Page images

of the use of the terms) have always been inclined to represent the United States as constituting one people, instead of a confederacy of states; while their opponents (formerly called anti-federalists, but more recently known as the democratic or republican party) have ever strenuously contended that the constitution was a compact, or the result of a compact between the states; who retain their sovereignty, and all the rights of sovereignty, which they have not expressly transferred to the federal government. Thus we find Mr. Webster, the great champion of the federal party, pronouncing, (and judge Story once, but no longer, supposed to be of the states right party, quotes him with approbation) that "the doctrine that the states are parties to the constitution is refuted by the constitution itself in its very front. It declares that it is ordained and established by the PEOPLE of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states. But it pronounces that it is established by the people of the United States in the AGGREGATE!! Doubtless the people of the several states taken collectively constitute the people of the United

of individuals were, they thought, to be alleviated by industry and frugality, and not by a relaxation of the laws, or by a sacrifice of the rights of others. They were consequently uniform friends of a regular administration of justice, and of a vigorous course of taxation, which would enable the state to comply with its engagements. By a natural association of ideas, they were also, with very few exceptions, in favour of enlarging the powers of the federal government, and of enabling it to protect the dignity and character of the nation abroad, and its interests at home. The other party marked out for itself a more indulgent course. They were uniformly in favour of relaxing the administration of justice, of affording facilities for the payment of debts, or of suspending their collection, and of remitting taxes. The same course of opinion led them to resist every attempt to transfer from their own hands into those of congress, powers, which were by others deemed essential to the preservation of the Union. In many of the states the party last mentioned constituted a decided majority of the people; and in all of them it was very powerful." Such is the language of one of our best historians in treating of the period immediately preceding the formation of the constitution of the United States.*

* See also 5 Marshall's Life of Washington, 130, 131

States. But it is in this their collective capacity, it is, as all the people of the United States that they establish the constitution." (Webster's Speeches, pa. 430, cited 1 Story 331, 2.) ___Similar opinions are delivered in Martin v. Hunter, 1 Wheat. 324.

The foregoing passage is cited here, not for the purpose of exposing its disingenuous sophisms, but merely to present the views of one of the great parties of the country in relation to our federal constitution. It is their favourite position "that the constitution of the United States was ordained and adopted, not by the states in their sovereign capacities, but emphatically, as the preamble declares by the people of the United States, and it is this position. which it behoves every lover of truth and of the rights of the states most vigorously to assail. Its advocates indeed have maintained it with equal earnestness and ability, but having been foiled on some eminent occasions, and having fallen from power in no small degree from their strenuous maintenance of this political heresy, one of the most distinguished among them has compiled a laborious work with a view to sustain it. In doing this, judge Story has attempted to fortify himself, by shewing that the people of the United States were always one people: that the colonies themselves, when subjects of Great Britain, were not distinct and separate from each other, but were one people: that during the revolutionary struggle they were still one people even anterior to the confederation: that the declaration of independence treated them as one people, and that this oneness or unity particularly distinguished them in "ordaining and establishing the constitution of the United States." Such is the general tenor, as it appears to me, of judge Story's doctrine, but as I shall, in proceeding to examine it, quote his very language, I shall have done him no injustice, if what I have just said does not represent him fairly. Let us proceed then to state and examine his several positions.

We will begin with the colonies. In page 164, judge Story remarks that "though 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, (e) and, as a British subject, was capable of inheriting lands by descent in every other colony." And he proceeds to cite Ch. Jus. Jay to the same point "that they were in a variety of respects one people."

Let us then enquire whether the colonies before the revolution were justly to be regarded in any respect or for any purpose one people. I propose to examine this question shortly, according to the views of the statesmen of the times, and the admissions of judge Story himself; according to the nature of the several political societies; according to historical facts, and upon principle.'

First, it is clear, that the colonies were looked upon not as constituting part even of the body politic of the British government, but as subject to it; "not as part of the mother country, BUT AS DISTINCT, though dependent dominions." Such is the language of Mr. Blackstone when speaking of these very colonies. (Vol. 1, 107.) So even the kingdom of Scotland, after the union of the two crowns on the accession of James I. continued an entire, separate and distinct kingdom for above a century; and so when judge Blackstone wrote, Ireland was still a distinct, though a dependent and subordinate kingdom (p. 99). So also of Hanover, though it has the same king that sits on the British throne, it is a distinct, independent and unconnected kingdom, (p. 110.)(ƒ)

Admitting then that the colonies, though the subjects of the crown, made no part of the MOTHER Country, but were DISTINCT, though dependent dominions, they were a fortiori DISTINCT from each other: For if their being subject to the authority of the crown of England did not make them to any intent one people with England, still less could they be one people with other states, that neither were subject to them nor had authority over them.

(e)" It never was considered," says judge Iredell, "that before the actual signature of the articles of confederation a citizen of one state was to any one purpose a citizen of another. He was, as to all substantial purposes, as a foreigner to their forensic jurisprudence. If rigorous law had been enforced, perhaps, he might have been deemed an alien without an express provision of the state to save him." Hence the provisions in the articles of confederation and in the constitution United States.

(f) See Vattel, Burlamaque and Hutchinson, quoted Tucker's Black. app. 64, 65.

That the colonies were held to be only subjects, and not as forming part of the British body politic, is fairly to be inferred from the speeches of lord Chatham and Mr. Burke in the passages quoted by Mr. Story himself (p. 153, 4); for they are distinctly considered as the subjects of the crown, and their rights and privileges are placed upon the footing of being British subjects, who, though residing in a distinct dominion from England, were entitled to the common privileges of every subject of the crown. The colonies themselves they considered distinct from the realm of England: and, moreover, "the authority over them was declared by lord Chatham to be sovereign and supreme in every circumstance of government and legislation."(g) The statute 6 Geo. III. also declares the colonies subordinate to and dependent upon the imperial crown and parliament: and so they were not on a footing with British people, but were subject to them, and were not therefore one with them. And if not one with them, in what manner could they be one with each other.

Judge Story indeed himself admits that "for all purposes of domestic and internal regulation the colonial legislatures deemed themselves possessed of entire authority exclusive of each other," (p. 152): and that with the restrictions necessarily arising from their dependency on Great Britain, "they were sovereign within the limits of their respective territories." (p. 158.) And again he says,


they considered themselves not as parcel of the realm of Great Britain, but as dependencies of the British crown, and owing allegiance thereto, the king being their supreme and sovereign lord." If then they were not one with the realm, it is difficult indeed to imagine how they could as distinct dependencies be one with each other.

Again, in page 163, he says more distinctly, "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 connexion 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.

(g) This doctrine, however extravagant, shews that Chatham did not look upon the colonies as parts of the realm.


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 state. They were known only as dependencies." Now all this is orthodox and true, and as such we heartily adopt it. It is not for me indeed to attempt to reconcile it with the position already cited, that they were to many purposes one people; (page 164,) and still less with the reasoning attempted, in page 196, to be founded on these narrow premises. We shall have occasion however to view this matter more closely by and by. At present we think judge Story's admissions sufficiently establish, that if the colonies were not sovereign communities in the most large and general sense," it was because they were subjects of the British crown, and not because they were subjects of or connected with each other. The matter would have been more doubtful had they formed parts of the realm as York and Middlesex do; subject to the same laws, constituting portions of one body politic, and having the commune vinculum of the same legislative authority. Then indeed there might have been some pretext for considering the fragments broken off from a common mass as being homogeneous and identical, but it will require more than the ipse dixit even of judge Story to establish a unity between peoples(h) with different laws, different systems of government, different organizations in all their parts, different revenues, different taxation, different deliberative assemblies in relation to their concerns as "people," and different local executives and judiciaries for the conduct of their affairs and the administration of their varied jurisprudence. This leads me to observe,

Secondly, That the states were not one but distinct from the nature of their several political societies. This is apparent, if we look at their origin, their settlements, and their forms of civil polity. They were settled at very different times, Virginia 150 years before Georgia, and the rest at intermediate periods. They came over to these desert countries under different circumstances. Some of the governments were provincial, some proprietary, and some

(h) I use the plural as Detoqueville very happily does.

« PreviousContinue »