Lecture I
Having presented to you, young gentlemen, in some former lectures, my views of the character and principles of the several forms of government, and particularly of the representative and confederate, we will now proceed to a more accurate examination of our own political system, which has been professedly constructed upon the combined principles of popular representation and an union of sovereign and independent states. I confidently believe that these enquiries will result in the conviction that whilst we have adopted a system without a prototype, we shall, nevertheless, find it eminently calculated to protect us from foreign aggression, and to secure the rights of life, liberty and property to every citizen of those free and happy republics.
Before we proceed however with our task, it may not be improper to recall to your recollections certain points of our national history with which you are doubtless familiar, but which bear too materially upon our subject to be passed at least without a reference.
The people of the United States, as you all are aware, are composed of the descendants of those subjects of the British crown, who, from various motives, left within the two last centuries their native isles and settled themselves upon this wild and desert continent. It is a principle of British law that if an uninhabited country is discovered and planted by British subjects, the English laws are immediately in force there; for the law is the birthright of every subject: so that wherever they go they carry their laws with them, and the new found country is governed by them. The proposition however must be considered as limited by their applicability and their consistency with the local and political circumstances in which the colonists are placed; and, moreover, by those changes which, in the lapse of time may be made by that power which exercises the legislative authority over them.
Such seems, indeed, to be the natural course of things, though the notion has been derided by some of our most distinguished men. It could not well have been otherwise. If we imagine a body of emigrants settling in an uninhabited country, we must suppose them to be under the government of some laws. Bodies of men cannot subsist without them. And if they must have some, what so natural as their recognition, even without adoption, of that system under which they were born, and to which they have been accustomed? Under such circumstances, the laws of the fatherland, so far as they might be applicable, would be looked to as the rule of civil conduct, commanding what is right and prohibiting what is wrong. This would be the natural course of things, if the bond which united the emigrants to the land of their birth was severed forever. It would have been the case with our forefathers, if, when they left the British shores, they could have fled beyond the reach of the keen eye and powerful arm of the monarch who claimed them as his subjects. But this was not their case. They might have exclaimed in the language of the Psalmist, “If I take the wings of the morning and dwell in the uttermost parts of the sea, even there shall thy hand lead me and thy right hand shall hold me.”
This indeed was eminently the case with the British subject. Leashed to the footstool of the British crown, no time nor distance could dissolve the tie. The law of allegiance bound him wherever he might go, and “he dragged at each remove a lengthening chain.” It was the principle of the law of that land that neither time nor distance could impair its obligation. Allegiance was a quality or duty, and as is said in the quaint language of a learned apprentice in Plowden, it was held to be ridiculous to attempt to force the predicament of quality into the predicament of ubi. Wherever, therefore, the British power reached, the British emigrant would be governed by its laws; and wherever he felt its restraints, or was sensible of its trammels, he would naturally claim as a set-off to its burdens, a full title to its privileges and protection. Thus it is that in the declaration of rights drawn up by the continental congress of 1774, we find it declared, “that our ancestors, who first settled these colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties and immunities of free and natural born subjects within the realm of England.”
But the common law thus brought by the colonists was, it must be observed, very different at the periods of the different settlements. The common law as existing at the settlement of Virginia was very much modified before the settlement of Georgia in the reign of George the second; so that there never has been in the various states the same system of common law in all its ramifications, though its general character throughout the whole was very much the same, except so far as it had been altered by statutes enacted by the legislatures of the respective colonies. For very early after the respective settlements, provincial assemblies were established, composed of the representatives of the freeholders and planters, with whom were associated the governor and council, the last of whom composed an upper house, while the governor was invested with the power of a negative, and of proroguing and dissolving them. Thus constituted they soon acquired a code of their own, and introduced very large and important variations from the common law in all its branches; so that at the date of the revolution, and still more at the date of the present constitution of the United States, the systems of jurisprudence of the several states were so dissimilar that it would have been impossible, even if had been desired, to have adopted the common law as the general law of the United States as such.
The power of legislation thus exercised by the colonial legislatures, with the restrictions necessarily arising from their dependence on Great Britain was not without control: for in all the colonies, except Maryland, Connecticut and Rhode Island, the king possessed the power of abrogating the laws, and they were not final in their authority until they had passed under his review. (1 Story 158.) The colonies indeed were looked upon as dependencies of the British crown and owing allegiance thereto; the king being their supreme and sovereign lord. (1 Vez. 444; Vaugh. R. 300, 400; Shower’s Parl. Ca. 30, &c.) From him the colonial assemblies were considered as deriving their energies, and it was in his power to assent or dissent to all their proceedings. In regard to the authority of parliament, the government of Great Britain maintained the right of that body to bind the colonies in all cases whatsoever; though it was admitted that they were bound by no act of parliament in which they were not expressly named. In America different opinions were entertained on the subject at different times and in different colonies. The power of taxation however was resisted from a very early period; (1 Story 172, 3, 4,) and the allegiance to the crown on the one hand, and the right of exemption from taxes unless imposed by themselves on the other, are equally asserted in a declaration of the colonies assembled at New York in October 1765. (1 Story 175.) And although in the same paper, the power of parliament to bind the colonies by legislation was admitted, yet upon the same principles on which the right of taxation was denied, the people of the colonies at length settled down upon the broad principle, that parliament had no power to bind them by its laws, except by such as might be enacted for the regulation of commerce and of the general concerns of the empire. While allegiance to the crown was thus admitted, the authority of parliament to legislate in matters of taxation and internal policy was denied; and even the declaration of independence distinctly evinces by its silence as to parliament, that the authority to which they traced their wrongs, and whose action upon them was recognized was the king alone, until the power of taxation was asserted by parliament. This assertion and the wrongs of the crown at length brought revolution, and as soon as its first steps were taken, and even before a final separation was in contemplation, a close union and co-operation of all the colonies were perceived to be essential to the successful vindication of their rights and liberties as British subjects. A congress of delegates from the several colonies accordingly assembled first in 1774, and afterwards in 1775, and by them the necessary measures were adopted for the general defence [sic]. We shall hereafter have occasion to consider whether this body was to be looked upon as representing one people or thirteen distinct communities. But in this hasty sketch of the progress of the states to their present condition, it seems only necessary to say, that the congress of 1774 considered itself as invested with power to concert measures for redress of grievances, and that those of 1775 and 1776 were clothed with yet more ample powers; their commissions being sufficiently broad to embrace the right to pass measures of a national character and obligation. Anticipating the eager spirit of the people in resistance of British oppression and claims of dominion, they took measures of national defence [sic]; prohibited intercourse and trade with Great Britain, and raised an army and navy and authorized hostilities. They also raised and borrowed money; emitted bills of credit; established a post office, and authorized captures and condemnations of prizes in prize courts, with a reserve of appellate jurisdiction to themselves. At length, by the same body, the United States were declared independent in the most gloomy moments of the contest, and they continued to exercise the powers of a general government under a loose and irregular authority, until the adoption of the articles of confederation by some of the states in 1778. Those articles gave indeed a more firm and decided character to the government, and sustained by patriotism and the ardour of the conflict, bore us at length safely through our arduous struggle with one of the most powerful nations of the globe. On the termination of the war, the pressure of which, like the pressure of the superincumbent atmosphere, gave a principle of solidity to our institutions which did not properly belong to them, every thing became relaxed. The bands which united us seemed loosened, and all perceived how important it was they should be tightened. Years however passed away before the submission of the plan of a new constitution to the people, and the adoption of it by them. No sooner did it go into operation than it placed the states of the Union upon an elevation which even the most sanguine could scarcely have anticipated. We may reiterate the exclamation which Mr. Blackstone has borrowed from father Paul, and terminate our grateful acknowledgments to the giver of all good for our blessed constitution, by the fervent ejaculation “Esto perpetua.”
After this rapid sketch let us now proceed to look more closely into the nature and character, not only of our institutions, but of the relation which the several states have borne to each other, whether considered as colonies, or as brethren fighting shoulder to shoulder under the same irregular government, or as members of a great and organized confederacy, or finally as constituting the great and happy Union under which we live, protected against enemies abroad, and carefully secured from the danger of tyranny at home.
In the history of the two great parties which have divided the people of the United States ever since the adoption of the present constitution, a constant struggle is observable in relation to the character of the government. The federal party (so called by a strange perversion 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 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,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.)
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.
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.” 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. 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 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 were chartered. Nay, more—some were conquered, as were New York and Jersey, and by the principles of the common law, the laws of the conquered lands prevailed till changed by the stern fiat of the conquerors. These various peoples were, therefore, essentially distinct and separate, and utterly incapable of amalgamation or oneness: and we must remember that the question is not whether they were sovereign in respect of foreign nations, but whether they were one in regard to each other.
But the several colonies were not only different in origin and in organization, but they were perfectly independent in their jurisdiction. No one colony had any pretence of authority or power within the bounds of another. Even under the threatenings of a savage foe one could not call out the militia of another. Hence the early confederations among some of the northern colonies for mutual defence, and hence the abortive attempt shortly anterior to the war of 1756 to establish a more comprehensive union of the colonies. These associations and attempts at association successfully repel every notion of oneness between them. If they were one already, where was the necessity of any farther measure to bind them together? If they were one, why were not all compelled to join in those associations? Why, in the language of chancellor Kent, (vol. 1, pa. 205,) were they destined to remain longer separate, and in a considerable degree alien commonwealths, jealous of each other’s prosperity, and divided by policy, institutions, prejudice and manners? Why was the force of these considerations so strong, as to have induced Dr. Franklin (one of the commissioners to the congress that formed the plan of Union in 1754) to have observed that a union of the colonies was absolutely impossible, or at least without being forced by the most grievous tyranny and oppression? Why did Gov. Pownal concur in the same sentiment, declaring, that the colonies had no one principle of association among them, and that their manner of settlement, diversity of charters, conflicting interests, and mutual rivalships and jealousies rendered union impracticable? (Pownal on the Colonies, 35, 36, 93.)
The colonies, indeed, in some regards, appear not only to have been distinct from each other, but to have exercised distinctly independent acts of sovereignty, under the control indeed of the king of England, whose subjects they were. Thus, anterior to the revolution, many treaties were made by the respective colonies with the Indians within their boundaries, all of whom were admitted to be the rightful occupants of the soil, with a right to use, retain and reside upon it, exercising authority over it, governing themselves by their own laws, and having the privilege of selling their lands or not, at their pleasure, to the civilized people who discovered the country. Accordingly the several colonies, by treaties, anterior to the revolution, entered, for themselves and on their separate account, into treaties with the Indians in which no other colony had any participation or concern. Thus it would seem that in all things they acted at pleasure, independently of each other; no one could interfere with another: when they acted in concert it was either by compact or by command of a common head, and when that head was severed, they were left without any commune vinculum to hold them together, and each had a separate and distinct power to supply the loss by creating an executive of its own, according to its own notions of propriety and policy.
If we consider the matter upon principle it is not less clear. What is it which constitutes nationality or the oneness of people? A nation or people is a political body united together by common laws and common institutions. To constitute one people, those who compose it must act as one people. It is the unity of action which alone makes those one, who, without it, would be several. Several individuals may unite in a body politic, and by this unity of action be held as one man. Without such unity they must remain, what they are by nature, several. No union of states, indeed, can ever make one people; for while they continue states, each acts for itself, and that entire unity of action is wanting, which, alone, constitutes oneness. If the power of separate action be surrendered, nationality indeed is created, but the states are no more. With what propriety can it be affirmed that bodies of people are one people, when they have separate and distinct governments; of separate and distinct forms; with distinct and conflicting systems of jurisprudence; where the judgments of one are held foreign to the other (as was the case in the colonies); when neither can interfere with or control another, and, in short, when each has the power of governing itself without being dependent on the will of the other? Judge Story, himself, tells us (195) that if a state has the sole power of governing itself, and is not dependent on any foreign state, it is called a sovereign state; from which the corollary seems fair, that every state must be held to be independent and distinct from every other state by which it is not governed. The law-making power seems peculiarly to give its character in this regard to the society. That which makes for itself to, and particularly its fundamental law, is so far sovereign. That power of legislation for itself, makes it distinct from others; for legislation is the action of political bodies, and separate legislation is separate action, which is inconsistent with the notion of unity. Thus it is that two peoples may have the same king, and yet be separate people: as in the case of Great Britain and Hanover now, and of England and Scotland before the union. The union itself proves that they were not one before. At this day England and Hanover, with the same king, are not involved in the wars of each other. Ireland, too, before the union, was considered as foreign, and the judgments of her courts, and those of Jamaica, of Canada and of India are looked upon as foreign judgments. Even the judgment of the king’s bench is a foreign judgment in Ireland, 2 Str. 1090; 4 Barn. & Cres. 411; and the court of king’s bench itself affirms the judgment which so pronounces it. But if these portions of the empire are foreign to England, the thirteen colonies must have been foreign to her, and if foreign to her, how much more foreign to Hindostan, or Antigua, or to one another?
There was then nothing of nationality or oneness in the people of the colonies. Each colony was a distinct community or body politic; having its own charter, its own government, its own laws and institutions, and its own right of separate action, under the control indeed of the crown, but not of the sister colonies: and hence, I confidently conclude, that they did not in any sense whatever constitute one people.
Unwilling however to leave this important position upon my less forcible arguments, I offer to the student the acute remarks of judge [Abel P.] Upshur in his able review of a part of judge Story’s work. The learned and sagacious author observes:
It appears to be a favourite object with the author 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 connexion 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 connexion 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 any where 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, our author himself informs us that it belonged to him ‘as a British subject.’ That right, indeed, is a 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 shewn in the present case. On the contrary, although that right was resisted for a time by some of the American colonies, it was finally 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 the 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 shew 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 connexion 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 Indian 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 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 shew 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 our author’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 the author’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 slight 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 references 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 point will be removed in the progress of this examination. The great effort of the author, throughout his 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 the author 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, something 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. Any thing 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. 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 or 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 connexion 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 governments 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 forms of their governments; 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, Pennsylvania 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 upon 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?
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 the author alludes? It is certainly incumbent on him who asserts this identity, against the inferences most naturally deducible from the historical facts, to shew 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 favour of his bare assertion. The charters of the colonies prove no identity between them, but the reverse; and it has already been shewn 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 the author to explain.
If these views of the subject be not convincing, the author 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 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. 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. As colonies they were also excluded from all connexion with 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 defence, 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 differences 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 the author, no where appears, but it 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 connexion with each other!’ The condition of the colonies was, indeed, anomalous, if our author’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 connexion with each other,’ and who had not the power to form such connexion, even ‘ by league or treaty among themselves.’
This brief review will, it is believed, be sufficient to convince the reader, that our author 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 candour 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 the author’s inferences from the facts, which he himself has stated, be warranted by them, or not.
