people of the United States," is made the foundation of the judgment of the supreme court in that case; yet, Judge Story, in delivering the opinion of the court, rests that position upon the preamble alone, and offers no other argument whatever to support it. And this too, although, in his own opinion, upon the right decision of that case rested "some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution of the United States." It is much to be regretted, that principles so important should be advanced as mere dogmas, either by our judges, or by the instructors of our youth.

In this case, as in others, however, we ought not to be satisfied with simply proving that the author's conclusions are not warranted by the facts and arguments from which he derives them. Justice to the subject requires a much more full and detailed examination of this important and fundamental question.

I have endeavoured to show, in the preceding part of this review, that the people of the several states, while in a colonial condition, were not "one people" in any political sense of the terins; that they did not become so by the declaration of independence, but that each state became a complete and perfect sovereignty within its own limits; that the revolutionary government, prior to the establishment of the confederation, was, emphatically, a government of the states as such, through congress, as their common agent and representative; and that, by the articles of confederation, each state expressly reserved its entire sovereignty and independence. In no one of the various conditions, through which we have hitherto traced them, do we perceive any feature of consolidation; but their character as distinct and sovereign states is always carefully and jealously preserved. We are, then, to contemplate them as sovereign states, when the first movements towards the formation of the present constitution were made.

Our author has given a correct history of the preparatory steps towards the call of a convention. It was one of those remarkable events, (of which the history of the world affords many examples,) which have exerted the most important influence upon the destiny of mankind, and yet have sprung from causes which did not originally look to any such results. It is true, the defects of the confederation, and its total inadequacy to the purposes of an effective government, were generally acknowledged; but I am not aware that any decisive step was taken in any of the states, for the formation of a better system, prior to the year 1786. In that year, the difficulties and embarrassments under which our trade suffered, in consequence of the conflicting and often hostile commercial regulations of the several states, suggested to the legislature of Virginia the necessity of forming among all the states a general system, calculated to advance and protect the trade of all of them. They accordingly appointed commissioners, to meet at Annapolis' commissioners from such of the other states as should approve of the proceeding, for the purpose of preparing a uniform plan of commercial regulations, which was to be submitted to all the states, and, if by them ratified and adopted, to be executed by congress. Such of the commissioners as met, however, soon discovered that the execution of the particular trust with which they were clothed, involved other subjects not within their commission, and which could not be properly adjusted without a great enlargement of their powers. They therefore simply reported this fact, and recommended to their respective legislatures to appoint

delegates to meet in general convention in Philadelphia, for the purpose not merely of forming a uniform system of commercial regulations, but of reforming the government in any and every particular in which the interests of the states might require it. This report was also transmitted to congerss, who approved of the recommendation it contained, and on the 21st of February, 1787, resolved, "that in the opinion of congress, it is expedient that on the second Monday in May next, a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to congress and the several legislatures, such alterations and provisions therein, as shall, when agreed to in congress and confirmed by the states, render the federal constitution adequate to the exigences of government, and the preservation of the union." (1 Elliott's Debates, 155.)

Such was the origin of the convention of 1787. It is apparent that the delegates to that body were to be "appointed by the several states" and not by "the people of the United States;" that they were to report their proceedings to "congress and the several legislatures," and not to "the people of the United States;" and that their proceedings were to be part of the constitution, only when "agreed to in congress and confirmed by the states," and not when confirmed by "the people of the United States." Accordingly, delegates were, in point of fact, appointed by the states; those delegates did, in point of fact, report to congress and the states; and congress did, in point of fact, approve, and the states did, in point of fact, adopt, ratify and confirm the constitution which they formed. No other agency than that of the states

as such, and of congress, which was strictly the representative of the states, is to be discerned in any part of this whole proceeding. We may well ask, therefore, from what unknown source our author derives the idea, that the constitution was formed by "the people of the United States," since the history of the transaction, even as he himself has detailed it, proves that the people of the United States did not appoint delegates to the convention, were not represented in that body, and did not adopt and confirm its act as their

own.

Even, however, if the question now before us be not merely and exclusively a question of historical fact, there are other views of it scarcely less decisive against our author's position. In the first place, I have to remark, that there was no such people as "the people of the United States," in the sense in which he uses those terms. The articles of confederation formed, at that time, the only government of the United States; and, of course, we are to collect from them alone the true nature of the connexion of the states with one another. Without deeming it necessary to enumerate all the powers which they conferred on congress, it is sufficient to remark that they were all exercised in the name of the states, as free, sovereign and independent states. Congress was in the strictest sense, the representative of the states. The members were appointed by the states, in whatever mode each state might choose, without reference either to congress or the other states. They could, at their own will and pleasure, recall their representatives, and send others in their places, precisely as any sovereign may recall his minister at a foreign court. The members voted in congress by states, each state having one vote, whatever might be the number of its representatives. There was no president, or other common executive head. The states alone, as to all the more important operations of the government,

were relied on to execute the resolves of congress. In all this, and in other features of the confederation which it is unnecessary to enumerate, we recognize a league between independent sovereignties, and not one nation composed of all of them together. It would seem to follow as a necessary consequence, that if the states, thus united together by league, did not form one nation, there could not be a citizen or subject of that nation. Indeed, congress had no power to make sach citizen either by naturalization, or otherwise. It is true, the citizens of every state were entitled, with certain exceptions, such as paupers, vagabonds, &c., to all the privileges of citizens of every other state, when within the territories thereof; but this was by express compact in the articles of confederation, and did not otherwise result from the nature of their political connexion. It was only by virtue of citizenship in some particular state, that its citizens could enjoy within any other state the rights of citizens thereof. They were not known as citizens of the United States, in the legislation either of congress or of the several states. He who ceased to be a citizen of some particular state, without becoming a citizen of some other particular state, forfeited all the rights of a citizen in each and all of the states. There was no one right which the citizen could exercise, and no one duty which he could be called on to perform, except as a citizen of some particular state. In that character alone could he own real estate, vote at elections, sue or be sued; and in that character alone could he be called on to bear arms, or to pay taxes.

What, then, was this citizenship of the United States, which involved no allegiance, conferred no right and subjected to no duty? Who were "the people of the United States?" Where was their domicile, and what were the political relations which they bore to one another? What was their sovereignty, and what was the nature of the allegiance which it claimed? Whenever these questions shall be satisfactorily answered without designating the people of the several states, distinctively as such, I shall feel myself in possession of new and unexpected lights upon the subject.

Even, however, if we concede that there was such a people as "the people of the United States," our author's position is still untenable. I admit that the people of any country may, if they choose, alter, amend, or abrogate their form of government, or establish a new one, without invoking the aid of their constituted authorities. They may do this simply because they have the physical power to do it, and not because such a proceeding would be either wise, just, or expedient. It would be revolution in the strictest sense of the term. Be this as it may, no one ever supposed that this course was pursued in the case under consideration. Every measure, both for the calling of the convention and for the ratification of the constitution, was adopted in strict conformity with the recommendations, resolutions, and laws of congress and the state legislatures. And as "the people of the United States" did not, in point of fact, take the subject into their own hands, independent of the constituted authorities, they could not do it by any agency of those authorities. So far as the federal government was concerned, the articles of confederation, from which alone it derived its power, contained no provision by which " the people of the United States" could express authoritatively a joint and common purpose to change their government. A law of congress authorizing them to do so would have been void, for want of right in that body to pass it. No mode which congress might have prescribed for ascertaining the will of the people upon

the subject, could have had that sanction of legal authority, which would have been absolutely necessary to give it force and effect. It is equally clear that

there was no right or power reserved to the states themselves, by virtue of which any such authoritative expression of the common will and purpose of the people of all the states could have been made. The power and jurisdiction of each state were limited to its own territory; it had no power to legislate for the people of any other state. No single state, therefore, could have effected such an object; and if they had all concurred in it, each acting, as it was only authorized to act, for itself, that would have been strictly the action of the states as such, and as contradistinguished from the action of the mass of the people of all the states. If "the people of the United States" could not, by any aid to be derived from their common government, have effected such a change in their constitution, that government itself was equally destitute of all power to do so. The only clause in the articles of confederation, touching this subject, is in the following words: "And the articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual, nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in congress of the United States, and be afterwards confirmed by the legislature of every state." Even if this power had been given to congress alone, without subjecting the exercise of it to the negative of the states, it would still have been the power of the states in their separate and independent capacities, and not the power of the people of the United States, as contradistinguished from them. For congress was, as we have already remarked, strictly the representative of the states; and each state, being entitled to one vote, and one only, was precisely equal, in the deliberations of that body, to each other state. Nothing less, therefore, than a

majority of the states, could have carried the measure in question, even in congress. But, surely there can be no doubt that the power to change their common government was reserved to the states alone, when we see it expressly provided that nothing less than their unanimous consent, as states, should be sufficient to effect that object.

There is yet another view of this subject. It results from the nature of all government, freely and voluntarily established, that there is no power to change except the power which formed it. It will scarcely be denied by any one, that the confederation was a government strictly of the states, formed by them as such, and deriving all its powers from their consent and agreement. What authority was there, superior to the states, which could undo their work? What power was there, other than that of the states themselves, which was authorized to declare that their solemn league and agreement should be abrogated? Could a majority of the people of all the states have done it? If so, whence did they derive that right? Certainly not from any agreement the states, or the people of all the states; and it could not be legitimately derived from any other source. If, therefore, they had exercised such a power, it would have been a plain act of usurpation and violence. Besides, if we may judge from the apportionment of representation as proposed in the convention, a majority of the people of all the states were to be found in the four states of Massachusetts, New York, Pennsylvania and Virginia; so, that upon this idea, the people of less than one-third of all the states could change the articles of confederation, although those articles expressly provided that they should not be changed without the consent of all the states! There was,

among

VOL. I. NO. IV.

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then, no power superior to the power of the states; and, consequently, there was no power which could alter or abolish the government which they had established. If the Constitution has superseded the articles of confederation, it is because the parties to those articles have agreed that it should be so. If they have not so agreed, there is no such Constitution, and the articles of confederation are still the only political tie among the states. We need not, however, look beyond the attestation of the Constitution itself, for full evidence upon this point. It professes to have been "done by the unanimous consent of the states present, &c.," and not in the name or by the authority of" the people of the United States."

(To be continued.)

THE BLIGHTED FLOWER.

BY ROBERT HOWE GOULD.

"Sweet rose, fair flower, untimely pluck'd, soon faded,-
Pluck'd in the bud, and faded in the spring!"

A flower of purest, softest bloom,
Oped its fair leaves upon my sight;
Shining thro' its sweet perfume

THE PASSIONATE PILGRIM.

Like moonbeams thro' the dews of night.
A thing more sweetly, purely fair,
Found never birth in earthly air.
E'en now, before my saddened view,
Fond memory paints its every hue!
It faded like a passing sigh;

-The fairest aye are first to die!-
Drooped on the stem its gentle head,
And straight its perfumed brightness fled.

How lonely now that parent tree,

Where such bright blossoms wont to be!
Grief perches now with sombre wing

Where these fair flow'rets learned to cling:
And makes a sad and gloomy shade,

Where erst the loveliest sunbeams played.

And in the scroll of human life,
Records like this are ever rife.
Behold yon lonely man of care:
Before his sight, a thing more fair,
-His brightest child, his darling one,
The binding link to those long gone;
His own fair girl, his earthly whole,

His hope, his prayer, his heart, his soul !—
Is fading, like that summer flower,
E'en in her beauty's brightest hour!