precision, and dismissed with so little effort to sustain it by argument. One so well informed as Judge Story, of the state of political opinions in this country, could scarcely have supposed that it would be received as an admitted truth, requiring no examination. It enters too deeply into grave questions of Constitutional law, to be so summarily disposed of. We should not be content, therefore, with simply proving that Judge Story has assigned no sufficient reason for the opinion he has advanced. The subject demands of us the still farther proof that his opinion is, in fact, erroneous, and that it cannot be sustained by any other reasons.

In order to constitute "one people," in a political sense, of the inhabitants of different countries, some thing more is necessary than that they should owe a common allegiance to a common sovereign. Neither is it sufficient that, in some particulars, they are bound alike, by laws which that sovereign, may prescribe; nor does the question depend on geographical relations. The inhabitants of different islands may be one people, and those of contiguous countries may be, as we know they in fact are, different nations. By the term "people," as here used, we do not mean merely a number of persons. We mean by it a political corporation, the members of which owe a common allegiance to a common sovereignty, and do not owe any allegiance which is not common; who are bound by no laws except such as that sovereignty may prescribe; who owe to one another reciprocal obligations; who possess common political interests; who are liable to common political duties; and who can exert no sovereign power except in the name of the whole. Anything short of this, would be an imperfect definition of that political corporation which we call a "people."

Tested by this definition, the people of the American colonies were, in no conceivable sense, "one people." They owed, indeed, allegiance to the British King, as the head of each colonial government, and as forming a part thereof; but this allegiance was exclusive, in each colony, to its own government, and, consequently, to the King as the head thereof, and was not a common allegiance of the people of all the colonies, to a common head.2 These 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 were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections; no influence nor control in its municipal government; no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever; they were not known as "one people" in any one function of government. Although they were all, alike, dependencies of the British Crown, yet, even in the action of the parent country, in regard to them, they were recognized as separate and distinct. They were established at different times, and each under an authority from the Crown, which applied to itself alone. They were not even alike in their organization. Some were provincial, some proprietary, and some charter governments. Each derived its form of government from the particular instrument establishing it, or from assumptions of power acquiesced in by the Crown, without any connection with, or relation to, any other. They stood upon the same footing, in every respect, with other British colonies, with nothing to distinguish their relation either to the parent country or to one another. The charter of any one of them might have been destroyed, without in any manner affecting the rest. In point of fact, the charters of nearly all of them were altered, from time to time, and the whole character of their government changed. These changes were made in each colony for itself alone, sometimes by its own action, sometimes by the power and authority of the Crown; but never by the joint agency of any other colony, and never with reference to the wishes or demands of any other colony. Thus they were separate and distinct in their creation; separate and distinct in the changes and modifications of their governments, which were made from time to time; separate and distinct in political functions, in political rights, and in political duties.

The provincial government of Virginia was the first established. The people of Virginia owed allegiance to the British King, as the head of their own local government. The authority of that government was confined within certain geographical limits, known as Virginia, and all who lived within those limits were "one people." When the colony of Plymouth was subsequently settled, were the people of that colony "one" with the people of Virginia? When, long afterwards, the proprietary government of Pennsylvania was established, were the followers of William Penn "one" with the people of Plymouth and Virginia? If so, to which government was their allegiance due? Virginia had a government of her own, and Massachusetts a government of her own. The people of Pennsylvania could not be equally bound by the laws of all three governments, because those laws might happen to conflict; they could not owe the duties of citizenship to all of them alike, because they might stand in hostile relations to one another. Either, then, the government of Virginia, which originally extended over the whole territory, continued to be supreme therein, (subject only to its dependence on the British Crown), or else its supremacy was yielded to the new government. Every one knows that this last was the case; that within the territory of the new government the authority of that government alone prevailed. How then could the people of this new government of Pennsylvania be said to be "one" with the people of Virginia, when they were not citizens of Virginia, owed her no allegiance and no duty, and when their allegiance to another government might place them in the relation of enemies of Virginia?3

In farther illustration of this point, let us suppose that some one of the colonies had refused to unite in the Declaration of Independence, what relation would it then have held to the others? Not having disclaimed its allegiance to the British Crown, it would still have continued to be a British colony, subject to the authority of the parent country, in all respects as before. Could the other colonies have rightfully compelled it to unite with them in their revolutionary purposes, on the ground that it was part and parcel of the "one people," known as the people of the colonies? No such right was ever claimed, or dreamed of, and it will scarcely be contended for now, in the face of the known history of the time. Such recusant colony would have stood precisely as did the Canadas, and every other part of the British empire. The colonies, which had declared war, would have considered its people as enemies, but would not have had a right to treat them as traitors, or as disobedient citizens resisting their authority. To what purpose, then, were the people of the colonies "one people," if, in a case so important to the common welfare, there was no right in all the people together, to coerce the members of their own community to the performance of a common duty?

It is thus apparent that the people of the colonies were not "one people," as to any purpose involving allegiance on the one hand, or protection on the other. What, then, I again ask, are the "many purposes" to which Judge Story alludes? It is certainly incumbent on him who asserts this identity, against the inferences most naturally deducible from the historical facts, to show at what time, by what process, and for what purposes, it was effected. He claims too much consideration for his personal authority, when he requires his readers to reject the plain information of history, in favor of his bare assertion. The charters of the colonies prove no identity between them, but the reverse; and it has already been shown that this identity is not the necessary result of their common relation to the mother country. By what other means they came to be "one," in any intelligible and political sense, it remains for Judge Story to explain.

If these views of the subject be not convincing, Judge Story himself has furnished proof, in all needful abundance, of the incorrectness of his own conclusion. He tells us that, "though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connection with each other. Each was independent of all the others; each, in a limited sense, was sovereign within its own territory. There was neither alliance nor confederacy between them. The assembly of one province could not make laws for another, nor confer privileges which were to be enjoyed or exercised in another, farther than they could be in any independent foreign States. They were known only as dependencies, and they followed the fate of the parent country, both in peace and war, without having assigned to them, in the intercourse or diplomacy of nations, any distinct or independent existence. They did not possess the power of forming any league or treaty among themselves, which would acquire an obligatory force, without the assent of the parent State. And though their mutual wants and necessities often induced them to associate for common purposes of defense, these confederacies were of a casual and temporary nature, and were allowed as an indulgence, rather than as a right. They made several efforts to procure the establishment of some general superintending government over them all; but their own difference of opinion, as well as the jealousy of the Crown, made these efforts abortive."

The English language affords no terms stronger than those which are here used to convey the idea of separateness, distinctness, and independence, among the colonies. No commentary could make the description plainer, or more full and complete. The unity, contended for by Judge Story, nowhere appears, but is distinctly disaffirmed in every sentence. The colonies were not only distinct in their creation, and in the powers and faculties of their governments, but there was not even "an alliance or confederacy between them." They had "no general superintending government over them all," and tried in vain to establish one. Each was "independent of all the others," having its own legislature, and without power to confer either right or privilege beyond its own territory. "Each, in a limited sense, was sovereign within its own territory"; and to sum up all, in a single sentence, "they had no direct political connection with each other!" The condition of the colonies was, indeed, anomalous, if Judge Story's view of it be correct. They presented the singular spectacle of "one people," or political corporation, the members of which had "no direct political connection with each other," and who had not the power to form such connection, even "by league or treaty among themselves."

This brief review will, it is believed, be sufficient to convince the reader that Judge Story has greatly mistaken the real condition and relation of the colonies, in supposing that they formed "one people," in any sense, or for any purpose whatever. He is entitled to credit, however, for the candor with which he has stated the historical facts. Apart from all other sources of information, his book affords to every reader abundant materials for the formation of his own opinion, and for enabling him to decide satisfactorily whether Judge Story's inferences from the facts, which he himself has stated, be warranted by them or not.

CHAPTER III.

RELATION OF THE COLONIES TO EACH OTHER DURING THE REVOLUTION —

THEY WERE NOT THEN ONE PEOPLE.

In the execution of the second division of his plan, very little was required of Judge Story, either as a historian or a commentator. Accordingly, he has alluded but slightly to the condition of the colonies during the existence of the revolutionary government, and has sketched with great rapidity, yet sufficiently in detail, the rise, decline and fall of the Confederation. Even here, however, he has fallen into some errors, and has ventured to express decisive and important opinions, without due warrant. The desire to make "the people of the United States" one consolidated nation is so strong and predominant, that it breaks forth, often uncalled for, in every part of his work. He tells us that the first Congress of the Revolution was "a general or a national government"; that it "was organized under the auspices and with the consent of the people, acting directly in their primary sovereign capacity," and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies. He acknowledges that the powers of this Congress were but ill-defined; that many of them were exercised by mere usurpation, and were acquiesced in by the people, only from the confidence reposed in the wisdom and patriotism of its members, and because there was no proper opportunity, during the presence of the war, to raise nice questions of the powers of government. And yet he infers, from the exercise of powers thus ill-defined, and, in great part, usurped, that "from the moment of the Declaration of Independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto," &c.

A very slight attention to the history of the times will place this subject in its true light. The colonies complained of oppressions from the mother country, and were anxious to devise some means by which their grievances might be redressed. These grievances were common to all of them; for England made no discrimination between them in the general course of her colonial policy. Their rights, as British subjects, had never been well defined; and some of the most important of these rights, as asserted by themselves, had been denied by the British Crown. As early as 1765 a majority of the colonies had met together in congress, or convention, in New York, for the purpose of deliberating on these grave matters of common concern and they then made a formal declaration of what they considered their rights, as colonists and British subjects. This measure, however, led to no redress of their grievances. On the contrary, the subsequent measures of the British Government gave new and just causes of complaint; so that, in 1774, it was deemed necessary that the colonies should again meet together, in order to consult upon their general condition, and provide for the safety of their common rights. Hence the Congress which met at Carpenters' Hall, in Philadelphia, on the 5th of September, 1774. It consisted of delegates from New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut from the city and county of New York, and other counties in the province of New York, New Jersey, Pennsylvania, New Castle, Kent, and Sussex in Delaware, Maryland, Virginia, and South Carolina. North Carolina was not represented until the 14th September, and Georgia not at all. It is also apparent that New York was not represented as a colony, but only through certain portions of her people;4 in like manner, Lyman Hall was admitted to his seat, in the succeeding Congress, as a delegate from the parish of St. John's, in Georgia, although he declined to vote on any question requiring a majority of the colonies to carry it, because he was not the representative of a colony. This Congress passed a variety of important resolutions, between September, 1774, and the 22nd October, in the same year; during all which time Georgia was not represented at all; for even the parish of St. John's did not appoint a representative till May, 1775. In point of fact, the Congress was a deliberative and advisory body, and nothing more; and, for this reason, it was not deemed important, or, at least, not indispensable, that all the colonies should be represented, since the resolutions of Congress had no obligatory force whatever. It was appointed for the sole purpose of taking into consideration the general condition of the colonies, and of devising and recommending proper measures for the security of their rights and interests. For these objects no precise powers and instructions were necessary, and beyond them none were given. Neither does it appear that any precise time was assigned for the duration of Congress. The duty with which it was charged was extremely simple; and it was taken for granted that it would dissolve itself as soon as the duty should be performed.5

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. It was, as already remarked, precisely the same body after the Declaration of Independence as before. As it was not then a government, and could not establish any new or valid relations between the colonies, so long as they acknowledged themselves dependencies of the British Crown, they certainly could not do so after the Declaration of Independence, without some new grant of power. The dependent colonies had then become independent States; their political condition and relations were necessarily changed by that circumstance; the deliberative and advisory body, through whom they had consulted together as colonies, was functus officio; the authority which appointed them had ceased to exist, or was suspended by a higher authority. Everything which they did, after this period and before the Articles of Confederation, was without any other right or authority than what was derived from the mere consent and acquiescence of the several States. In the ordinary business of that government de facto, which the occasion had called into existence, they did whatever the public interest seemed to require, upon the secure reliance that their acts would be approved and confirmed. In other cases, however, they called for specific grants of power; and in such cases, each representative applied to his own State alone, and not to any other State or people. Indeed, as they were called into existence by the colonies in 1775, and as they continued in existence, without any new election or new grant of power, it is difficult to perceive how they could form a "general or national government, organized by the people." They were elected by subjects of the King of England; subjects who had no right, as they themselves admitted, to establish any government whatever; and when those subjects became citizens of independent States, they gave no instructions to est