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 INTRODUCTORY NOTICE. 
 
 THERE is a prevailing tendency in the popular mind, at the present 
 time, to undervalue the importance of the States in the American system 
 of Government. This fact has suggested the republication of this 
 Essay on their true relations to the Federal Government. A word as 
 to the personal history of the author. 
 
 It has been the fate of ABEL PARKER UPSHUR, to be more gene- 
 rally known by the accidental circumstance of his melancholy end, 
 than by his own merits. He was killed by the explosion of a great 
 gun (the Peacemaker, as it was called,) on board the Steamer Prince- 
 ton ; being at the time the Secretary of State of the United States, 
 under President Tyler. This was on the 28th of February, 1844. 
 He had studied law under William Wirt : he practised his profession 
 from 1810 to 1824. After an interval of retirement, he held high 
 judicial position as Judge of the General Court of Virginia, from 
 1826 to 1841 ; at which last period, 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.
 
 PREFACE. 
 
 THE book to which the following pages relate has been for 
 several years before the public. It has been reviewed in 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 prin- 
 ciples 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 de- 
 volved upon abler hands the task which I have now 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, how- 
 soever unfavorable 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 en- 
 deavored to re-establish. 
 
 The following essay was prepared about three years ago, with 
 a view to its publication in one of our periodical reviews. Cir- 
 cumstances, which it is unnecessary to mention, prevented this
 
 i v PREFACE. 
 
 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 sub- 
 ject, 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 degree of clearness, 
 and a proper reference to authorities, where authorities are 
 relied on.
 
 FEDERAL GOVERNMENT 
 
 A REVIEW. 
 
 COMMENTARIES ox THE CONSTITUTION OF THE UNITED STATES, WITH A PRE- 
 LIMINARY REVIEW OF THE CONSTITUTIONAL HISTORY OF THE COLONIES 
 AND STATES BEFORE THE ADOPTION OF THE CONSTITUTION. BY JOSEPH 
 STORY, LL. D., DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY. 
 
 IT came within the range of Judge Story's duties, as Dane 
 Professor of Law in Harvard University, to expound and illus- 
 trate the Constitution of the United States. His lectures upon 
 that subject have been abridged by himself, and published in a 
 separate volume, under the above title. 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 constitu- 
 tion 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 under- 
 standing 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 im- 
 peaching his modesty, that he expected it to be received as a 
 complete work. It is, indeed, quite as full as any such work
 
 5 TRUE NATURE AND CHARACTER OF 
 
 needs to be, for any purpose, except, perhaps, the very 
 L " J first *lessons to the student of constitutional law. The 
 politician and the jurist may consult it, with a certainty of find- 
 ing 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 de- 
 served 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 Com- 
 mentaries of Chief Justice Kent hold the first rank. Both 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 Con- 
 stitution, 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 recom-
 
 OUR FEDERAL GOVERNMENT. Q 
 
 mend 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 com- 
 mand our entire confidence. Besides, the Constitution was - ^-, 
 then *untried, 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 govern- 
 ment, 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 an- 
 other, 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 de- 
 fective in some important particulars, and deficient in many more. 
 The Constitution is much better understood at this day than it 
 was at the time of its adoption. This is not true of the great 
 principles of civil and political liberty, which lie at the founda- 
 tion of that instrument ; but it is emphatically true of some of 
 its provisions, which were considered at the time as compara- 
 tively 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. Con- 
 temporary expositions of the Constitution, therefore, although 
 they should be received as authority in some cases, and may en- 
 lighten 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 be- 
 fore the Federalist was written. 
 
 It is not surprising, therefore, that the work now under con- 
 sideration should have been hailed with pleasure, and received 
 with every favorable disposition. Judge Story fills a high sta-
 
 7 TRUE NATURE AND CHARACTER OF 
 
 tion 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 in- 
 vestigations 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 in- 
 deed wonderful, if he should hazard his well-earned reputation 
 as a jurist, upon any hasty or unweighed opinion, upon subjects 
 r*Q-| s 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 pub- 
 lic 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 
 there be, may borrow from the mere authority of the distin- 
 guished 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 ante-revolu- 
 tionary jurisprudence of the colonies. The second will em- 
 brace the constitutional history of the States, during the revo- 
 lution, and the rise, progress, decline and fall of the confedera- 
 tion. The third will embrace the history of the rise and adop-
 
 OUR FEDERAL GOVERNMENT. 8 
 
 tion of the Constitution, and a full exposition of all its provi- 
 sions, 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 analytic. 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 rea- 
 der can desire. The first part relates to a subject of the great- 
 est 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 refer- 
 ence 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 the events which * distinguished that r*q-i 
 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 con- 
 template them in another and a higher character. A deep and 
 solemn feeling of religion, and an attachment to, and an under- 
 standing 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 his- 
 torian 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 inter- 
 pretation of those parts of our systems, as to which we have no 
 precise rules in the language of our constitutions of govern- 
 ment. It is to be regretted that Judge Story did not take this 
 view of the subject. Although not strictly required by the
 
 9 TRUE NATURE AND CHARACTER OF 
 
 i 
 
 plan of his "work, it was, nevertheless, altogether consistent -Frith 
 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 analytic 
 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 upon 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 un- 
 derstood 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 
 r*101 g vernment j by tne political party to which he *be- 
 longs, 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 our author 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 va- 
 rious 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. 
 
 It appears to be a favorite object with the author to impress 
 upon the mind of the reader, at the very commencement of his
 
 OUR FEDERAL GOVERNMENT. 1Q 
 
 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 
 jconcerns, 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 com- 
 mercial 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 com- 
 menced, the patriots did not assert that only the same aflinity 
 and social connexion subsisted between the people of the colo- 
 nies, 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 posi- 
 tion, 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 r *-.-.-, 
 extend the idea of a unity among the people of the 
 colonies beyond the several particulars which he has enume- 
 rated. 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
 
 11 TRUE NATURE AND CHARACTER OF 
 
 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 con- 
 clusion 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 shown 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 par- 
 liament, 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 prin- 
 ciple. It was the right of every British subject to be exempt 
 from taxation, except by his own consent ; and as the colonies
 
 OUR FEDERAL GOVERNMENT. H 
 
 were not, and from their local situation could not be, *re- 
 
 r *i2~i 
 
 presented in parliament, the right of that body to tax L 
 them was denied, upon a fundamental principle of English 
 liberty. But the right of the mother country to regulate com- 
 merce 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 show that these, taken altogether, are, in the strict- 
 est 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 exer- 
 cised 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, dis- 
 tinct 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 circum- 
 stances, warrant the conclusion which the author has drawn
 
 ^2 TRUE NATURE AND CHARACTER OF 
 
 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 colo- 
 nies themselves ; and this presupposes that they were distinct 
 m o -i aad 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 pro- 
 vinces, 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 pecu- 
 liar 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, de- 
 clare, 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 colo- 
 nies. They were nothing more than the ordinary rights and
 
 OUR FEDERAL GOVERNMENT. 13 
 
 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 
 
 r*14T 
 reasoning which bears even a doubtful relation to his L J 
 
 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 one-ness among the people of the several colo- 
 nies, 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 in- 
 formed 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 sum- 
 marily disposed of. We should not be content, therefore, with 
 2
 
 14 TRUE NATURE AND CHARACTER OF 
 
 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 neces- 
 sary than that they should owe a common allegiance to a com- 
 mon sovereign. Neither is it sufficient that, in s/)me particulars, 
 they are bound alike, by laws which that sovereign may pre- 
 scribe ; 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 alle- 
 giance 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 
 * J 'exert no sovereign power except in the name of the 
 whole. Any thing short of this, would be an imperfect defini- 
 tion 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 gov- 
 ernment, and as forming a part thereof; but this allegiance 
 was exclusive, in each colony, to its own government, and, con- 
 sequently, to the king as the head thereof, and was not a com- 
 mon 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 
 
 * The resolutions of Virginia, in 1765, show that she considered herself 
 merely as an appendage of the British crown; that her legislature was alone 
 authorized -to tax her; and that she had a right to call on her king, who was 
 also king of England, to protect her against the usurpations of the British 
 parliament.
 
 OUR FEDERAL GOVERNMENT. 15 
 
 not bound by its laws. The colonies had no common legisla- 
 ture, no common treasury, no common military power, no com- 
 mon 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 con- 
 trol in its municipal government, no interest in its municipal 
 institutions. There was no prescribed form by which the colo- 
 nies 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 affect- 
 ing 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 crea- 
 tion ; 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 estab- 
 lished. The people of Virginia owed allegiance to the British 
 king, as the head of their own local government. The authority
 
 IQ TRUE NATURE AND CHARACTER OF 
 
 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 Ply- 
 mouth and Virginia ? If so, to which government was their 
 allegiance due ? Virginia had a government of her own, Penn- 
 sylvania a government of her own, and Massachusetts a govern- 
 ment 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 Penn- 
 sylvania 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, sub- 
 ject to the authority of the parent *country, in all 
 -" respects as before. bould the other colonies have 
 rightfully compelled it to unite with them in their revolution- 
 ary 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
 
 OUR FEDERAL GOVERNMENT. 17 
 
 the Canadas, and every other part of the British empire. The 
 colonies, which had declared war, would have considered its 
 people as enemies, hut 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 com- 
 mon welfare, there was no right in all the people together, to 
 coerce the members of their own community to the perform- 
 ance 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 
 show at what time, by what process, and for what purposes, it 
 was effected. He claims too much consideration for his per- 
 sonal 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 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 alle- 
 giance, 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
 
 17 TRUE NATURE AND CHARACTER OF 
 
 fate of the parent country, *both in peace and war, 
 J -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, 
 zvithout the assent of the parent State. And though their mutual 
 wants and necessities often induced them to associate for com- 
 mon 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, nowhere appears, but is distinctly 
 disaffirmed in every sentence. The colonies were not only dis- 
 tinct in their creation, and in the powers and faculties of their 
 governments, but there was not even "an alliance or con- 
 federacy 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, anom- 
 alous, 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 con- 
 dition and relation of the colonies, in supposing that they 
 formed "one people," in any sense, or for any purpose what- 
 ever. He is entitled to credit, however, for the candor with
 
 OUR FEDERAL GOVERNMENT. lg 
 
 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. 
 
 *In the execution of the second division of his plan, 
 v ery little was required of the author, either as a his- *- 
 torian or as 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 ra- 
 pidity, 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 opin- 
 ions, without due warrant. The desire to make " the people of 
 the United States" one consolidated nation is so strong and pre- 
 dominant, that it breaks forth, often uncalled for, in every part 
 of his work. He tells us that the first congress of the revolu- 
 tion was "a general or national government;" that it "was 
 organized under the auspices and with the consent of the people, 
 acting directly in their primary, sovereign capacity, and with- 
 out the intervention of the functionaries to whom the ordinary 
 powers of government were delegated in the colonies. He ac- 
 knowledges 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 pressure 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 in- 
 dependence, 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 op- 
 pressions 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
 
 19 TRUE NATURE AND CHARACTER OF 
 
 made no discrimination between them, in the general course of 
 her colonial policy. Their rights, as British subjects, had never 
 been \vell defined ; and some of the most important of those 
 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 con- 
 cern ; and they then made a formal declaration of what they con- 
 sidered 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 govern- 
 ment gave new and just causes of complaint ; so that, in 1774, 
 it was deemed necessary that *the colonies should again 
 "" J 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 Phila- 
 delphia, on the 5th of September, 1774. It consisted of dele- 
 gates 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, Newcastle, 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 ;* in like manner, Lyman Hall was admitted to 
 
 * The historical fact here stated, is perfectly authenticated, and has never 
 been disputed ; nevertheless, the following extracts from the Journals of Con- 
 gress, may not be out of place. 
 
 " Wednesday, September 14, 1774. Henry Wisner, a delegate from the county 
 of Oranffe, in the colony of New York, appeared at congress, and produced a cer- 
 tificate of his election by the said county, which being read and approved, he 
 took his seat in congress as a deputy from the colony of New York." 
 
 "Monday, September 26, 1774. John Hening, Esq., a deputy from Oranffe 
 county, in the colony of New York, appeared this morning, and took his seat as 
 a deputy from that colony." 
 
 " Saturday, October 1, 1774. Simon Bocrum, Esq., appeared in congress as 
 a deputy from King's county, in the colony of New York, and produced the cre- 
 dentials of his election, which being read and approved, he took his seat as a 
 delegate from that colony." 
 
 It is evident from these extracts, that although the delegates from certain
 
 OUR FEDERAL GOVERNMENT. 20 
 
 his seat, in the succeeding congress, as a delegate from the 
 parish of St. Johns, 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 22d 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 im- 
 portant, 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 neces- 
 sary, and beyond them none were given. Neither does it ap- 
 pear that any precise time was assigned for the duration of con- 
 gress. The duty with which it was charged was extremely 
 simple ; and it was taken for granted that it would dissolve itself 
 as soon as that duty should be performed.* 
 
 portions of the people of New York were admitted to seats in congress as dele- 
 gates from the colony, yet, in point of fact, they were not elected as such, neither 
 were they ever recognized as such, by New York herself. The truth is, as will 
 presently appear, the majority of her people were not ripe for the measures 
 pursued by congress, and would not have agreed to appoint delegates for the 
 whole colony. 
 
 *A reference to the credentials of the congress of 1774 will show, beyond 
 all doubt, the true character of that assembly. The following are extracts 
 from them. 
 
 New Hampshire. " To devise, consult and adopt such measures as may have 
 the most likely tendency to extricate the colonies from their present difficulties; 
 to secure and perpetuate their rights, liberties and privileges, and to restore 
 that peace, harmony and mutual confidence, which once happily subsisted be- 
 tween the parent country and her colonies." 
 
 Massachusetts. " To consult on the present state of the colonies, and the 
 miseries to which they are, and must be reduced, by the operation of certain 
 acts of parliament respecting America; and to deliberate and determine upon 
 wise and proper measures to be by them recommended to all the colonies, for the 
 recovery and establishment of their just rights and liberties, civil and religious, 
 and the restoration of union and harmony between Great Britain and the colo- 
 nies, most ardently desired by all good men."
 
 21 TRUE NATURE AND CHARACTER OF 
 
 r*99-i It is perfectly apparent that the mere * appointment 
 '" of this congress did not make the people of all the colo- 
 
 Rhode Island. " To consult on proper measures to obtain a repeal of the 
 several acts of the British parliament for levying taxes on his majesty's sub- 
 jects in America without their consent, and upon proper measures to establish 
 the rights and liberties of the colonies upon a just and solid foundation, agree- 
 ably to instructions given by the general assembly." 
 
 Connecticut. "To consult and advise on proper measures for advancing 
 the best good of the colonies, and such conferences to report from time to time 
 to the colonial house of representatives." 
 
 New York. Only a few of her counties were represented, some by deputies 
 authorized to " represent," and some by deputies authorized to " attend con- 
 gress." 
 
 New Jersey. " To represent the colony in the general congress." 
 
 Pennsylvania. <l To form and adopt a plan for the purposes of obtaining re- 
 dress of American grievances, ascertaining American rights upon the most solid 
 and constitutional principles, and for establishing that union and harmony be- 
 tween Great Britain and the colonies which is indispensably necessary to the 
 welfare and happiness of both." 
 
 Delaware. " To consult and advise with the deputies from the other colonies, 
 to determine upon all such prudent and lawful measures as may be judged 
 most expedient for the colonies immediately and unitedly to adopt, in order to 
 obtain relief for an oppressed people,(a) and the redress of our general griev- 
 ances." 
 
 Maryland. " To attend a general congress, to effect one general plan of con- 
 duct operating on the commercial connexion of the colonies with the mother 
 country, for the relief of Boston and the preservation of American liberty." 
 
 Virginia. "To consider of the most proper and effectual manner of so ope- 
 rating on the commercial connexion of the colonies with the mother country, 
 as to procure redress for the much injured province of Massachusetts Bay, to 
 secure British America from the ravage and ruin of arbitrary taxes, and speedily 
 to procure the return of that harmony and union, so beneficial to the whole 
 empire, and so ardently desired by all British America." 
 
 North Carolina. " To take such measures as they may deem prudent to ef- 
 fect the purpose of describing with certainty the rights of Americans, repairing 
 the breach made in those rights, and for guarding them for the future from any 
 such violations done under the sanction of public authority." For these pur- 
 poses the delegates are " invested with such powers as may make any acts done 
 by them obligatory in honor, on every inhabitant hereof, who is not an alien to 
 his country's good, and an apostate to the liberties of America." 
 
 South Carolina. " To consider the acts lately passed, and bills depending in 
 parliament with regard to the port of Boston, and Colony of Massachusetts 
 Bay; which acts and bills, in the precedent and consequences, affect the whole 
 continent of America. Also the grievances under which America labours, by 
 reason of the several acts of parliament that impose taxes or duties for raising 
 
 (a) Massachusetts, the particular wrongs of which are just before recited at 
 large.
 
 OUR FEDERAL GOVERNMENT. 22 
 
 nies "one people," nor a "nation *de facto," All the r*oo-| 
 colonies did not unite in the appointment, neither as 
 colonies nor by any portion of their people acting in their pri- 
 mary 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 connexion 
 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 "na- 
 
 a revenue, and lay unnecessary restraints and burdens on trade : and of the 
 statutes, parliamentary acts and royal instructions, which make an invidious 
 distinction between his majesty's subjects in Great Britain and America, with 
 full power and authority to concert, agree to and prosecute such legal mea- 
 sures, as in the opinion of the said deputies, so to be assembled, shall be most 
 likely to obtain a repeal of the said acts, and a redress of those grievances. 
 
 [The above extracts are made from the credentials of the deputies of the 
 several colonies, as spread upon the journal of congress, according to a copy of 
 that journal bound (as appears by a gilt label on the back thereof) for the use 
 of the president of congress now in possession of B. Tucker, Esq.] 
 
 It is perfectly clear from these extracts, 1. That the colonies did not consider 
 themselves as " one people," and that they were therefore bound to consider the 
 quarrel of Boston as their own; but that they made common cause with Mas- 
 sachusetts, only because the principles asserted in regard to her, equally affected 
 the other colonies ; 2. That each colony appointed its own delegates, giving 
 them precisely such power and authority as suited its own views ; 3. That no 
 colony gave any power or authority, except for advisement only. 4. That so 
 far from designing to establish " a general or national government." and to 
 form themselves into " a nation de facto" their great purpose was to bring about 
 a reconciliation and harmony with the mother country. This is still farther 
 apparent from the tone of the public addresses of congress. 5. That this con- 
 gress was not " organized un-ier the auspices and with the consent of the peo- 
 ple, acting directly in their primary, sovereign capacity, and without the inter- 
 vention of the functionaries to whom the ordinary powers of government were 
 delegated in the colonies," but, on the contrary, that it was organized by the 
 colonies as such, and generally through their ordinary legislatures ; and always 
 with careful regard to their separate and independent rights and powers. 
 
 If the congress of 1774 was " a general or national government," neither New 
 York nor Georgia was a party to it; for neither of them was represented in that 
 congress. It is also worthy of remark that the congress of 1774 had no agents 
 of its own in foreign countries, but employed those of the several colonies. See 
 the resolution for delivering the address to the king, passed October 25, 1774, 
 and the letter to the agents, approved on the following day.
 
 23 TRUE NATURE AND CHARACTER OF 
 
 tion de facto," and that that body was not "a general or na- 
 tional government," nor a government of any kind -whatever. 
 The existence of such government was absolutely inconsistent 
 with the allegiance which the colonies still acknowledged to the 
 British crown. Our author himself informs us in a passage al- 
 ready 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 rela- 
 tions which the colonies still acknowledged and desired to pre- 
 serve. 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 pro- 
 per.* 
 
 * The journals of congress afford the most abundant and conclusive proofs 
 of this. In order to show the general character of their proceedings it is 
 enough for me to refer to the following : 
 
 On the llth October, 1774, it was "Resolved unanimously, That a memorial 
 be prepared to the people of British America, stating to them the necessity of 
 a firm, united and invariable observation of the measures recommended by the 
 congress, as they tender the invaluable rights and liberties derived to them 
 from the laws and constitution of their country." The memorial was accord- 
 ingly prepared, in conformity with the resolution. 
 
 Congress having previously had under consideration the plan of an associa- 
 tion for establishing non-importation, &c., finally adopted it, October 20, 1774. 
 After reciting thuir grievances, they say, "And, therefore, we do, for ourselves 
 and the inhabitants of the several colonies whom we represent, firmly agree 
 and associate, under the sacred ties of virtue, honor and love of our country, as 
 follows." They then proceed to recommend a certain course of proceeding, 
 such as non-importation and non-consumption of certain British productions, 
 they recommended the appointment of a committee in every county, city and 
 town, to watch their fellow- citizens, in order to ascertain whether or not " any 
 person within the limits of their appointment has violated this association ; :} 
 and if they should find any such, it is their duty to report them, " to the end, 
 that all such foes to the rights of British America may be publicly known, and 
 universally contemned as the enemies of American liberty ; and, thenceforth, we re- 
 spectively will break off all dealings with him or her" They also resolve, that 
 they will " have no trade, commerce, dealings or intercourse whatsoever, with 
 any colony or province in North America, which shall not accede to, or which 
 shall hereafter violate, this association, but will hold them as unworthy of the 
 rights of freemen, and as inimical to the liberties of their country." 
 
 This looks very little like the legislation of the " general or national govern-
 
 OUR FEDERAL GOVERNMENT. 23 
 
 On the 22d October, 1774, this congress dissolved *it- 
 self, having recommended to the several colonies to ap- 
 point 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 for- 
 mer congress. Indeed, it could not have been otherwise; for 
 the relations of the colonies were still unchanged, and any mea- 
 sure establishing " a general or national government," or unit- 
 ing 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 Bri- 
 tish authority. The accession of Georgia to the general associ- 
 ation was not made known till the 20th of July, and her dele- 
 gates did not take their seats till the 13th of September. In 
 the mean time congress had proceeded in the discharge of its 
 duties, and some of its *most important acts, and among r *.-);; -i 
 the rest the appointment of a commander-in-chief of their 
 armies, were performed while those two colonies were unrepre- 
 sented. 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 repre- 
 sented (including New York, which had acceded after the bat- 
 
 ment" of " a nation de facto.'' The most important measures of general concern 
 are rested upon no stronger foundation than " the sacred ties of virtue, honor 
 and the love of our country," and have no higher sanction than public contempt 
 and exclusion from the ordinary intercourse of society!
 
 25 TRUE NATURE AND CHARACTER OF 
 
 tie of Lexington,) were, and of right ought to be, free and 
 independent States.* 
 
 * That the powers granted to the delegates to the second congress were sub- 
 stantially the same with those granted to the delegates to the first, will appear 
 from the following extracts from their credentials. 
 
 New Hampshire. " To consent and agree to all measures, which said con- 
 gress shall deem necessary to obtain redress of American grievances." Dele- 
 gates appointed by a convention. 
 
 Massachusetts. " To concert, agree upon, direct and order" (in concert with 
 the delegates of the other colonies) ' ; such further measures as to them shall 
 appear to be best calculated for the recovery and establishment of American 
 rights and liberties, and for restoring harmony between Great Britain and the 
 colonies." Delegates appointed by provincial congress. 
 
 Connecticut. " To join, consult and advise with the other colonies in British 
 America, on proper measures for advancing the best good of the colonies." 
 Delegates appointed by the colonial house of representatives. 
 
 The colony of New York was not represented in this congress, but delegates 
 were appointed by a convention of deputies from the city and county of New 
 York, the city and county of Albany and the counties of Dutchess, Ulster, 
 Orange, West Chester, King's and Suffolk. They gave their delegates power to 
 " concert and determine upon such measures, as shall be judged most effectual 
 for the preservation and re-establishment of American rights and privileges, 
 and for the restoration of harmony between Great Britain and the colonies." 
 Queen's county approved of the proceeding. 
 
 Pennsylvania. Simply to " attend the general congress." Delegates appoint- 
 ed by provincial assembly. 
 
 New Jersey. " To attend the continental congress and to report their pro- 
 ceedings to the next session'of general assembly." Delegates appointed by the 
 colonial assembly. 
 
 Delaware. " To concert and agree upon such farther measures, as shall 
 appear to them best calculated for the accommodation of the unhappy differ- 
 ences between Great Britain and the colonies on a constitutional foundation, 
 which the house most ardently wish for, and that they report their proceed- 
 ings to the next session of general assembly." Delegates appointed by the 
 assembly. 
 
 Maryland. " To consent and agree to all measures, which said congress 
 shall deem necessary and effectual to obtain a redress of American grievances ; 
 and this province bind themselves to execute, to the utmost of their power, all 
 resolutions which the said congress may adopt." Delegates appointed by con- 
 vention, and subsequently approved by the general assembly. 
 
 Virginia. " To represent this colony in general congress, to be held, &c." 
 Delegates appointed by convention. 
 
 North Carolina. " Such powers as may make any acts done by them, or any 
 of them, or consent given in behalf of this province, obligatory in honor upon 
 every inhabitant thereof." Delegates appointed by convention, and approved 
 in general assembly. 
 
 South Carolina. "To concert, agree to and effectually prosecute such mea- 
 sures, as in the opinion of the said deputies, and the deputies to be assembled,
 
 OUR FEDERAL GOVERNMENT. 25 
 
 It is to be remarked, that no new powers were *con- r*nn -> 
 ferred on congress after the declaration of independence. 
 Strictly speaking, they had no authority to make that declara- 
 tion. They were not appointed for any such purpose, but pre- 
 cisely the reverse ; and although some of them were expressly 
 authorized to agree to it, yet others were not. Indeed, we are 
 informed by Mr. Jeiferson, 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. Rutledge, on 
 the ground that it was premature ; that the people of New York, 
 New Jersey, Maryland and Delaware were not yet ripe for it 7 
 but would *soon unite with the rest, if not indiscreetly [-*9-T-i 
 urged. In venturing 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 gene- 
 ral good. They were, strictly, agents or ministers of indepen- 
 dent States, acting each under the authority and instructions of 
 
 shall be most likely to obtain a redress of American greivances." Delegates 
 appointed by provincial congress. 
 
 In the copy of the Journals of Congress now before me I do not find the cre- 
 dentials of the delegates from Rhode Island. They did not attend at the first 
 meeting of congress, although they did at a subsequent period. Georgia was 
 not represented in this congress until September, 1775. On the 13th May, 
 1775, Lyman Hall appeared as a delegate from the parish of St., Johns, and he 
 was admitted to his seat, " subject to such regulations, as the congress shall 
 determine, relative to his voting." He was never regarded as the representa- 
 tive of Georgia, nor was that colony then considered as a party to the proceed- 
 ings of congress. This is evident from the fact that, in the address to the 
 inhabitants of Great Britain, they use the style, " The twelve United Colonies, 
 by their delegates in congress, to the inhabitants of Great Britain," adopted 
 on the 8th July, 1775. On the 20th of that month congress were notified that 
 a convention of Georgia had appointed delegates to attend them, but none of 
 them took their seats till the 13th September following. They were authorized 
 " to do, transact, join and concur with the several delegates from the other 
 colonies and provinces upon this continent, on all such matters and things as 
 shall appear eligible and fit, at this alarming time, for the preservation and 
 defence of our rights and liberties, and for the restoration of harmony, upon 
 constitutional principles, between Great Britain and America." 
 
 Some of the colonies appointed their delegates only for limited times, at the 
 expiration of which they were replaced by others, but without any material 
 change in their powers. The delegates were, in all things, subject to the orders 
 of their respective i-olonies.
 
 27 TRUE NATURE AND CHARACTER OF 
 
 his own State, and having no power whatever, except what those 
 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 agree- 
 ment, 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 dif- 
 ferent 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. Con- 
 gress had in fact no power of government at all, nor had it that 
 character of permanency which is implied in the idea of govern- 
 ment. It could not pass an obligatory law, nor devise an obli- 
 gatory 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 and valid relations 
 between the colonies, so long as they acknowleged 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 inde- 
 pendent 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 superseded by a higher autho- 
 rity. Every thing 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 re- 
 quire, upon the secure reliance that their acts would be approved 
 and confirmed. In other cases, however, they called for speci- 
 fic grants of power ; and in such cases, each representative 
 applied to his own State alone, and not to any other State or
 
 OUR FEDERAL GOVERNMENT. 7 
 
 people. Indeed, as they *were called into existence by r %9 Q -, 
 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 govern- 
 ment organised by the people." They were elected by subjects 
 of the king of England ; subjects who had ro right, as they 
 themselves admitted, to establish any government whatever; 
 and when those subjects became citizens of independent states, 
 they gave no instructions to establish any such government. 
 The government exercised was, as already remarked, merely a 
 government de facto, and no farther de jure than the subse- 
 quent approval of its acts by the several States made it so. 
 
 This brief review will enable us to determine how far the 
 author is supported in the inferences he has drawn, in the pas- 
 sages last quoted. We have reason to regret that in these, as 
 in many others, he has not been sufficiently specific, either in 
 stating his proposition or in citing his proof. To what people 
 does he allude, when he tells us that the " first general or 
 national government" was organized "by the people?" The 
 first and every recommendation to send deputies to a general 
 congress was addressed to the colonies as such ; in the choice 
 of those deputies each colony acted for itself, without mingling 
 in any way with the people or government of any other col- 
 ony ; and when the deputies met in congress, they voted on all 
 questions of public and general concern by colonies, each col- 
 ony having one vote* whatever was its population or number of 
 deputies. If, then, this government was organized by "the 
 people " at all, it was clearly the people of the several colonies, 
 and not the joint people of all the colonies. And where is the 
 author's warrant for the assertion, that they acted " directly 
 in their primary sovereign capacity, and without the interven- 
 tion of the functionaries, to whom the ordinary powers of 
 government were delegated in the colonies?" He is in most 
 respects a close follower of Marshall, and he could scarcely 
 have failed to see the following passage, which is found in a 
 note in the 168th page of the second volume of the Life of 
 Washington. Speaking of the congress of 1774, Marshall 
 says : " The members of this congress were generally elected 
 by the authority of the colonial legislatures, but in some instan- 
 3
 
 28 TRUE NATURE AND CHARACTER OF 
 
 ces a different system had been pursued. In New Jersey and 
 Maryland the elections were made by committees chosen in the 
 several counties for that particular purpose ; and in New York, 
 where the royal party was very strong, and where it is proba- 
 ble that no legislative act, authorizing an election of members 
 to represent that colony in congress, could have been obtained, 
 the people themselves *assembled in those places, where 
 
 [#OQ ~| 
 -I the spirit of opposition to the claims of parliament pre- 
 vailed, and elected deputies, who were very readily received 
 into congress." Here the general rule is stated to be, that the 
 deputies were elected by the " colonial legislatures," and the 
 instances in which the people acted " directly in their primary, 
 sovereign capacity, without the intervention of the ordinary 
 functionaries of government," are given as exceptions. And 
 even in those cases, in which delegates were appointed by 
 conventions of the people, it was deemed necessary in many 
 instances, as we have already seen, that the appointment 
 should be approved and confirmed by the ordinary legislature. 
 As to New York, neither her people nor her government had so 
 far lost their attachment to the mother country as to concur in 
 any measure of opposition until after the battle of Lexington, 
 in April, 1775 ; and the only representatives which New York 
 had in the congress of 1774 were those of a comparatively 
 small portion of her people. It is well known and, indeed, 
 the author himself so informs us that the members of the 
 congress of 1775 were elected substantially as were those of 
 the preceding congress ; so that there were very few of the 
 colonies, in which the people performed that act in their "pri- 
 mary, sovereign capacity," without the intervention of their 
 constituted authorities. It is of little consequence, however, to 
 the present enquiry, whether the deputies were chosen by the 
 colonial legislatures, as was done in most of the colonies, or by 
 conventions, as was done in Georgia and some others, or by 
 committees appointed for the purpose, as was done in one or 
 two instances, or by the people in primary assemblies, as was 
 done in part of New York. All these modes were resorted to, 
 according as the one or the other appeared most convenient or 
 proper in each particular case. But, whichever mode was 
 adopted, the members were chosen by each colony in and for
 
 OUK FEDERAL GOVERNMENT. 29 
 
 itself, and were the representatives of that colony alone, and 
 not of any other colony, or any nation de facto or de jure. 
 The assertion, therefore, that "the congress thus assembled 
 exercised de facto and de jure a sovereign authority, not as the 
 delegated agents of the governments de facto of the colonies, 
 but in virtue of original powers derived from the people," is, 
 to say the least of it, very bold, in one who had undoubtedly 
 explored all the sources of information upon the subject. Until 
 the adoption of the articles of confederation congress had no 
 " original powers," except only for deliberation and advisement, 
 and claimed no " sovereign authority " whatever. It was an occa- 
 sional, and not a permanent body, or one renewable from time 
 to time. Although they did, in many instances, " exercise 
 de facto " a *power of legislation to a certain extent, yet 
 they never held that power " de jure" by any grant - 
 from the colonies or the people ; and their acts became valid 
 only by subsequent confirmation of them, and not because they 
 had any delegated authority to perform them. The whole his- 
 tory of the period proves this, and not a single instance can be 
 cited to the contrary. The course of the revolutionary govern- 
 ment throughout attests the fact, that, however the people may 
 have occasionally acted, in pressing emergencies, without the 
 intervention of the authorities of their respective colonial gov- 
 ernments, they never lost sight of the fact that they were citi- 
 zens of separate colonies, and never, even impliedly, surrendered 
 that character, or acknowledged a different allegiance. In all 
 the acts of congress, reference was had to the colonies, and 
 never to the people. That body had no power to act directly 
 upon the people, and could not execute its own resolves as to 
 most purposes, except by the aid and intervention of the colo- 
 nial authorities. Its measures were adopted by the votes of 
 the colonies as such, and not by the rule of mere numerical 
 majority, which prevails in every legislative assembly of an 
 entire nation. This fact alone is decisive to prove, that the 
 members were not the representatives of the people of all the 
 colonies, for the judgment of each colony was pronounced by 
 its own members only, and no others had any right to mingle 
 in their deliberations. What, then, was this " sovereign autho- 
 rity ?" What was the nature, what the extent, of its "origi-
 
 gO TRUE NATURE AND CHARACTER OF 
 
 nal powers ?" From -what " people " were those powers derived ? 
 I look in vain for answers to these questions to any historical 
 record which has yet met my view, and have only to regret that 
 the author has not directed me to better guides. 
 
 The author's conclusion is not better sustained by the nature 
 and extent of the powers exercised by the revolutionary govern- 
 ment. It has already been stated, that no original powers of 
 legislation were granted to the congresses of 1774 and 1775 ; 
 and it is only from their acts that we can determine what 
 powers they actually exercised. The circumstances under 
 which they were called into existence precluded the possibility 
 of any precise limitations of their powers, even if it had been 
 designed to clothe them with the functions of government. The 
 colonies were suffering under common oppressions, and were 
 threatened with common dangers, from the mother country. 
 The great object which they had in view was to produce that 
 concert of action among themselves which would best enable 
 them to resist their common enemy, and best secure the safety 
 and liberties of all. Great confidence must necessarily be 
 reposed in public rulers *under circumstances of this sort. 
 ' We may well suppose, therefore, that the revolutionary 
 government exercised every power which appeared to be neces- 
 sary for the successful prosecution of the great contest in which 
 they were engaged ; and we may, with equal propriety, suppose 
 that neither the people nor the colonial governments felt any 
 disposition to scrutinize very narrowly any measure which 
 promised protection and safety to themselves. They knew that 
 the government was temporary only ; that it was permitted only 
 for a particular and temporary object, and that they could at 
 any time recall any and every power which it had assumed. It 
 would be a violent and forced inference, from the powers of such 
 an agency, (for it was not a government, although I have some- 
 times, for convenience, called it so,) however great they might 
 be. to say that the people, or States, which established it, meant 
 thereby to merge their distinctive character, to surrender all 
 the rights and privileges which belonged to them as separate 
 communities, and to consolidate themselves into one nation. 
 
 In point of fact, however, there was nothing in the powers 
 exercised by the revolutionary government, so far as they can
 
 OUR FEDERAL GOVERNMENT. 31 
 
 be known from their acts, inconsistent with the perfect sover- 
 eignty and independence of the States. These were always ad- 
 mitted in terms, and were never denied in practice. So far as 
 external relations were concerned, congress seems to have exer- 
 cised every power of a supreme government. They assumed 
 the right to " declare war and to make peace ; to authorize 
 captures ; to institute appellate prize courts ; to direct and 
 control all national, military and naval operations; to form alli- 
 ances and make treaties; to contract debts and issue bills of 
 credit on national account." These powerswere not "exclusive," 
 however, as our author supposes. On the contrary, troops were 
 raised, vessels of war were commissioned, and various military 
 operations were conducted by the colonies, on their own separate 
 means and authority. T^conderoga was taken by the troops of 
 Connecticut before the declaration of independence ; Massa- 
 chusetts and Connecticut fitted out armed vessels to cruise 
 against those of England, in October, 1775 ; South Carolina 
 soon followed their example. In 1776, New Hampshire author- 
 ized her executive to issue letters of marque and reprisal. 
 
 These instances are selected out of many, as sufficient to show 
 that in the conduct of war congress possessed no "exclusive" 
 power, and that the colonies (or States) retained, and actually 
 asserted, their own sovereign right and power as to that matter. 
 And r ot as to that matter alone, for New Hampshire established 
 post offices. The words of our author may, indeed, import that 
 the power of congress over the *subject of war was 
 "exclusive" only as to such military and naval opera- L 
 tions as he considers national, that is, such as were undertaken 
 by the joint power of all the colonies ; and, if so, he is correct. 
 But the comma after the word " national " suggests a different 
 interpretation. At all events, the facts which I have mentioned 
 prove that congress exercised no power which was considered 
 as abridging the absolute sovereignty and independence of the 
 States. 
 
 Many of those powers which, for greater convenience, were 
 entrusted exclusively to congress, could not be effectually ex- 
 erted except by the aid of the State authorities. The troops 
 required by congress were raised by the States, and the com- 
 missions of their officers were countersigned by the governors of
 
 32 TRUE NATURE AND CHARACTER OF 
 
 the States. Congress were allowed to issue bills of credit, but 
 they could not make them a legal tender, nor punish the counter- 
 feiter of them. Neither could they bind the States to redeem 
 them, nor raise by their own authority the necessary funds for 
 that purpose. Congress received ambassadors and other public 
 ministers, yet they had no power to extend to them that pro- 
 tection which they receive from the government of every sove- 
 rei<m nation. A man by the name of De Longchamps entered 
 the house of the French minister plenipotentiary in Philadelphia, 
 and there threatened violence to the person of Francis Barbe 
 Marbois, secretary of the French legation, consul general of 
 France, and consul for the state of Pennsylvania ; he after- 
 wards assaulted and beat him in the public street. For this 
 offence, he was indicted and tried in the court of Oyer and Ter- 
 miner of Philadelphia, and punished under its sentence. The 
 case turned chiefly upon the law of nations, with reference to the 
 protection which it secures to foreign ministers. A question 
 was made, whether the authorities of Pennsylvania should not 
 deliver up De Longchamps to the French government to be 
 dealt with at their pleasure. It does not appear that the federal 
 government was considered to possess any power over the sub- 
 ject, or that it was deemed proper to invoke its counsel or 
 authority in any form. This case occurred in 1784, after the 
 adoption of the articles of confederation ; but if the powers of 
 the federal government were less under those articles than 
 before, it only proves that, however great its previous powers 
 may have been, they were held at the will of the States, and 
 were actually recalled by the articles of confederation. Thus 
 it appears that, in the important functions of raising an army, 
 of providing a public revenue, of paying public debts, and giving 
 security to the persons of foreign ministers, the boasted " sove- 
 reignty " of the federal government was merely nominal, and 
 owed its entire *efficiency to the co-operation and aid 
 of the State governments. Congress had no power to 
 coerce those governments; nor could it exercise any direct 
 authority over their individual citizens. 
 
 Although the powers actually assumed and exercised by con- 
 gress were certainly very great, they were not always acquiesced 
 in, or allowed, by the States. Thus, the power to lay an em-
 
 OUR FEDERAL GOVERNMENT. 33 
 
 bargo was earnestly desired by them, but was denied by the 
 States. And in order the more clearly to indicate that many 
 of their powers were exercised merely by sufferance, and at the 
 same time time to lend a sanction to their authority so far as 
 they chose to allow it, it was deemed necessary, by at least one 
 of the States, to pass laws indemnifying those who might act in 
 obedience to the resolutions of that body.* 
 
 A conclusive proof, however, of the true relation which the 
 colonies held to the revolutionary government, even in the 
 opinion of congress itself, is furnished by their own journals. 
 In June, 1776, that body recommended the passing of laws for 
 the punishment of treason ; and they declare that the crime 
 shall be considered as committed against the colonies indivi- 
 dually, and not against them all, as united or confederated to- 
 gether. This could scarcely have been so, if they had consid- 
 ered themselves "a government de facto and de jure," clothed 
 with "sovereign authority." The author, however, is not satis- 
 fied to rest his opinion upon historical facts ; he seeks also to 
 fortify himself by a judicial decision. He informs us that, 
 "soon after the organization of the present government, the 
 question [of the powers of the continental congress] was most 
 elaborately discussed before the supreme court of the United 
 States, in a case calling for an exposition of the appellate juris- 
 diction of congress in prize causes, before the ratification of the 
 confederation. The result of that examination was, that con- 
 gress before the confederation possessed, by the consent of the 
 people of the United States, sovereign and supreme powers for 
 national purposes ; and, among others, the supreme powers of 
 peace and war, and, as an incident, the right of entertaining 
 appeals in the last resort, in prize causes, even in opposition to 
 State legislation. And that the actual powers exercised by 
 congress, in respect to national objects, furnished the best expo- 
 sition of its constitutional authority, since they emanated from 
 the people, and were acquiesced in by the people" 
 
 There is in this passage great want of accuracy, and per- 
 haps some want of candor. The author, as usual, neglects to 
 cite the judicial *decision to which he alludes, but it must 
 be the case of Penhallow and others against Doane's *- 
 * This was done by Pennsylvania. See 2 Dallas, Col.L. of Penn. 3.
 
 g4 TRUE NATURE AND CHARACTER OF 
 
 administrators. (3 Dallas' Reports, 54.) Congress, in Novem- 
 ber, 1775, passed a resolution, recommending to the several 
 colonies to establish prize courts, with a right of appeal from 
 their decisions to congress. In 1776, New Hampshire accord- 
 ingly passed a law upon the subject, by which ai appeal to 
 congress was allowed in cases of capture by vessels in the ser- 
 vice of the united colonies ; but where the capture was made by 
 " a vessel in the service of the united colonies and of any par- 
 ticular colony or person together," the appeal was allowed to the 
 superior court of New Hampshire. The brigantine Susanna 
 was captured by a vessel owned and commanded by citizens of 
 New Hampshire, and was duly condemned as prize by her own 
 court of admiralty. An ?ppeal was prayed to congress and 
 denied ; and thereupon an appeal to the superior court of 
 New Hampshire was prayed and allowed. From the decision 
 of this court ari appea' was taken to congress, in the mode pre- 
 scribed by their resolution, and the case was disposed of by the 
 court of appeals, appointed by congress to take cognizance of 
 such cases. After the adoption of the present constitution and 
 the organization of the judiciary system urder it, a libel was 
 filed in the district court of New Hampshire, to carry into effect 
 the sentence of the court of appeals above-mentioned. The 
 cause being legally transferred to the circuit court, was decided 
 there, and an appeal allowed to the supreme court. That court, 
 in its decision, sustains the jurisdiction of the court o c appeals 
 established by congress. Mr. Justice Patterson's opinion is 
 founded mainly upon these grounds : That the powers actually 
 exercised by congress ought to be considered as legitimate, be- 
 cause they were such as the occasion absolutely required, and were 
 approved and acquiesced in by "the people;" that the authority 
 ultimately and finally to decide on all matters and questions 
 touching the law of nations does reside and is vested in the sove- 
 reign supreme power of war and peace ; that this power was 
 lodged in the continental congress by the consent and acquies- 
 cence of " the people;" that the legality of all captures on the 
 high seas must be determined by the law of nations ; that New 
 Hampshire had committed herself upon this subject by voting in 
 favor of the exercise of the same power by congress in the case 
 of the brig Active ; that as the commission, under which the
 
 OUR FEDERAL GOVERNMENT. 34 
 
 capture in the case under consideration was made, was issued 
 by congress, it resulted, of necessity, that the validity of all 
 captures made by virtue of that commission should be judged of 
 by congress, or its constituted authority, because "every one 
 must be amenaVe to the *authority under which he 
 acts." It is evident that this op ; nion, while it sustains 
 the authority of congress in the particular case, does not prove 
 its general supremacy, nor that the States had surrendered to 
 it any part of their sovereignty and independence. On the 
 contrary, it affirms that the " sovereign and supreme power of 
 war and peace " was assumed by congress, and that the exer- 
 cise of it became legitimate, only because it was approved and 
 acquiesced in ; and that being thus legitimated, the appellate 
 jurisdiction in prize cases followed as a recessary incident. All 
 the powers, which Patterson contends for as exercised by con- 
 gress, may well be conceded, without in the slightest degre^f 
 affecting the question before us ; they were as consistent with 
 the character of a federative, as with that of a consolidated 
 government. He does not tell us to what people he alludes, 
 when he says that the powers exercised by congress were ap- 
 proved and ratified by " the people." He does not, in any part 
 of his opinion, authorize the idea of the author, that " congress 
 possessed, before the confederation, by the consent of the people 
 of the United States, sovereign and supreme powers for national 
 purposes." On the contrary, as to one of those powers, he 
 holds the opposite language ; and therefore it is fair to presume, 
 that he intended to be so understood in regard to all the rest. 
 This is his language : " The authority exercised by congress, 
 in granting commissions to privateers, was approved and ratified 
 by the several colonies or states, because they received and filled 
 up the commissions and bonds, and returned the latter to con- 
 gress." This approval and ratification alone rendered, in his 
 opinion, the exercise of this, and other similar powers assumed 
 by congress, legitimate. 
 
 Judge Iredell, in delivering his opinion, goes much more fully 
 into the examination of the powers of the revolutionary govern- 
 ment. He thinks that, as the power of peace and war was 
 entrusted to congress, they held, as a necessary incident, the 
 power to establish prize courts ; and that whatever powers they
 
 35 TRUE NATURE AND CHARACTER OF 
 
 did in fact exercise, were acquiesced in and consented to, and, 
 consequently, legitimated and confirmed. But he leaves no 
 room to doubt as to the source whence this confirmation was 
 derived. After proving that the several colonies were, to all 
 intents and purposes, separate and distinct, and that they did 
 not form "one people" in any sense of the term, he says, "if 
 congress, previous to the articles of confederation, possessed any 
 authority, it was an authority, as I have shown, derived from 
 the people of each province, in the first instance." "The au- 
 thority was not possessed by congress, unless given by all the 
 States." "I conclude, therefore, that every particle of au- 
 thority, which originally resided either in *congress or 
 -" in any branch of the State governments, was derived from 
 the people who were permanent inhabitants of each province, in 
 the first instance, and afterwards became citizens of each State ; 
 that this authority was conveyed by each body politic separately, 
 and not by all the people in the several provinces or states 
 jointly." No language could be stronger than this, to disaffirm 
 the author's conclusion, that the powers exercised by congress 
 were exercised " by the consent of the people of the United 
 States." Certainly, Iredell did not think so. 
 
 The other two judges, Blair and Gushing, affirm the general 
 propositions upon which Paterson and Iredell sustained the 
 power of congress in the particular case, but lend no support to 
 the idea of any such unity among the people of the several 
 colonies or states, as our author supposes to have existed. 
 Gushing, without formally discussing the question, expressly 
 says that "he has no doubt of the sovereignty of the States." 
 
 This decision, -then, merely affirms, what no one has ever 
 thought of denying, that the revolutionary government exercised 
 every power which the occasion required ; that, among these, 
 the powers of peace and war were most important, because con- 
 gress, alone, represented all the colonies, and could, alone, ex- 
 press the general will, and wield the general strength ; that 
 wherever the powers of peace and war are lodged, belongs also 
 the right to decide all questions touching the laws of nations ; 
 that prize causes are of this character ; and, finally, that all 
 these powers were not derived from any original grant, but are 
 to be considered as belonging to congress, merely because con-
 
 OUK FEDERAL GOVERNMENT. 36 
 
 gress exercised them, and because they were sustained in so 
 doing by the approbation of the several colonies or states, whose 
 representatives they were. Surely, then, our author was neither 
 very accurate nor very candid, in so stating this decision as to 
 give rise to the idea that, in the opinion of the supreme court, 
 congress possessed original sovereign powers, by the consent of 
 "the people of the United States." Even, however, if the 
 court had so decided, in express terms, it would have been of no 
 value in the present enquiry, as will by-and-by be shown. 
 
 The examination of this part of the subject has probably been 
 already drawn out to too great an extent ; but it would not be 
 complete without some notice of another ground, upon which 
 our author rests his favorite idea that the people of the colo- 
 nies formed "one people," or nation. Even if this unity was 
 not produced by the appointment of the revolutionary govern- 
 ment, or by the nature of the powers exercised by them, and 
 acquiesced in by the people, he thinks there can *be no 
 doubt that this was the necessary result of the declara- L 
 tion of independence. In order that he may be fully under- 
 stood upon this point, I will transcribe the entire passage 
 relating to it. 
 
 "In the next place, the colonies did not severally act for 
 themselves, and proclaim their own independence. It is true 
 that some of the States had previously formed incipient govern- 
 ments for themselves ; but it was done in compliance with the 
 recommendations of congress. Virginia, on the 29th of June, 
 1776, by a convention of delegates, declared 'the government 
 of this country, as formerly exercised under the crown of Great 
 Britain, totally dissolved,' and proceeded to form a new con- 
 stitution of government. New Hampshire also formed a new 
 government, in December, 1775, which was manifestly intended 
 to be temporary, 'during (as they said) the unhappy and un- 
 natural contest with Great Britain.' New Jersey, too, esta- 
 blished a frame of government, on the 2d July, 1776 ; but it 
 was expressly declared that it should be void upon a reconcilia- 
 tion with Great Britain. And South Carolina, in March, 1776, 
 adopted a constitution of government: but this was in like 
 manner 'established until an accommodation between Great 
 Britain and America could be obtained.' But the declaration
 
 37 TRUE NATURE AND CHARACTER OF 
 
 of the independence of all the colonies was the united act of all. 
 It was ' a declaration by the representatives of the United States 
 of America, in congress assembled;' 'by the delegates appointed 
 by the good people of the colonies,' as, in a prior declaration of 
 rights, they were called. It was not an act done by the State 
 governments then organized, nor by persons chosen by them. 
 It was emphatically the act of the whole people of the united 
 colonies, by the instrumentality of their representatives, chosen 
 for that, among other purposes. It was an act not competent 
 to the State governments, or any of them, as organized under 
 their charters, to adopt. Those charters neither contemplated 
 the case nor provided for it. It was an act of original, inherent 
 sovereignty by the people themselves, resulting from their right 
 to change the form of government, and to institute a new 
 government, whenever necessary for their safety and happiness. 
 So the declaration- of independence treats it. No State had 
 presumed, of itself, to form a new government, or provide for 
 the exigencies of the times, without consulting congress on the 
 subject ; and when they acted, it was in pursuance of the re- 
 commendation of congress. It was, therefore, the achievement 
 of the whole, for the benefit of the whole. The people of the 
 united colonies made the united colonies free and independent 
 states, and absolved them from allegiance to the British crown. 
 The declaration of independence has, accordingly, always 
 *been treated as an act of paramount and sovereign au- 
 thority, complete and perfect per se ; and ipso facto 
 working an entire dissolution of all political connexion with, 
 and allegiance to, Great Britain. And this, not merely as a 
 practical fact, but in a legal and constitutional view of the 
 matter by courts of justice." 
 
 The first question which this passage naturally suggests to 
 the mind of the reader is this : if two or more nations or people, 
 confessedly separate, distinct and independent, each having its 
 own peculiar government, without any "direct political con- 
 nexion with each other," yet owing the same allegiance to one 
 common superior, should unite in a declaration of rights which 
 they believed belonged to all of them alike, would that circum- 
 stance, alone, make them "one people?" Stripped of the cir- 
 cumstances with which the author has surrounded it, this is, at
 
 OUR FEDERAL GOVERNMENT. 38 
 
 last, the only proposition involved. If Spain, Naples and Hol- 
 land, while they were "dependencies" of the imperial crown of 
 France, had united in declaring that they were oppressed, in 
 the same mode and degree, by the measures of that crown, and 
 that they did, for that reason, disclaim all allegiance to it, and 
 assume the station of "free and independent states," would they 
 thereby have become one people ? Surely this will not be as- 
 serted by any one. We should see, in that act, nothing more 
 than the union of several independent sovereignties, for the 
 purpose of effecting a common object, which each felt itself too 
 weak to effect, alone. Nothing would be more natural, than 
 that nations so situated should establish a common military 
 power, a common treasury, and a common agency, through 
 which to carry on their intercourse with other powers ; but that 
 all this should unite them together, so as to form them into one 
 nation, is a consequence not readily perceived. The case here 
 supposed is precisely that of the American colonies, if those 
 colonies were, in point of fact, separate, distinct, and indepen- 
 dent of one another. If they were so, (and I think it has been 
 shown that they were,) then the fact that they united in the 
 declaration of independence does not make them " one people," 
 any more than a similar declaration would have made Spain, 
 Naples and Holland one people ; if they were not so, then they 
 were one people already, and the declaration of independence 
 did not render them either more or less identical. It is true, 
 the analogy here supposed does not hold in every particular ; 
 the relations of the colonies to one another were certainly closer, 
 in many respects, than those of Spain, Naples and Holland, to 
 one another. But as to all purposes involved in the present 
 enquiry, the analogy is perfect. The effect attributed to the 
 declaration of independence presupposes that the *colo- 
 nies were not "one people" before; an effect which is in *- 
 no manner changed or modified by any other circumstance in 
 their relation to one another. That fact, alone, is necessary to 
 be enquired into ; and until that fact is ascertained, the author's 
 reasoning as to the effect of the declaration of independence, in 
 making them "one people," does not apply. He is obliged, 
 therefore, to abandon the ground previously taken, to wit, that 
 the colonies were one people before the declaration of indepen-
 
 39 TRUE NATURE AND CHARACTER OF 
 
 dence. And having abandoned it, he places the colonies, as to 
 this question, upon the footing of any other separate and dis- 
 tinct nations ; and, as" to these, it is quite evident that the 
 conclusion which he has drawn, in the case of the colonies, could 
 not be correct, unless it would be equally correct in the case of 
 Spain, Naples and Holland, above supposed. 
 
 The mere fact, then, that the colonies united in the declara- 
 tion of independence, did not necessarily make them one people. 
 But it may be said that this fact ought, at least, to be received 
 as proof that they considered themselves as one people already. 
 The argument is fair, and I freely let it go for what it is worth. 
 The opinion of the congress of 1775, whatever it may have 
 been, and however strongly expressed, could not possibly change 
 the historical facts. It depended upon those facts, alone, 
 whether the colonies were one people or not. They might by 
 their agreement, expressed through their agents in congress, 
 make themselves one people through all time to come ; but 
 their power, as to this matter, could not extend to the time 
 past. Indeed, it is contended, not only by our author, but by 
 others, that the colonies did, by and in that act, agree to become 
 " one people " for the future. They suppose that such agree- 
 ment is implied, if not expressed, in the following passages. 
 ""We, therefore, the representatives of the United States of 
 America," " do, in the name and by the authority of the good 
 people of these colonies, solemnly publish and declare that 
 these united colonies are, and of right ought to be, free and 
 independent states." Let us test the correctness of this opinion, 
 by the history of the time, and by the rules of fair criticism. 
 
 The congress of 1775, by which independence was declared, 
 was appointed, as has been before shown, by the colonies in 
 their separate and distinct capacity, each acting for itself, and 
 not conjointly with any other. They were the representatives, 
 each of his own colony, and not of any other ; each had authority 
 to act in the name of his own colony, and not in that of any 
 other ; each colony gave its own vote by its own representa- 
 tives, and not by those of any other colony. Of course, it was 
 r*4.ni as se P arate an< ^ distinct colonies that they ^deliberated 
 J on the declaration of independence. When, therefore, 
 they declare, in the adoption of that measure, that they act as
 
 OUR FEDERAL GOVERNMENT. 40 
 
 "the representatives of the United States of America/' and 
 " in the name and by the authority of the good people of these 
 colonies," they must of course be understood as speaking in the 
 character in which they had all along acted ; that is, as the repre- 
 sentatives of separate and distinct colonies, and not as the joint re- 
 presentatives of any one people. A decisive proof of this is found 
 in the fact that the colonies voted on the adoption of that measure 
 in their separate character, each giving one vote by all its own 
 representatives, who acted in strict obedience to specific instruc- 
 tions from their respective colonies, and the members signed 
 the declaration in that way. So, also, when they declared that 
 " these united colonies are, and of right ought to be, free and 
 independent states," they meant only that their respective 
 communities, which until then had been dependent colonies, 
 should thereafter be independent states, and that the same 
 union, which existed between them as colonies, should be con- 
 tinued between them as states. The measure under considera- 
 tion looked only to their relation to the mother country, and 
 not to their relation to one another; and the sole question 
 before them was, whether they should continue in a state of 
 dependence on the British crown, or not. Having determined 
 that they would not, they from that moment ceased to be colo- 
 nies, and became states ; united, precisely as before, for the 
 common purpose of achieving their common liberty. The idea 
 of forming a closer union, by the mere act of declaring them- 
 selves independent, could scarcely have occurred to any one of 
 them. The necessity of such a measure must have been ap- 
 parent to all, and it had long before engaged their attention in 
 a different form. Men, of their wisdom and forecast, meditating 
 a measure so necessary to their common safety, would not have 
 left it as a mere matter of inference from another measure. In 
 point of fact, it was already before them, in the form of a dis- 
 tinct proposition, and had been so ever since their first meeting 
 in May, 1775.* It is impossible to suppose *therefore, rs( ., 1 -, 
 in common justice to the sagacity of congress, that they *- 
 
 * A document which I have not met with elsewhere, but which maybe found 
 in the Appendix to Professor Tucker's elaborate and instructive Life of Jeffer- 
 son, affords important evidence upon this point. As early as May, 1775, the 
 plan of a " confederation and perpetual union " among the colonies, was pre-
 
 41 TRUE NATURE AXD CHARACTER OF 
 
 meant any thing more by the declaration of independence, than 
 simply to sever the tie which had theretofore bound them to 
 England, and to assert the rights of the separate and distinct 
 colonies, as separate and independent States; particularly as 
 the language which they use is fairly susceptible of this con- 
 struction. The instrument itself is entitled, "the unanimous 
 declaration of the thirteen United States of America;" of States, 
 separate and distinct bodies politic, and not of "one people" 
 or nation, composed of all of them together; "united," as in- 
 dependent States may be, by compact or agreement, and not 
 amalgamated, as they would be, if they formed one nation or 
 body politic. 
 
 Is it true then, as the author supposes, that the " colonies 
 did not severally act for themselves, and proclaim their own in- 
 dependence?" It is true that they acted together; but is it not 
 equally true that each acted for itself alone, without pretending 
 to any right or authority to bind any other ? Their declaration 
 was simply their joint expression of their separate wills ; each 
 expressing its own will, and not that of any other; each bound 
 by its own act, and not responsible for the act of any other. 
 If the colonies had severally declared their independence through 
 
 pared and proposed for adoption. It was not in fact adopted, but its provi- 
 sions show, in the strongest manner, in what light the colonies regarded their 
 relation to one another. The proposed union was called " a firm league of 
 friendship ;" each colony reserved to itself " as much as it might think proper 
 of its own present laws, customs, rights, privileges and peculiar jurisdictions, 
 within its own limits ; and may amend its own constitution as may seem best 
 to its own assembly or convention ;' : the external relations of the colonies were 
 to be managed by their general government alone, and all amendments of their 
 ; ' constitution," as they termed it, were to be proposed by congress and " ap- 
 proved by a majority of the colony assemblies." It can scarcely be contended 
 that this " league of friendship," this " cenfederation and perpetual union," 
 would, if it had been adopted, have rendered the people of the several colonies 
 less identical than they were before. If, in their own opinion, they were " one 
 people" already, no league or confederation was necessary, and no one would 
 have thought of proposing it. The very fact, therefore, that it was proposed, 
 as a necessary measure " for their common defence against their enemies, for 
 the security of their liberties and their properties, the safety of their persons 
 and families, and their mutual and general welfare," proves that they did not 
 consider themselves as already " one people," in any sense or to any extent 
 which would enable them ;o effect those important objects. 
 
 This proposition was depending and undetermined at the time of the declara- 
 tion of independence.
 
 OUR FEDERAL GOVERNMENT. 41 
 
 their own legislatures, and had afterwards agreed to unite their 
 forces together to make a common cause of their contest, and to 
 submit their common interests to the management of a common 
 council chosen by themselves, wherein would their situation 
 have been different ? And is it true that this declaration of in- 
 dependence "was not an act done by the State governments 
 then organized, nor by persons chosen by them?" that "it was 
 emphatically the act of the whole people of the united colonies, by 
 the instrumentality of *their representatives chosen for that 
 among other purposes ?" What representatives were those *- 
 that were chosen by "the people of the united colonies? When and 
 how were they chosen ? Those who declared the colonies indepen- 
 dent were chosen more than a year before that event ; they were 
 chosen by the colonies separately, and, as has already been 
 shown, through the instrumentality of their own "governments 
 then organized;" they were chosen, not for the "purpose" of 
 declaring the colonies independent, but of protecting them 
 against oppression, and bringing about a reconciliation with the 
 parent country, upon fair terms, if possible. (Jefferson's Notes, 
 1st ed. 128, 129.) If there were any other representatives than 
 these concerned in the declaration of independence, if that act 
 was performed by representatives chosen by "the whole people 
 of the colonies;" for that or any other purpose, if any such re- 
 presentatives could possibly have been chosen by the colonies as 
 then organized, no historical record, that has yet met my view, 
 contains one syllable of the matter. 
 
 The author seems to attach but little importance to the fact, 
 that several of the colonies had established separate govern- 
 ments for themselves, prior to the declaration of independence. 
 He regards this as of little consequence ; because he thinks that 
 the colonies so acted only in pursuance of the recommendation 
 of congress, and would not have "presumed" to doit, "with- 
 out consulting congress upon the subject;" and because the 
 governments so established were, for the most part, designed to 
 be temporary, and to continue only during the contest with 
 England. Such recommendation was given in express terms, 
 to New Hampshire and South Carolina, in November, 1775, 
 and to Virginia, in December of that year ; and on the 10th 
 May, 1776, "it was resolved to recommend to the respective 
 4
 
 42 TRUE NATURE AND CHARACTER OF 
 
 assemblies and conventions of the united colonies where no 
 government sufficient to the exigencies of their affairs had been 
 established, to adopt such a government as should, in the opinion 
 of the representatives of the people, best conduce to the happi- 
 ness and safety of their constituents in particular, and of 
 America in general." The preamble to this resolution was not 
 adopted till the 15th May. (1 Elliott's Debates, 80, 83.) It 
 is evident, from the language here employed, that congress 
 claimed no power over the colonies as to this matter, and no 
 right to influence or control them in the exercise of the impor- 
 tant function of forming their own governments. It recom- 
 mended only; and, contemplating the colonies as separate and 
 distinct, referred it to the assembly or convention of each, to 
 establish any form of government which might be acceptable to 
 its own people. Of what consequence was it, *whether 
 -" the colonies acted upon the recommendation and advice 
 of others, or merely upon their own will and counsels ? With 
 whatever motive the act was performed, it was one of supreme 
 and sovereign power, and such as could not have been performed 
 except by a sovereign people. And whether the government so 
 established was intended to last for ever, or only for a limited 
 time, did not affect its character as an act of sovereign power. 
 In point of fact, then, the colonies which established such gov- 
 ernments did, by that very act, assert their sovereignty and in- 
 dependence. They had no power, under their charters, to 
 change their governments. They could do so only by setting 
 their charters aside, and acting upon their inherent, sovereign 
 right : and this was revolution. In effect, therefore, many of 
 the colonies had declared their independence prior to the 4th 
 July, 1776 ; they had commenced the revolution, and were con- 
 sidered by England as in a state of rebellion. Of Virginia this 
 is emphatically true. Her declaration of rights was made on 
 the 12th of June, 1776; and her constitution was adopted on 
 the 29th of the same month. This constitution continued until 
 1829. Her subsequent declaration of independence, on the 4th 
 of July, in common with the other colonies, was but a more 
 public, though not a more solemn affirmation of what she had 
 previously done ; a pledge to the whole world, that what she had 
 resolved on in her separate character, she would unite with the
 
 OUR FEDERAL GOVERNMENT. 43 
 
 other colonies in performing. She could not declare herself 
 free and independent more distinctly, in that form, than she had 
 already done, by asserting her sovereign and irresponsible power, 
 in throwing off her former government, and establishing a new 
 one for herself.* 
 
 * In point of fact, Virginia declared her independence on the 15th of May, 
 1776. The following beautiful allusion to that scene is extracted from an ad- 
 dress delivered by Judge Beverly Tucker, of William and Mary College, before 
 the Petersburg Lyceum, on the 15th May, 1839. 
 
 " That spectacle, on this day sixty-three years, Virginia exhibited to the 
 world ; and the memory of that majestic scene it is now my task to rescue from 
 oblivion. It was on that day that she renounced her colonial dependence on 
 Great Britain, and separated herself forever from that kingdom. Then it wag 
 that, bursting the manacles of a foreign tyranny, she, in the same moment, im- 
 posed upon herself the salutary restrains of law and order. In that moment she 
 'commenced the work of forming a government, complete within itself; and 
 having perfected that work, she, on the 29th of June in the same year, performed 
 the highest function of independent sovereignty, by adopting, ordaining and 
 establishing the constitution under which all of us were born. Then it was 
 that, sufficient to herself for all the purposes of government, she prescribed 
 that oath of fealty and allegiance to her sole and separate sovereignty, which 
 all of us, who have held any office under her authority, have solemnly called 
 upon the Searcher of hearts to witness and record. In that hour, gentlemen, 
 it could not be certainly known, that the other colonies would take the same 
 decisive step. It was, indeed, expected. In the same breath in which she had 
 declared her own independence, Virginia had advised it. She had instructed 
 her delegates in the general congress to urge it; and it was by the voice of one 
 of her sons, whose name will ever proudly live in her history, that the word of 
 power was spoken, at which the chain that bound the colonies to the parent 
 kingdom fell asunder, 'as flax that severs at the touch of fire.' But even then 
 and while the terms of the general declaration of independence were yet un- 
 settled, hers had already gone forth. The voice of her defiance was already 
 ringing in the tyrant's ears ; hers was the cry that summoned him to the strife ; 
 hers was the shout that invited his vengeance: 'Me! me! Adsum qui fed; in 
 me, convertite ferrum.' " 
 
 This beautiful address, abounding in patriotic sentiments, and sound politi- 
 cal doctrines, clothed in the richest language, ought to be in the hands of every 
 citizen, and particularly of those of Virginia. The following extract from the 
 Journals of the Convention, containing the history of this interesting event, 
 cannot fail to be acceptable to every American reader. 
 
 " Wednesday, May 15th, 1776. 
 
 " The convention, then, according to the order of the day, resolved itself into 
 a committee on the state of the colony ; and, after some time spent therein, Mr. 
 President resumed the chair, and Mr. Gary reported that the committee had, 
 according to order, had under their consideration the state of the colony, and 
 had come to the following resolutions thereupon ; which he read in his place,
 
 43 TRUE NATURE AND CHARACTER OF 
 
 There is yet another view of this subject, which *can- 
 J not be properly omitted. It has already been shown that, 
 
 and afterwards delivered in at the clerk's table, where the same were again 
 twice read, and unanimously agreed to, one hundred and twelve members being 
 present. 
 
 " For as much as all the endeavors of the united colonies, by the most decent 
 representations and petitions to the king and parliament of Great Britain, to 
 restore peace and security to America under the British government, and a re- 
 union with that people, upon just and liberal terms, instead of a redress of 
 grievances, have produced, from an imperious and vindictive administration, 
 increased insult, oppression, and a vigorous attempt to effect our total destruc- 
 tion. By a late act, all these colonies are declared to be in rebellion, and out 
 of the protection of the British crown, our properties subjected to confiscation, 
 our people, when captivated, compelled to join in the plunder and murder of 
 their relations and countrymen, and all former rapine and oppression of Ameri- 
 cans declared legal and just. Fleets and armies are raised, and the aid of 
 foreign troops engaged to assist these destructive purposes. The king's repre- 
 sentative in this colony hath not only withheld all the powers of government 
 from operating for our safety, but. having retired on board an armed ship, is 
 carrying on a piratical and savage war against us, tempting our slaves by every 
 artifice to resort to him, and training and employing them against their 
 masters. 
 
 "In this state of extreme danger, we have no alternative left, but an abject 
 submission to the will of those overbearing tyrants, or a total separation from 
 the crown and government of Great Britain, uniting and exerting the strength of 
 all America for defence, and forming alliances with foreign powers for commerce 
 and aid in war. Wherefore, appealing to the Searcher of all hearts for the sin- 
 cerity of former declarations, expressing our desire to preserve our connexion 
 with that nation, and that we are driven from that inclination by their wicked 
 councils, and the eternal laws of self-preservation ; resolved, unanimously, that 
 the delegates appointed to represent this colony in general congress, be in- 
 structed to propose to that respectable body, to declare the united colonies free 
 and independent slates, absolved from all allegiance to, or dependence upon the 
 crown or parliament of Great Britain ; and that they give the assent of this 
 colony to that declaration, and to whatever measures may be thought proper 
 and necessary by the congress, for forming foreign alliances, and a confederation 
 of the colonies, at such time and in such manner as to them may seem best. Pro- 
 vided, that the power of forming government for, and the regulations of the in- 
 ternal concerns of each colony be left to the respective colonial legislatures. 
 
 " Resolved, unanimously, that a committee be appointed to prepare a declara- 
 tion of rights, and such a plan of government, as will be most likely to main- 
 tain peace and order in this colony, and secure substantial and equal liberty to 
 the people. 
 
 " And a committee was appointed of the following gentlemen : Mr. Archi- 
 bald Cary, Mr. Meriwether Smith, Mr. Mercer, Mr. Henry Lee, Mr. Treasurer, 
 Mr. Henry, Mr. Dandridge, Mr. Edmund Randolph, Mr. Gilmer, Mr. Bland, Mr. 
 Digges. Mr. Carrington, Mr. Thomas Ludwel Lee. Mr. Cabell, Mr. Jones, Mr.
 
 OUR FEDERAL GOVERNMENT. 44 
 
 prior to the revolution, *the colonies were separate and 
 distinct, and were not, in any political sense, or for any * 
 purpose of government, "one people." The sovereignty over 
 them was in the British crown ; but that sovereignty was not 
 jointly over all, but separately over each, and might have been 
 abandoned as to some, and retained as to others. The declara- 
 tion of independence broke this connexion. By that act, and 
 not by the subsequent recognition of their independence, the 
 colonies became free States. What then became of the sove- 
 reignty of which we speak ? It could not^ be in abeyance ; the 
 moment it was lost by the British crown it must have vested 
 somewhere else. Doubtless it vested in the states themselves. 
 But, as they were separate and distinct as colonies, the sove- 
 reignty over one could not vest, either in whole or in part, in 
 any other. Each took to itself that sovereignty which applied 
 to itself, and for which alone it had contended with the British 
 crown, to wit, the sovereignty over itself. Thus each colony 
 became a free and sovereign State. This is the character which 
 they claim in the very terms of the declaration of indepen- 
 dence ; in this character they formed the * colonial gov- 
 eriynent, and in this character that government always *- 
 regarded them. Indeed, even in the earlier treaties with foreign 
 powers, the distinct sovereignty of the States is carefully recog- 
 nized. Thus, the treaty of alliance with France, in 1778, is 
 made between " the most Christian king and the United States 
 of North America to wit : New Hampshire, Massachusetts Bay, 
 Rhode Island, Connecticut," &c., enumerating them all by name. 
 The same form is observed in the treaty of amity and commerce 
 with the States General of the United Netherlands, in 1782, 
 and in the treaty with Sweden, in 1783. In the convention 
 with the Netherlands, in 1782, concerning recaptured vessels, 
 the names of the States are not recited, but " the United States 
 of America" is the style adopted; and so also in some others. 
 
 Blair, Mr. Fleming, Mr. Tazewell, Mr. Richard Gary, Mr. Bullit, Mr. Watts, Mr. 
 Banister, Mr. Page, Mr. Starke, Mr. David Mason, Mr. Adams, Mr. Read and 
 Mr. Thomas Lewis." 
 
 It is impossible to contemplate this proceeding on the part of Virginia, with- 
 ont being convinced that she acted from her own free and sovereign will; and 
 that she, at least, did " presume " to establish a government for herself, with- 
 out the least regard to the recommendation or the pleasure of congress."
 
 46 TRUE NATURE AND CHARACTER OF 
 
 This circumstance shows that the two forms of expression were 
 considered equipollent; and that foreign nations, in treating 
 with the revolutionary government, considered that they treated 
 with distinct sovereignties, through their common agent, and 
 not with a new nation, composed of all those sovereign coun- 
 tries together. It is true, they treated with them jointly, and 
 not severally ; they considered them all bound to the observ- 
 ance of their stipulations, and they believed that the common 
 authority, which was established between and among them, was 
 sufficient to secure that object. The provisional articles with 
 Great Britain, in 1782, by which our independence was acknow- 
 ledged, proceed upon the same idea. The first article declares, 
 that "His Britannic Majesty acknowledges the said United 
 States, to wit. New Hampshire, Massachusetts Bay, Rhode 
 Island and Providence Plantations, Connecticut, New York, 
 New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
 North Carolina, South Carolina and Georgia, to be free, sove- 
 reign and independent States; that he treats with them as 
 such," &c. Thus the very act, by which their former sovereign 
 releases them from their allegiance to him, confirms to each one 
 by name the sovereignty within its own limits, and acknow- 
 ledges it to be a " free, sovereign, and independent State ;" 
 united, indeed, with all the others, but not as forming with 
 them any new and separate nation. The language employed is 
 not suited to convey any other idea. ... If it had been in the con- 
 templation of the parties, that the States had merged themselves 
 into a single nation, something like the following formula would 
 naturally have suggested itself as proper. " His Britanic 
 Majesty acknowledges that New Hampshire, Massachusetts 
 Bay, &c., former colonies of Great Britain, and now united 
 together as one people, are a free, sovereign and independent 
 state," &c. The difference between the two forms of expres- 
 sion, and the strict adaptation of each *to the state of 
 J things which it contemplates, will be apparent to every 
 reader. 
 
 It requires strong and plain proof to authorize us to say, that 
 a nation once sovereign has ceased to be so. And yet our au- 
 thor requires us to believe this of the colonies, although he ac- 
 knowledges that he cannot tell, with any degree of confidence
 
 OUR FEDERAL GOVERNMENT. 47 
 
 or precision, when, how, or to what extent the sovereignty, 
 which they acquired by declaring their independence was sur- 
 rendered. According to him, the colonies are to be presumed 
 to have yielded this sovereignty to a government established by 
 themselves for a special and temporary purpose, which existed 
 only at their will, and by their aid and support ; whose powers 
 were wholly undefined, and for the most part, exercised by 
 usurpation on its part, and legitimated only by the acquiescence 
 of those who appointed it ; whose authority was without any 
 adequate sanction which it could itself apply, and which, as to 
 all the important functions of sovereignty, was a mere name 
 the shadow of power without its substance ! If the fact was 
 really so, I venture to affirm that the history of the world af- 
 fords no similar instance of folly and infatuation. 
 
 But, whatever may have been the condition of the colonies 
 prior to 1781, there is no room for doubt on the subject, after 
 the final ratification of the articles of confederation in that 
 year. Those articles declare that " each State retains its 
 sovereignty, freedom and independence, and every power, juris- 
 diction and right, which is not, by this confederation expressly 
 delegated to the United States, in congress assembled." The 
 obvious construction of this clause requires that we should ap- 
 ply these latter words, only to "powers, jurisdiction and rights;" 
 some of which, as enjoyed by the States under the previous 
 government, were clearly surrendered by the articles of con- 
 federation. But their entire sovereignty, their entire freedom, 
 and their entire independence, are reserved, for these are not 
 partible. Indeed, this is clear enough, from the provisions of 
 that instrument, which, throughout, contemplate the States as 
 free, sovereign and independent. It is singular, too, that it 
 should escape the observation of any one, that the very fact of 
 adopting those articles, and the course pursued in doing so, at- 
 test, with equal clearness and strength, the previous sovereignty 
 and independence of the States. What had the States in their 
 separate character to do with that act, if they formed altogether 
 "one people?" And yet the States, and the States alone, 
 performed it, each acting for itself, and binding itself. The 
 articles were confirmed by ten States, as early as 1778, by an-
 
 TRUE NATURE AND CHARACTER OF 
 
 r*48i other in 1779 ' ancl bv anotlier in * 1 ^ 80 J anc ^ vet tlie y 
 
 were not obligatory until Maryland acceded to them, 
 1781. Nothing less than the ratification of them by all the 
 States, each acting separately for itself, was deemed sufficient 
 to give them any binding force or authority. 
 
 There is much force and meaning in the word "retains," as it 
 occurs in the clause above quoted. Nothing can properly be 
 said to be retained, which 'was not possessed before; and of 
 course, the States possessed before " sovereignty, freedom and 
 independence." These they retained without any qualification, 
 or limitation, and they also retained every " power, jurisdiction 
 and right," which they did not then 'expressly surrender. 
 
 If these views of the subject be not wholly deceptive, our 
 author has hazarded, without due caution, the opinion that the 
 colonies formed "one people," either before or after the decla- 
 ration of independence ; and that they are not to be regarded 
 as sovereign States, after that event. For myself, I profess my 
 utter inability to perceive, in their condition, any nearer ap- 
 proach to political personality or individuality," than may be 
 found in a mere league or confederation between sovereign and 
 independent states ; and a very loose confederation theirs un- 
 doubtedly was. 
 
 The third division of the work commences with a history of 
 the adoption of the constitution. This also is given in an 
 abridged form ; but it omits nothing which can be considered 
 material to the enquiry. Perhaps the author has fallen into 
 one error, an unimportant one, certainly, in stating that " at 
 the time and place appointed, the representatives of twelve 
 States assembled." When the deputies first met in Philadel- 
 phia, in May, 1787, the representatives of only nine States ap- 
 peared ; they were, soon after, joined by those of three others. 
 The author next proceeds to state the various objections which 
 were urged against the constitution, with the replies thereto ; to 
 examine the nature of that instrument ; to ascertain whether it 
 be a compact or not ; to enquire who is the final judge or inter- 
 preter in constitutional controversies ; to lay down rules of in- 
 terpretation ; and, finally, to examine the constitution in its 
 several departments and separate clauses. In the execution of 
 this part of his task, he has displayed great research, laborious
 
 OUR, FEDERAL GOVERNMENT. 4g 
 
 industry, and extensive judicial learning. The brief summary 
 which he has given of the arguments by which the constitution 
 was assailed on the one hand, and defended on the other, is not 
 only interesting as matter of history, but affords great aid in 
 understanding that instrument. We should be careful, however, 
 not to attach to these discussions an undue importance. All the 
 members of the * various conventions did not engage in 
 the debates, and, of course, we have no means of de- 
 termining by what process of reasoning they were led to their 
 conclusions. And we cannot reasonably suppose that the de- 
 baters always expressed their deliberate and well weighed opin- 
 ions in all the arguments, direct and collateral, by which they 
 sought to achieve a single great purpose. We are not, there- 
 fore, to consider the constitution as the one thing or the other, 
 merely because some of the framers, or some of the adopters of 
 it, chose so to characterize it in their debates. Their arguments 
 are valuable as guides to our judgments, but not as authority 
 to bind them. 
 
 In the interpretation of the constitution, the author founds 
 himself, whenever he can, upon the authority of the supreme 
 court. This was to be expected ; for, in so doing, he has, in 
 most cases, only reiterated his own judicial decisions. We 
 could not suppose that one, whose opinions are not lightly 
 adopted, would advance, as a commentator, a principle which he 
 rejected as a judge. In most cases, too, no higher authority in 
 the interpretation of the constitution is known in our systems, 
 and none better could be desired. It is only in questions of 
 political power, involving the rights of the States in reference 
 to the federal government, that any class of politicians are dis- 
 posed to deny the authority of the judgments of the supreme 
 court. We shall have occasion to examine this subject more at 
 large, in a subsequent part of this review. 
 
 In discussing the various clauses of the constitution, the au- 
 thor displays great research, and a thorough acquaintance with 
 the history of that instrument. It is not perceived, however, 
 that he has presented any new views of it, or offered any new 
 arguments in support of the constructions which it has hereto- 
 fore received. As a compendium of what others have said and 
 done upon the subject, his work is very valuable. It facilitates
 
 49 TRUE NATURE AND CHARACTER OF 
 
 investigation, whilst, at the same time, it is so full of matt:r, 
 as to render little farther investigation necessary. Even in this 
 view of the subject, however, it would have been much more 
 valuable if it had contained references to the authorities on 
 which its various positions are founded, instead of merely ex- 
 tracting their substance. The reader who, with this book as 
 his guide, undertakes to acquaint himself with the Constitution 
 of the United States, must take the authority of the author as 
 conclusive, in most cases; or else he will often find himself per- 
 plexed to discover the sources from which he derives his infor- 
 mation. This is a great defect in a work of this sort,' and is 
 the less excusable, because it might have been easily avoided. 
 r^cA-i A writer who undertakes to furnish a treatise *upon a 
 frame of government, in relation to which great and 
 contested political questions have arisen, owes it alike to his reader 
 and to himself, to name the sources whence he draws whatever in- 
 formation he ventures to impart, and the authorities upon which 
 he founds whatever opinions he ventures to inculcate. The rea- 
 der requires this for the satisfaction of his own judgment ; and 
 the writer ought to desire it as affording the best evidence of 
 his own truth and candor. 
 
 In this division of the work, the author pursues the idea cau- 
 tiously hinted in the first division, and more plainly announced 
 in the second ; and he now carries it boldly out in its results. 
 Having informed us that, as colonies, we were "for many pur- 
 poses one people," and that the declaration of independence 
 made us " a nation de facto" he now assumes the broad ground 
 that this " one people," or nation de facto, formed the constitu- 
 tion under which we live. The consequences of this position 
 are very apparent throughout the remainder of the work. The 
 inferences fairly deduced from it impart to the constitution its 
 distinctive character, as the author understands it; and, of 
 course, if this fundamental position be wrong, that instrument 
 is not, in many of its provisions what he represents it to be. 
 The reader, therefore, should settle this question' for himself in 
 the outset ; because, if he differ from the author upon this point, 
 he will be compelled to reject by far the most important part of 
 the third and principal division of these commentaries. 
 
 The opinion, that the constitution was formed by " the people
 
 OUR FEDERAL GOVERNMENT. 50 
 
 of the United States," as contradistinguished from the people 
 of the several States, that is, as contradistinguished from the 
 States as such, is founded exclusively on the particular terms of 
 the preamble. The language is, " We, the people of the United 
 States, do ordain and establish this Constitution for the United 
 States of America." " The people do ordain and establish, not 
 contract and stipulate with each other. The people of the 
 United States, not the distinct people of a particular State 
 with the people of the other States." In thus relying on the 
 language of the preamble, the author rejects the lights of his- 
 tory altogether. I will endeavour in the first place to meet him 
 on his own ground. 
 
 It is an admitted rule, that the preamble of a statute may be 
 resorted to in the construction of it ; and it may, of course, be 
 used to the same extent in the construction of a constitution, 
 which is a supreme law. But the only purpose for which it can 
 be used is to aid in the discovery of the true object and inten- 
 tion of the law, where these *would otherwise be doubt- r * ri -i 
 ful. The preamble can, in no case, be allowed to contra- 
 dict the law, or to vary the meaning of its plain language. 
 Still less can it be used to change the true character of the law- 
 making power. If the preamble of the Constitution had de- 
 clared that it was made by the people of France or England, it 
 might, indeed, have been received as evidence of that fact, in 
 the absence of all proof to the contrary ; but surely it would 
 not be so received against the plain testimony of the instrument 
 itself, and the authentic history of the transaction. If the 
 convention which formed the Constitution was not, in point of 
 fact, a convention of the people of the United States, it had no 
 right to^give itself that title ; nor had it any right to act in that 
 character, if it was appointed by a different power. And if the 
 Constitution, when formed, was adopted by the several States, 
 acting through their separate conventions, it is historically un- 
 true that it was adopted by the aggregate people of the United 
 States. The preamble, therefore, is of no sort of value in set- 
 tling this question; and it is matter of just surprise that it 
 should be so often referred to, and so pertinaciously relied on, 
 for that purpose. History alone can settle all difficulties upon 
 this subject.
 
 51 TRUE NATURE AND CHARACTER OF 
 
 The history of the preamble itself ought to have convinced 
 our author, that the inference which he draws from it could not 
 be allowed. On the 6th of August, 1787, the committee 
 appointed for that purpose reported the first draft of a consti- 
 tution. The preamble was in these words : " "We, the people of 
 the States of New Hampshire, Massachusetts, Rhode Island 
 and Providence Plantations, Connecticut, New York, New 
 Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
 Carolina, South Carolina and Georgia, do ordain, declare and 
 establish the following constitution, for the government of our- 
 selves and our posterity." (1 Elliott's Debates, 255.) On the 
 very next day this preamble was unanimously adopted ; and the 
 reader will at once perceive, that it carefully preserves the dis- 
 tinct sovereignty of the States, and discountenances all idea of 
 consolidation. (Ib. 263.) The draft of the constitution thus 
 submitted was discussed, and various alterations and amend- 
 ments adopted, (but without any change in the preamble,) until 
 the 8th of September, 1787, when the following resolution was 
 passed : "It was moved and seconded to appoint a committee 
 of five, to revise the style of, and arrange the articles agreed 
 to, by the house; which passed in the affirmative." (Ib. 324.) 
 It is manifest that this committee had no power to change the 
 meaning of any thing which had been adopted, but were 
 authorized merely to " revise the style," and arrange the mat- 
 ter in proper order. On the 12th of the same *month 
 J they made their report. The preamble, as they reported 
 it, is in the following words : "We, the people of the United 
 States, in order to form a more perfect union, to establish jus- 
 tice, insure domestic tranquillity, provide for the common 
 defence, promote the general welfare, and secure the blessings 
 of liberty to ourselves and our posterity, do ordain and estab- 
 lish this constitution for the United States of America." (Ib. 
 326.) It does not appear that any attempt was made to change 
 this phraseology in any material point, or to reinstate the ori- 
 ginal. The presumption is, therefore, that the two were con- 
 sidered as substantially the same, particularly as the committee 
 had no authority to make any change, except in the style. The 
 difference in the mere phraseology of the two was certainly not 
 overlooked ; for on the 13th September, 1787, " it was moved
 
 OUR FEDERAL GOVERNMENT. 52 
 
 and seconded to proceed to the comparing of the report from 
 the committee of revision, with the articles which were agreed 
 to by the house, and to them referred for arrangement ; which 
 passed in the affirmative. And the same was read by para- 
 graphs, compared, and, in some places, corrected and amended." 
 (Ib. 338.) In what particulars these corrections and amend- 
 ments were made, we are not very distinctly informed. The 
 only change which was made in the preamble, was by striking 
 out the word "to," before the words "establish justice;" and 
 the probability is, that no other change was made in any of the 
 articles, except such as would make " the report of the com- 
 mittee of revision" "correspond with the articles agreed to by 
 the house." The inference, therefore, is irresistible, that the 
 convention considered the preamble reported by the committee 
 of revision, as substantially corresponding with the original 
 draft, as unanimously "agreed to by the house." 
 
 There is, however, another and a perfectly conclusive reason 
 for the change of phraseology, from the States by name, to the 
 more general expression "the United States;" and this, too, 
 without supposing that it was intended thereby to convey a dif- 
 ferent idea as to the parties to the constitution. The revised 
 draft contained a proviso, that the constitution should go into 
 operation when adopted and ratified by nine States. It was, of 
 course, uncertain whether more than nine would adopt it, or 
 not, and if they should not, it would be altogether improper to 
 name them as parties to that instrument. As to one of them, 
 Rhode Island, she was not even represented in the convention, 
 and, consequently, the others had no sort of right to insert her as 
 a party. Hence it became necessary to adopt a form of expres- 
 sion which would apply to those who should ratify the constitu- 
 tion, and *and not to those who should refuse to do so. 
 The expression actually adopted answers that purpose '- 
 fully. It means simply, "We, the people of those States who 
 have united for that purpose, do ordain," &c. This construc- 
 tion corresponds with the historical fact, and reconciles the 
 language employed with the circumstances of the case. Indeed, 
 similar language was not unusual, through the whole course of 
 the revolution. "The people of his majesty's colonies," "the 
 people of the united colonies," "the people of the United
 
 53 
 
 States," are forms of expression which frequently occur, with- 
 out intending to convey any other idea than that of the people 
 of the several colonies or States. 
 
 It is, perhaps, not altogether unworthy of remark, in refer- 
 ence to this enquiry, that the word "people" has no plural ter- 
 mination in our language. If it had, the probability is that the 
 expression would have been "we, the peoples," conveying, dis- 
 tinctly, the idea of the people of the several States. But, as 
 no such plural termination is known in our language, the least 
 that we can say is, that the want of it affords no argument in 
 favor of the author's position. 
 
 This brief history of the preamble, collected from the Jour- 
 nals of the Convention, will be sufficient to show that the author 
 has allowed it an undue influence in his construction of the 
 constitution. It is not from such vague and uncertain premi- 
 ses, that conclusions, so important and controlling, can be 
 wisely drawn. The author, however, is perfectly consistent 
 with himself in the two characters in which he appears before 
 us ; the commentator takes no ground which the judge does not 
 furnish. It is remarkable that although this question was 
 directly presented in the case of Martin vs. Hunter's Lessees, 
 and although the fact, that the Constitution of the United 
 States "was ordained and established, not by the States in 
 their sovereign capacities, but emphatically by the people of 
 the United States," is made the foundation of the judgment 
 of the supreme court in that case ; yet, Judge Story, in deliv- 
 ering the opinion of the court, rests that position upon the pre- 
 amble 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 sat- 
 isfied with simply proving that the author's conclusions are not 
 warranted by the facts and arguments from which he derives 
 r*<ui ^kem. J ust i ce *to the subject requires a much more full 
 -1 and detailed examination of this important and funda- 
 mental question.
 
 OUR FEDERAL GOVERNMENT. 54 
 
 I have endeavored to show, in the preceding part of this 
 review, that the people of the several States, while in a colo- 
 nial condition, were not " one people " in any political sense of 
 the terms ; that they did not hecome so by the declaration of 
 independence, but that each State became a complete and per- 
 fect 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 influ- 
 ence 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 sys- 
 tem, 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 Annapo- 
 lis commissioners from such of the other States as should 
 approve of the proceeding, for the purpose of preparing a uni- 
 form 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, how-
 
 54 TRUE NATURE AND CHARACTER OF 
 
 ever, 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 
 L J therefore simply reported this fact, and recommended to 
 their respective legislatures to appoint delegates to meet in gen- 
 eral 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 congress, who approved of the recommenda- 
 tion 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 Phila- 
 delphia, 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 exigencies of govern- 
 ment, 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 con- 
 stitution, 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, there- 
 fore, from what unknown source our author derives the idea,
 
 OUR FEDERAL GOVERNMENT. 55 
 
 that the constitution was formed by "the people of the United 
 States," since the history of the transaction, even as he has 
 himself 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 were no such 
 people as "the people of the United States," in the sense in 
 which he uses those terms. The *articles of confedera- PA - fin 
 tion formed, at that time, the only government of the L 
 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 re- 
 mark 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 repre- 
 sentatives, and send others in their places, precisely as any 
 sovereign may recall his minister at a foreign court. The mem- 
 bers 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 govern- 
 ment, were relied on to execute the resolves of congress. In all 
 this, and in other features of the confederation which it is un- 
 necessary to enumerate, we recognize a league between inde- 
 pendent sovereignties, and not one nation composed of all of 
 them together. It would seem to follow, as a necessary con- 
 sequence, 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 such citi- 
 zen, either ly naturalization or otherwise. It is true, the citi- 
 zens of every State were entitled, with certain exceptions, such 
 5
 
 5(3 TRUE NATURE AND CHARACTER OF 
 
 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 con- 
 nexion. 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 particu- 
 lar 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 
 -I to no duty? Who were "the people of the United 
 States?" Where was their domicil, and what were the politi- 
 cal 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 posession 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 con- 
 vention and for the ratification of the constitution, was adopted 

 
 OUR FEDERAL GOVERNMENT. 57 
 
 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 ascer- 
 taining the will of the people upon the subject, could have had 
 that sanction of legal authority, which would have been abso- 
 lutely necessary to give it force and effect. _ It is equally clear 
 that there was no right or power reserved to the States them- 
 selves, 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 L 
 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 confedera- 
 tion, 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, un- 
 less 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
 
 g TRUE NATURE AND CHARACTER OF 
 
 and independent capacities, and not the power of the people of 
 the United States, as contradistinguished from them. For con- 
 gress was, as we have already remarked, strictly the representa- 
 tive 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 ma- 
 joritii 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 powe.r to change, except the power which formed 
 it. It will scarcely be denied by any one, that the confedera- 
 tion 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 abro- 
 gated ? 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 among 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. Be- 
 sides, 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 Mas- 
 -I sachusetts, 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, 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
 
 OUR FEDEKAL GOVERNMENT. 59 
 
 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 con- 
 federation are still the only political tie among the States. We 
 need not, however, look beyond the attestation of the Constitu- 
 tion itself, for full evidence upon this point. It professes to 
 have been "done by the unanimous consent of the States pre- 
 sent, &c.," and not in the name or by the authority of "the 
 people of the United States." 
 
 But it is not the mere framing of a constitution which gives 
 it authority as such. It becomes obligatory only by its adop- 
 tion and ratification ; and surely that act, I speak of free and 
 voluntary government, makes it the constitution of those only 
 who do adopt it. Let us ascertain then, from the authentic 
 history of the times, by whom our own constitution was adopted 
 and ratified. 
 
 The resolution of congress already quoted, contemplates a 
 convention "for the sole and express purpose of revising the 
 articles of confederation," and reporting suitable "alterations 
 and provisions therein." The proceedings of the convention 
 were to be reported to congress and the several legislatures, and 
 were to become obligatory, only when " agreed to in congress 
 and confirmed by the States." This is precisely the course of 
 proceeding prescribed in the articles of confederation. Accord- 
 ingly, the new constitution was submitted to congress ; was by 
 them approved and agreed to, and was afterwards, in pursuance 
 of the recommendation of the convention, laid before conven- 
 tions of the several States, and by them ratified and adopted. 
 In this proceeding, each State acted for itself, without reference 
 to any other State. They ratified at different periods ; some of 
 them unconditionally, and others with provisoes and propositions 
 for amendment. This was certainly State action, in as distinct 
 a form as can well be imagined. Indeed, it may well be doubted 
 whether any other form of ratification, than by the States 
 themselves would have been valid. At all events, none other 
 was contemplated, since the Constitution itself provides, that it 
 shall become obligatory, when ratified by "nine States, "between 
 the States ratifying the same. " The *people of the r- .^ -, 
 United States," as an aggregate mass, are no where ap-
 
 gg TRUE NATURE AND CHARACTER OF 
 
 pealed to, for authority and sanction to that instrument. Even 
 if they could have made it their constitution, by adopting it, 
 they could not, heing as they were separate and distinct politi- 
 cal communities, have united themselves into one mass for that 
 purpose, without previously overthrowing their own municipal 
 governments ; and, even then, the new constitution would have 
 been obligatory only on those who agreed to and adopted it, 
 and not on the rest. 
 
 The distinction between the people of the several States and 
 the people of the United States, as it is to be understood in 
 reference to the present subject, is perfectly plain. I have 
 already explained the terms " a people," when used in a politi- 
 cal sense. The distinction of which I speak may be illustrated 
 by a single example. If the Constitution had been made by 
 "the people of the United States," a certain portion of those 
 people would have had authority to adopt it. In the absence 
 of all express provision to the contrary, we may concede that a 
 majority would, prima facie, have had that right. Did that 
 majority, in fact, adopt it ? Was it ever ascertained whether a 
 majority of the whole people were in favor of it or not ? Was 
 there any provision, either of law or constitution, by which it 
 was possible to ascertain that fact ? It is perfectly well known 
 that there was no such provision ; that no suc6 majority was 
 ever ascertained, or even contemplated. Let us suppose that 
 the people of the States of Massachusetts, New York, Penn- 
 sylvania and Virginia, containing, as we have seen they proba- 
 bly did, a majority of the whole people, had been unanimous 
 against the Constitution, and that a bare majority of the peo- 
 ple in each of the other nine States, acting in their separate 
 character as States, had adopted and ratified it. There can be 
 no doubt, that it would have become the constitution of the 
 United States; and that, too,, by the suffrages of a decided 
 minority, probably not exceeding one-fourth of the aggregate 
 people of all the States. This single example shows, conclu- 
 sively, that the people of the United States, as contradistin- 
 guished from the people of the several States, had nothing to 
 do, and could not have had any thing to do with the matter. 
 
 This brief history of the formation and adoption of the Con- 
 stitution, which is familiar to the mind of every one who has
 
 OUR FEDERAL GOVERNMENT. QQ 
 
 attended to the subject at all, ought, as it seems to me, to be 
 perfectly satisfactory and conclusive ; and should silence for 
 ever, all those arguments in favor of consolidation, which are 
 founded on the preamble to that instrument. I do not perceive 
 with what propriety *it can be said, that the "people of r*f>-i -i 
 the United States," formed the Constitution, since they 
 neither appointed the convention, nor ratified their act, nor 
 otherwise adopted it as obligatory upon them. Even if the pre- 
 amble be entitled to all the influence which has been allowed to 
 it, our author's construction of its language is not, as has already 
 been remarked, the only one of which it is susceptible. "We, 
 the people of the United States," may, without any violence to 
 the rules of fair construction, mean " we, the people of the 
 States united." In this acceptation, its terms conform to the 
 history of the preamble itself, to that of the whole Constitution, 
 and those who made it. In any other acceptation, they are 
 either without meaning, or else they afiirm what history proves 
 to be false. 
 
 It would not, perhaps, have been deemed necessary to bestow 
 quite so much attention on this part of the work, if it were not 
 evident that the author himself considered it of great con- 
 sequence, not as matter of history, but as warranting and 
 controlling his construction of the Constitution, in some of its 
 most important provisions. The argument is not yet exhausted, 
 and I am aware that much of what I have said is trite, and that 
 little, perhaps no part of it, is new. Indeed, the subject has 
 been so often and so ably discussed, particularly in parliamen- 
 tary debates, that it admits very few new views, and still fewer 
 new arguments in support of old views. It is still, however, an 
 open question, and there is nothing in the present condition of 
 public opinion, to deprive it of any portion of its original im- 
 portance. The idea that the people of these States were, while 
 colonists, and, consequently, are now, "one people," in some 
 sense which has never been explained, and to some extent which 
 has never been defined, is constantly inculcated by those who 
 are anxious to consolidate all the powers of the States in the 
 federal government. It is remarkable, however, that scarcely 
 one systematic argument, and very few attempts of any sort, 
 have yet been made to prove this important position. Even the
 
 6^ TRUE NATURE AND CHARACTER OF 
 
 vast and clear mind of the late chief justice of the United States, 
 which never failed to disembarrass and elucidate the most ob- 
 scure and intricate subject, appears to have shrunk from this. 
 In all his judicial opinions in which the question has been pre- 
 sented, the unity or identity of the people of the United States 
 has been taken as a postulatum, without one serious attempt to 
 prove it. The continued repetition of this idea, and the bold- 
 ness with which it is advanced, have, I am induced to think, 
 given it an undue credit with the public. Few men, far too few, 
 enquire narrowly into the subject, and even those who do, are 
 not in general sceptical enough to doubt *what is so 
 L J often and so peremptorily asserted ; and asserted, too, 
 with that sort of hardy confidence which seems to say, that all 
 argument to prove it true would be supererogatory and useless. 
 It is not, therefore, out of place, nor out of time, to refresh the 
 memory of the reader, in regard to those well established his- 
 torical facts, which are sufficient in themselves, to prove that 
 the foundation on which the consolidationists build their theory 
 is unsubstantial and fallacious. 
 
 I would not be understood as contending, in what I have 
 already said, that the Constitution is necessarily federative, 
 merely because it was made by the States as such, and not by 
 the aggregate people of the United States. I readily admit, 
 that although the previous system was strictly federative, and 
 could not have been changed except by the States who made it, 
 yet there was nothing to prevent the States from surrendering, 
 in the provisions of the new system which they adopted, all their 
 power, and even their separate existence, if they chose to do 
 so. The true enquiry is, therefore, whether they have in fact 
 done so, or not ; or, in other words, what is the true character, 
 in this respect, of the present Constitution. In this enquiry, 
 the history of their previous condition, and of the Constitution 
 itself, is highly influential and important. 
 
 The author, carrying out the idea of a unity between the 
 people of the United States, which, in the previous part of his 
 work, he had treated as a postulatum, very naturally, and in- 
 deed necessarily, concludes that the Constitution is not a com- 
 pact among sovereign States. He contends that it is "not a 
 contract imposing mutual obligations, and contemplating the
 
 OUR FEDERAL GOVERNMENT. 62 
 
 permanent subsistence of parties having an independent right 
 to construe, control and judge of its obligations. If in this latter 
 sense, it is to be deemed a compact, it must be, either because 
 it contains, on its face, stipulations to that effect, or because it 
 is necessarily implied, from the nature and objects of a frame 
 of government." 
 
 There is a want of appositeness and accuracy in the first sen- 
 tence of this extract, which renders it somewhat difficult to 
 determine whether the author designed it as a single proposition, 
 or as a series of independent propositions. If the first, there is 
 not one person in the United States, it is presumed, who would 
 venture to differ from him. I confess, however, that I do not 
 very clearly discern what bearing it has on the question he was 
 examining. It involves no point of difference between political 
 parties, nor does it propound any question which has heretofore 
 been contested, or which may be expected to arise hereafter, 
 touching the true nature of the Constitution. If he *de- 
 signed a series of propositions, then the two first are so '- 
 obviously false, that the author himself would not venture to 
 maintain them, and the last is so obviously true, that no one 
 would dream of denying it. For example. He can scarcely 
 mean to say that our government is not a "contract," whether 
 made by the States as such, or by " the people of the United 
 States ;" and it is perfectly clear that it "contemplates the per- 
 manent subsistence of the parties to it," whoever those parties 
 may be. These two propositions, therefore, taken distinctly, 
 are not true in themselves, and neither of them was necessary, 
 as qualifying or forming a part of the third. And, as to the 
 third, it is not easy to see why he announced it, since it never 
 entered into the conception of any one, that the parties to the 
 Constitution had "an independent right," as a general right, 
 "to construe, control or judge of its obligations." We all admit 
 that the power and authority of the federal government, within 
 its constitutional sphere, are superior to those of the States, in 
 some instances, and co-ordinate in others, and that every citizen 
 is under an absolute obligation to render them respect and 
 obedience ; and this simply because his own State, by the act of 
 ratifying the Constitution, has commanded him to do so. We 
 all admit it to be true, as a general proposition, that no citizen
 
 gg TRUE NATURE AND CHARACTER OF 
 
 nor State has an independent right to "construe," and still less 
 to "control," the constitutional obligations of that government, 
 and that neither a citizen nor a State can "judge," that is, de- 
 cide, on the nature and extent of those obligations, with a view 
 to control them. All that has ever been contended for is, that 
 a State has a right to judge of its own obligations, and, con- 
 sequently, to judge of those of the federal government, so far as 
 they relate to such State itself, and no farther. It is admitted 
 on all hands, that when the federal government transcends its 
 constitutional power, and when, of course, it is not acting within 
 its "obligations," the parties to that government, whoever they 
 may be, are no longer under any duty to respect or obey it. 
 This has been repeatedly affirmed by our courts, both State and 
 federal, and has never been denied by any class of politicians. 
 Who then is to determine, whether it has so transcended its 
 constitutional obligations or not ? It is admitted that to a cer- 
 tain extent the supreme court is the proper tribunal in the last 
 resort, because the States, in establishing that tribunal, have 
 expressly agreed to make it so. The jurisdiction of the federal 
 courts extends to certain cases, affecting the rights of the in- 
 dividual citizens, and to certain others affecting those of the 
 individual States. So far as the federal government is authorized 
 to act on the individual citizen, the powers of the one and the 
 rights of *the other, are properly determinable by the 
 -I federal courts. And the decision is binding too, and 
 absolutely final, so far as the relation of the citizen to the fede- 
 ral government is concerned. There is not, within that system, 
 any tribunal of appeal, from the decisions of the supreme court. 
 And so also of those cases in which the rights of the /States are 
 referred to the federal tribunals. In this sense, and to this ex- 
 tent, it is strictly true that the parties have not " an indepen- 
 dent right to construe, control and judge, of the obligations" of 
 the federal government, but they are bound by the decisions of 
 the federal courts, so far as they have authorized and agreed to 
 submit to them. But there are many cases involving the ques- 
 tion of federal power which are not cognizable before the federal 
 courts ; and, of course, as to these, we must look out for some 
 other umpire. It is precisely in this case that the question, who 
 are the parties to the constitution, becomes all important and
 
 OUR FEDERAL GOVERNMENT. 64 
 
 controlling. If the States are parties as sovereign States, then 
 it follows, as a necessary consequence, that each of them has 
 the right \vhich belongs to every sovereignty, to construe its 
 own contracts and agreements, and to decide upon its own rights 
 and powers. I shall take occasion, in a subsequent part of this 
 review, to enter more fully into the question, who is the com- 
 mon umpire. The statement here given, of the leading point 
 of difference between the great political parties of the country, 
 is designed only to show that the author's proposition does not 
 involve it. That proposition may mislead the judgment of the 
 reader, but cannot possibly enlighten it, in regard to the true 
 nature of the Constitution. 
 
 He has been scarcely less unfortunate in the next proposition. 
 Taking his words in their most enlarged sense, he is probably 
 correct in his idea, though he is not accurate in his language ; 
 but in the sense in which his own reasoning shows that he him- 
 self understands them, his proposition is wholly untenable. If, 
 by the words "stipulations to that effect," he means simply that 
 the effect must necessarily result from the provisions of the 
 Constitution, he has merely asserted a truism which no one will 
 dispute with him. Certainly, if it does not result from the na- 
 ture of all government, that it is a compact, and if there be 
 nothing in our Constitution to show that it is so, then it is not 
 a compact. His own reasoning, however, shows that he means 
 by the word "stipulations," something in the nature of express 
 agreement or declaration ; and, in that sense, the proposition is 
 obviously untrue, and altogether defective as a statement for 
 argument. It is very possible that our Constitution may be a 
 compact, even though it contain no express agreement or de- 
 claration so denominating it, and *though it may not 
 "result from the nature and objects of a frame of govern- *- 
 ment," that it is so; and this simply because it may "result 
 from the nature and objects of our government" that it is a 
 compact, whether such be the result of other governments or 
 not. If the author designed to take this view of the subject, 
 the examination which he has given of the Constitution, in re- 
 ference to it, is scarcely as extended and philosophical as we 
 had a right to expect from him. He has not even alluded to 
 the frame and structure of the government in its several depart-
 
 65 TRUE NATURE AND CHARACTER OF 
 
 ments, nor presented any such analysis of it in any respect, as 
 to enable the reader to form any satisfactory conclusion as to 
 its true character in the particular under consideration. Every 
 thing which he has urged as argument to prove his proposition, 
 may well be true, and every sentence of the Constitution, which 
 he has cited for that purpose, may be allowed its full effect, and 
 yet our government may be a compact, even in the strictest 
 sense in which he has understood the term. 
 
 His first argument is, that the "United States were no 
 strangers to compacts of this nature," and that those who 
 ratified the Constitution, if they had meant it as a compact, 
 would have used "appropriate terms" to convey that idea. I 
 have already shown that if he means by this, that the Consti- 
 tution would have contained some express declaration to that 
 effect, he is altogether inaccurate. He himself knows, as a 
 judge, that a deed, or other instrument, receives its distinctive 
 character, not from the name which the parties may choose to 
 give to it, but from its legal effect and operation. The same 
 rule applies to constitutions. Ours is a compact or not, precisely 
 as its provisions make it so, or otherwise. The question, who 
 are the parties to it, may influence, and ought to influence, the 
 construction of it in this respect ; and I propose presently to 
 show, from this and other views of it, that it is, in its nature, 
 " a mere confederation," and not a consolidated government, in 
 any one respect. It does, therefore, contain "appropriate 
 terms," if we take those words in an enlarged sense, to convey 
 the idea of a compact. 
 
 Our author supposes, however, that a " conclusive" argument 
 upon this subject is furnished by that clause of the Constitution 
 which declares that " This Constitution, and the laws of the 
 United States, which shall be made in pursuance thereof, and 
 all treaties made, or which shall be made, under the authority 
 of the United States, shall be the supreme law of the land ; and 
 the judges in every State, shall be bound thereby, any thing in 
 the constitution or laws of any State to the contrary notwith- 
 F*fifi1 stanc ^ n g'" Hence he concludes that "the *people of 
 any State cannot, by any form of its own constitution 
 or laws, or other proceedings, repeal, or abrogate or suspend it." 
 
 Here again the author displays a want of proper definiteness
 
 OUR FEDERAL GOVERNMENT. 66 
 
 and precision, in the statement of his proposition. The people 
 who make a law, can, upon the principles of all our institutions, 
 either "repeal or abrogate or suspend it;" and if, as he sup- 
 poses, our constitution was made by "the people of the United 
 States," in the aggregate, then "the people of any State," or 
 of half a State, may repeal, or abrogate, or suspend it, if they 
 happen to be a majority of the whole. The argument, there- 
 fore, if we are to take it in the full latitude in which it is laid 
 down, is not sound, upon the author's own principles ; and it can 
 avail nothing, except upon the very supposition which he dis- 
 allows; to wit, that the Constitution was formed by the States, 
 and not by the people of the United States. Even in this 
 acceptation, however, I am at a loss to perceive how it establishes 
 the proposition with which he set out ; to wit, that the Consti- 
 tution is not a compact. Certainly it is very possible so to 
 frame a compact, that no party to it shall have a right either 
 to "repeal or abrogate or suspend it;" and if it be possible to 
 do so, then the mere absence of such right does not even tend 
 to disprove the existence of compact. Our own Constitution, 
 even in the opinion of those who are supposed by the author to 
 be least friendly to it, is a compact of precisely this nature. 
 The Nullifier contends only for the right of a State if) prevent the 
 Constitution from being violated by the general government, and 
 not for the right either to repeal, abrogate or suspend it. The 
 Seceder asserts only that a State is competent to withdraw from 
 the Union whenever it pleases ; but does not assert that in so 
 doing it can repeal, or abrogate or suspend the Constitution, as 
 to the other States. Secession would, indeed, utterly destroy 
 the compact as to the seceding party ; but would not necessarily 
 affect its obligation as to the rest. If it would, then the rest 
 would have no right to coerce the seceding State, nor to place 
 her in the attitude of an enemy. It is certain, I think, they 
 would not have such right; but those who assert that they 
 would and the author is among the number must either 
 abandon that idea, or they must admit that the act of secession 
 does not break up the Constitution, except as to the seceding 
 State. For the moment the Constitution is destroyed, all the 
 authorities which it has established cease to exist. There is no 
 longer such a government as that of the United States, and, of
 
 QQ TRUE NATURE AND CHARACTER OF 
 
 course, they cannot, as such, either make any demand, or assert 
 any right, or enforce any claim. 
 
 The conclusion, however, to which our author has arrived, 
 upon *this point, is not that to which he originally 
 L -I designed that his premises should conduct him. The 
 question of the right of a party to a compact, to repeal or 
 abrogate or suspend it, does not enter into his original propo- 
 sition, nor result from the argument which he had immediately 
 before used to sustain it. The proposition is, that our Consti- 
 tution is not a compact, and the argument is, that it is not a 
 compact, because it is a supreme law. The same idea is sub- 
 stantially reaffirmed, in the next argument by which he pro- 
 poses to prove the main proposition. " The design" (of the 
 Constitution) "is to establish a government. This, of itself, 
 imports legal obligation, permanence, and uncontrollability by 
 any, but the authorities authorized to alter or abolish it." 
 
 Admitting, as I cheerfully do, that all this is strictly true, I 
 am yet unable to perceive how it demonstrates that our Con- 
 stitution is not a compact. May not a compact between sov- 
 ereign States, be a government ? Is there any such necessary 
 restraint upon, or incident of, sovereign power, that it cannot, 
 in any possible exercise of it, produce such a result ? If there 
 is, then it was incumbent on the author to show it, because, if 
 there is not, his argument is of no force ; and he himself will 
 admit, that the proposition, to say the least of it, is not quite 
 clear enough to be taken as a postulate. His own historical 
 information, if he had drawn on its ample funds, must have 
 furnished him with numerous instances of governments esta- 
 blished by compact. He need, not, however, have gone beyond 
 our own Confederation, which, although a compact among sov- 
 ereign States, in the strictest sense, was yet treated as a govern- 
 ment by the people at home, and recognized as such by 
 all foreign powers. It was also "supreme," within its pre- 
 scribed sphere of action ; its rights and powers over the most 
 important subjects of general concern were not only superior 
 to those of the States, but were exclusive. The author's pro- 
 position and argument, reduced to their simple terms, may be 
 thus stated. " Our Constitution is not a compact, because it is 
 a government, and because that government is the supreme law."
 
 OUR FEDERAL GOVERNMENT. 67 
 
 There are few minds, I think, prepared to embrace this conclu- 
 sion, or to discern the connection which it has with the pre- 
 mises. There are still fewer who will not feel surprise, that our 
 author should have formed such a conclusion, since an instance 
 to disprove it, furnished by the history of his own country, and 
 existing in his own times, had but just passed under his critical 
 examination and review. 
 
 The remaining arguments upon this point are merely infer- 
 ences drawn from the absence of express words in the Consti- 
 tution, or from *the opinions of members of the various 
 
 I Oo i 
 
 conventions, expressed in the debates concerning it. L 
 These have already been sufficiently examined. Taking his 
 whole chapter upon this subject together, the reader will pro- 
 bably think that it does not answer the expectations which the 
 public have formed upon the author's powers as a reasoner. 
 His political opponents will be apt to think, also, that he has 
 done something less than justice to them, in the view which he 
 has given of their principles. After laboring, in the way we 
 have seen, to prove that our Constitution is not a compact, he 
 informs us that " The cardinal conclusion for which this doc- 
 trine of a compact has been, with so much ingenuity and ability, 
 forced into the language of the Constitution, (for the latter no 
 where alludes to it,) is avowedly to establish that, in construing 
 the Constitution, there is no common umpire; but that, each 
 State, nay, each department of the government of each State, 
 is the supreme judge for itself, of the powers and rights and 
 duties arising under that instrument." 
 
 The author must excuse me I mean no disrespect to him 
 if I express my unfeigned astonishment that he should have 
 admitted this passage into a grave and deliberate work on the 
 Constitution. He must, indeed, have been a most careless 
 observer of passing events, and a still more careless reader of 
 the publications of the last ten years, upon this very point, if 
 he has found either in the one or the other, the slightest authority 
 for the opinion which is here advanced. The most ultra of 
 those who have contended for the rights of the States have 
 asserted no such doctrine as he has imputed to them. Neither 
 is it the necessary or legitimate consequence of any principle 
 which they have avowed. I cannot impute to an author of his
 
 68 
 
 acknowledged ability, the weakness of stating a proposition 
 merely for the sake of the poor triumph of refuting it. With 
 what other motive, then, did he make a statement which is 
 unsupported, as matter of fact ; which involves no disputed or 
 doubted question of constitutional law, and which attributes to 
 a large class of his fellow-citizens opinions which would justly 
 expose them to the scorn of all correct thinkers ? That class 
 profess to hold, in their utmost latitude and in their strictest 
 applications, the doctrines of the State Rights' school of poli- 
 tics. They believe that those doctrines contain the only prin- 
 ciple truly conservative of our Constitution ; that without them 
 there is no effective check upon the federal government, and, of 
 course, that that government can increase its own powers to an 
 indefinite extent ; that this must happen in the natural course 
 of events, and that, ultimately, the whole character of our 
 government will be so changed, that even *its forms 
 
 ' -I will be rejected, as cumbrous and useless, under the 
 monarchy, in substance, into which we shall have insensibly 
 glided. It is, therefore, because they are lovers of the Con- 
 stitution and of the Union, that they contend strenuously for 
 the rights of the States. They are no lovers of anarchy nor of 
 revolution. Their principles will cease to be dear to them, 
 whenever they shall cease to subserve the purposes of good 
 order, and of regular and established government. It is their 
 object to preserve the institutions of the country as they are, 
 sincerely believing that nothing more than this is necessary to 
 secure to the people all the blessings which can be expected 
 from any government whatever. They would consider them- 
 selves but little entitled to respect as a political party, if they 
 maintained the loose, disjointed, and worse than puerile notions, 
 which the author has not thought it unbecoming to impute to 
 them. 
 
 It is the peculiar misfortune of the political party to which I 
 have alluded, to be misunderstood and misrepresented in their 
 doctrines. The passage above quoted affords not the least strik- 
 ing instance of this. It is a great mistake to suppose that they 
 have ever contended that the right of State interposition was 
 given in the express terms of the Constitution ; and, therefore, 
 they have not "forced this principle into the language of that
 
 OUR FEDERAL GOVERNMENT. (39 
 
 instrument. The right in question is supposed to belong to the 
 States, only because it is an incident of their sovereignty, which 
 the Constitution has not taken aivay. The author, it is pre. 
 sumed, could scarcely have failed to perceive the difference of 
 the two propositions, nor could he have been unconscious that 
 they did not depend upon the same course of investigation or 
 reasoning. And it is not true, so far as my information extends, 
 that any political party has ever asserted, as a general propo- 
 sition, that, in construing the Constitution, there is no common 
 umpire. Cases have already been stated, in which the supreme 
 court is universally admitted to be the common umpire, and 
 others will be stated when we come more directly to that part 
 of our subject. In the broad sense, then, in which the author 
 lays down the proposition, it has never been contended for by 
 any political party whatever. Neither is it true, as he is pleased 
 to assert, that any political party has ever supposed, that "each 
 department of the government of each State" had a right to 
 "judge for itself, of the powers, rights and duties, arising under" 
 the Constitution. By the word "judge," he must be understood 
 to mean decide finally ; and, in this sense, I venture to affirm 
 that no political party, nor political partizan, even in the wildest 
 dream of political phrensy, has ever entertained the absurd no- 
 tion here attributed to them. It is difficult *to suppose 
 that the author could have been uninformed of the fact, * ' 
 that nothing short of the power of all the State, acting through 
 its own constituted authorities, has ever been deemed of the 
 least force in this matter. The better and more prevalent opinion 
 is, that a State cannot properly so act, except by a convention 
 called for that express purpose. This was the course pursued by 
 South Carolina; but in the case of the alien and sedition laws, Vir- 
 ginia acted through her ordinary legislature. As to this matter, 
 however, the legislature was very properly considered as repre- 
 senting the power of the whole State. 
 
 Thus, in the short paragraph above quoted, the author has 
 fallen into three most remarkable errors, proving that he has, in 
 the strangest way imaginable, misunderstood the* principles 
 Avhich he attempted to explain. The young and plastic minds 
 to which he addressed himself, with the professed object of in- 
 structing them in the truths of constitutional interpretation, will 
 6
 
 70 TRUE NATURE AND CHARACTER OF 
 
 look in vain for the publication or other authority which sustains 
 him. And the political party whose principles he has endeav- 
 ored to hold up to reproach, has a right to demand of him, why 
 he has chosen to attribute to them absurd and revolutionary no- 
 tions, unworthy alike of their patriotism and their reason. 
 
 It is submitted to the reader's judgment to determine how 
 far the reasoning of the author, which we have just examined, 
 supports his position that our Constitution is not a compact. 
 The opinion of that congress which recommended the call of the 
 convention seems to have been very different; they, at least, 
 did not suppose that a compact could not be a government. 
 Their resolution recommends the call of a convention, for the 
 purpose of "revising the articles of confederation, and report- 
 ing such alterations and provisions therein, as would render the 
 federal constitution adequate to the exigencies of government, 
 and the preservation of the Union." In the opinion of congress, 
 the articles of confederation, which were clearly a compact, 
 were an inadequate constitution, and therefore, they recom- 
 mended such alterations and provisions therein, as would make 
 that same compact an adequate constitution. Nothing is said 
 about forming a new government, or changing the essential 
 character of the existing one ; and, in fact, no such thing was 
 contemplated at the time. "The sole and exclusive purpose" 
 of the convention was so to amend, or add to, the provisions of 
 the articles of confederation, as would form "a more perfect 
 union, &c.," upon the principles of the union already existing. 
 It is clear, therefore, that, in the opinion of congress, and of all 
 the States that adopted their recommendation, that union or 
 compact was a constitution of government. 
 r ..._-, -, *It is worthy of remark, that of the States, New 
 J Hampshire and the author's own State of Massachusetts, 
 expressly call the Constitution a compact, in their acts of rati- 
 fication ; and no other State indicates a different view of it. 
 This tends to prove that public opinion at the time had not 
 drawn the nice distinction which is now insisted on, between a 
 government and a compact ; and that those who for eight years 
 had been living under a compact, and forming treaties with fo- 
 reign powers by virtue of its provisions, had never for a moment 
 imagined that it was not a government.
 
 OUR FEDERAL GOVERNMENT. 71 
 
 But little importance, however, ought to be attached to rea- 
 soning of this kind. Those who contend that our Constitution 
 is a compact, very properly place their principles upon much 
 higher ground. They say that the Constitution is a compact, 
 because it was made by sovereign States, and because that is the 
 only mode in which sovereign States treat with one another. 
 The conclusion follows irresistibly from the premises ; and those 
 who would deny the one, are bound to disprove the other. Our 
 adversaries begin to reason at the very point at which reasoning 
 becomes no longer necessary. Instead of disproving our pre- 
 mises, they assume that they are wrong, and then triumphantly 
 deny our conclusion also. If we establish that the Constitution 
 was made by the States, and that they were, at the time, dis- 
 tinct, independent and perfect sovereignties, it follows that they 
 could not treat with one another, even with a view to the forma- 
 tion of a new common government, except in their several and 
 sovereign characters. They must have maintained the same 
 character when they entered upon that work, and throughout 
 the whole progress of it. Whatever the government may be, 
 therefore, in its essential character, whether a federative or a 
 consolidative government, it is still a compact, or the result of 
 a compact, because those who made it could not make it in any 
 other way. In determining its essential character, therefore, 
 we are bound to regard it as a compact, and to give it such a 
 construction as is consistent Avith that idea. We are not to pre- 
 sume that the parties to it designed to change the character in 
 which they negotiated with one another. Every fair and legiti- 
 mate inference is otherwise. Its sovereignty is the very last 
 thing which a nation is willing to surrender; and nothing short 
 of the clearest proof can warrant us in concluding that it has 
 surrendered it. In all cases, therefore, where the language and 
 spirit of the Constitution are doubtful, and even where their 
 most natural construction would be in favor of consolidation, 
 (if there be any such case,) we should still incline against it, and 
 in favor of the rights of the States, unless no other construction 
 can be admitted. 
 
 *Having disposed of this preliminary question, we now 
 approach the Constitution itself. I affirm that it is, in its L ' 
 structure, a federative and not a consolidated government ; that
 
 r>2 TRUE NATURE AND CHARACTER OF 
 
 it is so, in all its departments, and in all its leading and distin- 
 guishing provisions; and, of course, that it is to be so inter- 
 preted, ty the force of its own terms, apart from any influence 
 to be derived from that rule of construction which has just been 
 laid down. We will first examine it in the structure of its 
 several departments. 
 
 The Legislature. This consists of two houses. The senate 
 is composed of two members from each State, chosen by its own 
 legislature, whatever be its size or population, and is universally 
 admitted to be strictly federative in its structure. The house 
 of representatives consists of members chosen in each State, and 
 is regulated in its numbers, according to a prescribed ratio of 
 representation. The number to which each State is entitled is 
 proportioned to its own population, and not to the population 
 of the United States ; and if there happen to be a surplus in any 
 State less than the established ratio, that surplus is not added 
 to the surplus or population of any other State, in order to make 
 up the requisite number for a representative, but is wholly un- 
 represented. In the choice of representatives, each State votes 
 by itself, and for its own representatives, and not in connection 
 with any other State, nor for the representatives of any other 
 State. Each State prescribes the qualifications of its own 
 voters, the Constitution only providing that they shall have the 
 qualifications which such State may have prescribed for the 
 voters for the most numerous branch of its own legislature. 
 And, as the right to vote is prescribed by the State, the duty 
 of doing so cannot be enforced, except by the authority of the State. 
 No one can be elected to represent any State, except a citizen 
 thereof. Vacancies in the representation of any State, are to be 
 supplied under writs of election, issued by the executive of such 
 State. In all this, there is not one feature of nationality. The 
 whole arrangement has reference to the States as such, and is car- 
 ried into effect solely by their authority. The federal government 
 has no agency in the choice of representatives, except only that 
 it may prescribe the " times, places and manner, of holding 
 elections." It can neither prescribe the qualifications of the 
 electors, nor impose any penalty upon them, for refusing to 
 elect. The States alone can do these things; and, of course, 
 the very existence of the house of representatives depends, as
 
 OUR FEDERAL GOVERNMENT. 72 
 
 much as does that of the senate, upon the action of the States. 
 A State may withdraw its representation altogether, and con- 
 gress has no power to prevent it, nor to supply the vacancy thus 
 created. If the house of representatives were national, in any 
 
 practical sense of the *term, the "nation" would have 
 
 f*73~l 
 authority to provide for the appointment of its members, L 
 
 to prescribe the qualifications of voters, and to enforce the 
 performance of that duty. All these things the State legisla- 
 tures can do, within their respective States, and it is obvious 
 that they are strictly national. In order to make the house of 
 representatives equally so, the people of the United States must 
 be so consolidated that the federal government may distribute 
 them, without regard to State boundaries, into numbers accord- 
 ing to the prescribed ratio ; so that all the people may be re- 
 presented, and no unrepresented surplus be left in any State. 
 If these things could be done under the Federal Constitution, 
 there would then be a strict analogy between the popular 
 branches of the federal and State legislatures, and the former 
 might, with propriety, be considered "national." But it is 
 difficult to imagine a national legislature which does not exist 
 under the authority of the nation, and over the very appoint- 
 ment of which the nation, as such, can exert no effective 
 control. 
 
 There are only two reasons which I have ever heard assigned 
 for the opinion that the house of representatives is national, and 
 not federative. The first is, that its measures are carried by 
 the votes of a majority of the whole number, and not by those 
 of a majority of the States. It would be easy to demonstrate 
 that this fact does not warrant such a conclusion ; but all rea- 
 soning is unnecessary, since the conclusion is disproved by the 
 example of the other branch of the federal legislature. The 
 senate, which is strictly federative, votes in the same way. The 
 argument, therefore, proves nothing, because it proves too 
 much. 
 
 The second argument is, that the States are not equally 
 represented, but each one has a representation proportioned to 
 its population. There is no reason, apparent to me, why a 
 league may not be formed among independent sovereignties, 
 giving to each an influence in the management of their com-
 
 73 TRUE NATURE AND CHARACTER OF 
 
 mon concerns, proportioned to its strength, its wealth, or the 
 interest which it has at stake. This is but simple justice, and 
 the rule ought to prevail in all cases, except where higher con- 
 siderations disallow it. History abounds with examples of 
 such confederations, one of which I will cite. The States 
 General of the United Provinces were strictly a federal body. 
 The council of state had almost exclusively the management 
 and control of all their military and financial concerns ; and in 
 that body, Holland and some other provinces had three votes 
 each, whilst some had two, and others only one vote each. Yet 
 it never was supposed that for this reason the United Provinces 
 
 were a consolidated nation. A single example *of this 
 
 C*74 ~\ 
 
 J sort affords a full illustration of the subject, and renders 
 
 all farther argument superfluous. 
 
 It is not, however, from the apportionment of its powers, nor 
 from the modes in which those powers are exercised, that we 
 can determine the true character of a legislative body, in the 
 particular now under consideration. The true rule of decision 
 is found in the manner in which the body is constituted, and 
 that, we have already seen, is, in the case before us, federative, 
 and not national. 
 
 We may safely admit, however, that the house of representa- 
 tives is not federative, and yet contend, with perfect security, 
 that the legislative department is so. Congress consists of the 
 house of representatives and senate. Neither is a complete 
 legislature, in itself, and neither can pass any law without the 
 concurrence of the other. And, as the senate is the peculiar 
 representative of the States, no act of legislation whatever can 
 be performed, without the consent of the States. They hold, 
 therefore, a complete check and control over the powers of the 
 people in this respect, even admitting that those powers are 
 truly and strictly represented in the other branch. It is true 
 that the check is mutual; but if the legislative department 
 were national, there would be no federative feature in it. It 
 cannnot be replied, with equal propriety, that, if it were fede- 
 rative, there would be no national feature in it. The question 
 is, whether or not the States have preserved their distinct sove- 
 reign characters, in this feature of the Constitution. If they 
 have done so, in any part of it, the whole must be considered
 
 OUR FEDERAL GOVERNMENT. 74 
 
 federative ; because national legislation implies a unity, which 
 is absolutely inconsistent with all idea of a confederation ; 
 whereas, there is nothing to prevent the members of a confed- 
 eration from exerting their several powers, in any form of joint 
 action which may seem to them proper. 
 
 But there is one other provision of the Constitution which 
 appears to me to be altogether decisive upon this point. Each 
 State, whatever be its population, is entitled to at least one 
 representative. It may so happen that the unrepresented 
 surplus, in some one State, may be greater than the whole popu- 
 lation of some other State ; and yet such latter State would be 
 entitled to a representative. Upon what principle is this? 
 Surely, if the house of representatives were national, some- 
 thing like equality would be found in the constitution of it. 
 Large surpluses would not be arbitrarily rejected in some 
 places, and smaller numbers, not equal to the general ratio, be 
 represented in others. There can be but one reason for this : 
 As the Constitution was made by the States, the true principles 
 of the confederation could *not be preserved, without ,-,,,__-. 
 giving to each party to the compact a place and influ- *- 
 ence in each branch of the common legislature. This was due 
 to their perfect equality as sovereign States. 
 
 The Executive, In the election of the president and vice 
 president, the exclusive agency of the States, as such, is pre- 
 served with equal distinctness. These officers are chosen by 
 electors, who are themselves chosen by the people of each 
 State, acting by and for itself, and in such mode as itself may 
 prescribe. The number of electors to which each State is 
 entitled is equal to the whole number of its representatives and 
 senators. This provision is even more federative than that 
 which apportions representation in the house of representa- 
 tives ; because it adds two to the electors of each State, and, so 
 far, places them upon an equality, whatever be their compara- 
 tive population. The people of each State vote within the 
 State, and not elsewhere; and for their own electors, and for 
 no others. Each State prescribes the qualifications of its own 
 electors, and can alone compel them to vote. The electors, 
 when chosen, give their votes within their respective States,
 
 75 TRUE NATURE AXD CHARACTER OF 
 
 and at such times and places as the States may respectively 
 prescribe. 
 
 There is not the least trace of national agency, in any part 
 of this proceeding. The federal government can exercise no 
 rightful power in the choice of its own executive. "The 
 people of the United States " are equally unseen in that impor- 
 tant measure. Neither a majority, nor the whole of them 
 together, can choose a president, except in their character of 
 citizens of the several States. Nay, a president may be consti- 
 tutionally elected, with a decided majority of the people against 
 him. For example, New York has forty-two votes, Pennsylva- 
 nia thirty, Virginia twenty-three, Ohio twenty-one, North 
 Carolina fifteen, Kentucky fourteen, and South Carolina fif- 
 teen. These seven States can give a majority of all the votes, 
 and each may elect its own electors by a majority of only one 
 vote. If we add their minorities to the votes of the other 
 States, (supposing those States to be unanimous against the 
 candidate,) we may have a president constitutionally elected, 
 with less than half perhaps with little more than a fourth of 
 the people in his favor. It is true that he may also be consti- 
 tutionally elected, with the majority of the States, as such 
 against him, as the above example shows ; because the States 
 may, as before remarked, properly agree, by the provisions of 
 their compact, that they shall possess influence, in this respect, 
 proportioned to their population. But there is no mode, con- 
 sistent with the true principles of free, representative govern- 
 
 _ ment, by which a minority of those to whom *en masse, 
 -1 the elective franchise is confided can countervail the con- 
 current and opposing action of the majority. If the president 
 could be chosen by the people of " the United States " in the 
 aggregate, instead of by the States, it is difficult to imagine a 
 case in which a majority of those people, concurring in the 
 same vote, could be overbalanced by a minority. 
 
 All doubt upon this point, however, is removed by another 
 provision of the Constitution touching this subject. If no can- 
 didate should receive a majority of votes in the electoral col- 
 leges, the house of representatives elects the president, from 
 the three candidates who have received the largest electoral 
 vote. In doing this two-thirds of the States must be present
 
 OUR FEDERAL GOVERNMENT. 76 
 
 by their representatives, or one of them, and then they vote by 
 States, all the members from each State giving one vote, and a 
 majority of all the States being necessary to a choice. This is 
 precisely the rule which prevailed in the ordinary legislation of 
 that body, under the articles of confederation, and which 
 proved its federative character, as strongly as any other pro- 
 vision of those articles. Why, then, should this federative 
 principle be preserved, in the election of the president by the 
 house of representatives, if it was designed to abandon it, in 
 the election of the same officer by the electoral colleges ? No 
 good reason for it has yet been assigned, so far as I am informed. 
 On the contrary, there is every just reason to suppose, that 
 those who considered the principle safe and necessary in one 
 form of election, would adhere to it as equally safe and 
 necessary in every other, with respect to the same public trust. 
 And this is still farther proved by the provision of the Consti- 
 tution relating to the election of the vice president. In case of 
 the death or constitutional disability of the president, every 
 executive trust devolves on him ; and, of course, the same 
 general principle should be applied, in the election of both of 
 them. This is done in express terms, so far as the action of 
 the electoral colleges is contemplated. But if those colleges 
 should fail to elect a vice president, that trust devolves on the 
 senate, who are to choose from the two highest candidates. 
 Here the federative principle is distinctly seen ; for the senate 
 is the representative of the States. 
 
 This view of the subject is still farther confirmed by the 
 clause of the Constitution relating to impeachments. The 
 power to try the president is vested in the senate alone, that is, 
 in the representatives of the States. There is a strict fitness 
 and propriety in this ; for those only, whose officer the president 
 is, should be entrusted with the power to remove him. 
 
 *It is believed to be neither a forced nor an unreason- r- ^^ -, 
 able conclusion from all this, that the executive depart- 
 ment is, in its structure, strictly federative. 
 
 The Judiciary. The judges are nominated by the president, 
 and approved by the senate. Thus the nominations are made 
 by a federative officer, and the approval and confirmation of 
 them depend on those who are the exclusive representatives of
 
 77 TRUE NATURE AND CHARACTER OF 
 
 the States. This agency is manifestly federative, and "the 
 people of the United States" cannot mingle in it, in any form 
 whatever. 
 
 As the Constitution is federative in the structure of all three 
 of its great departments, it is equally so in ilie power of amend- 
 ment. 
 
 Congress may propose amendments, " whenever two-thirds of 
 both houses shall deem it necessary." This secures the States 
 against any action upon the subject, by the people at large. In 
 like manner, congress may call a convention for proposing 
 amendments, " on the application of the -legislatures of two- 
 thirds of the several States. It is remarkable that, whether 
 congress or the States act upon the subject, the same proportion 
 is required ; not less than two-thirds of either being authorized 
 to act. From this it is not unreasonable to conclude, that the 
 convention considered that the same power would act in both 
 cases ; to wit, the power of the States, who might effect their 
 object either by their separate action as States, or by the action 
 of congress, their common federative agent ; but, whether they 
 adopted the one mode or the other, not less than two-thirds of 
 them should be authorized to act efficiently. 
 
 The amendments thus proposed " shall be valid to all intents 
 and purposes, as part of this Constitution, when ratified by the 
 legislatures of three-fourths of the several States, or ly conven- 
 tions in three-fourths thereof, as the one or the other mode of 
 ratification may be proposed by congress." It is the act of 
 adoption or ratification alone which makes a constitution. In 
 the case before us, the States alone can perform that act. The 
 language of the Constitution admits of no doubt, and gives no 
 pretext for double construction. It is not the people of the 
 United States in the aggregate, merely acting in their several 
 States, who can ratify amendments. Three-fourths of the seve- 
 ral States can alone do this. The idea of separate and inde- 
 pendent political corporations could not be more distinctly con- 
 veyed, by any form of words. If the people of the United 
 States, as one people, but acting in their several States, could 
 ratify amendments, then the very language of the Constitution 
 l~*78~l rec l u i res tnat three-fourths of them shall *concur therein. 
 Is it not, then, truly wonderful that no mode has yet
 
 OUR FEDERAL GOVERNMENT. 78 
 
 been prescribed to ascertain whether three-fourths of them do 
 concur or not ? By what power can the necessary arrangement 
 upon this point be effected? In point of fact, amendments 
 have already been made, in strict conformity with this provision 
 of the Constitution. We ask our author, whether three-fourths 
 of the people of the United States concurred in those amend- 
 ments or not ; and if they did, whence does he derive the proof 
 of it? 
 
 If our author, and the politicians of his school, be correct in 
 the idea, that the Constitution was formed by " the people of 
 the United States," and not by the States, as such, this clause 
 relating to amendments presents a singular anomaly in politics. 
 Their idea is, that the State sovereignties were merged, to a 
 certain extent, in that act, and that the government established 
 was emphatically the government of the people of the United 
 States. And yet, those same people can neither alter nor 
 amend that government! In order to perform this essential 
 function, it is necessary to call again into life and action those 
 very State sovereignties which were supposed to be merged and 
 dead, by the very act of creating the instrument which they are 
 required to amend ! To alter or amend a government requires 
 the same extent of power which is required to form one ; for 
 every alteration or amendment is, as to so much, a new govern- 
 ment. And, of all political acts, the formation of a constitution 
 of government is that which admits and implies, the most dis- 
 tinctly and to the fullest extent, the existence of absolute, 
 unqualified, unconditional and unlimited sovereignty. So long, 
 therefore, as the power of amending the Constitution rests 
 exclusively with the States, it is idle to contend that they are 
 less sovereign now than they were before the adoption of that 
 instrument. 
 
 The idea which I am endeavoring to enforce, of the federa- 
 tive character of the Constitution, is still farther confirmed by 
 that clause of the article under consideration, which provides 
 that no amendment shall be made to deprive any State of its 
 equal suffrage in the senate, without its own consent. So 
 strongly were the States attached to that perfect equality which 
 their perfect sovereignty implied, and so jealous were they of 
 every attack upon it, that they guarded it, by an express pro-
 
 78 TRUE NATURE AND CHARACTER OF 
 
 vision of the Constitution, against the possibility of overthrow. 
 All other rights they confided to that power of amendment 
 which they reposed in three-fourths of all the States ; but this 
 they refused to entrust, except to the separate, independent 
 an d sovereign *will of each State; -giving to each, in its 
 own case, an absolute negative upon all the rest.* 
 The object of the preceding pages has been to show that the 
 Constitution is federative, in the power which framed it ; fede- 
 rative in the power which adopted and ratified it ; federative in 
 the power which sustains and keeps it alive ; federative in the 
 power by which alone it can be altered or amended ; and fede- 
 rative in the structure of all its departments. In what respect, 
 then, can it justly be called a consolidated or national govern- 
 ment ? Certainly, the mere fact that, in particular cases, it is 
 authorized to act directly on the people, does not disprove its 
 federative character, since that very sovereignty in the States, 
 which a confederation implies, includes within it the right of 
 the State to subject its own citizens to the action of the com- 
 mon authority of the confederated States, in any form which 
 may seem proper to itself. Neither is our Constitution to be 
 deemed the less federative, because it was the object of those 
 who formed it to establish " a government," and one effective 
 for all the legitimate purposes of government. Much emphasis 
 has been laid upon this word, and it has even been thought, by 
 one distinguished statesman of Judge Story's school, that ours 
 is " a government proper," which I presume implies that it is a 
 government in a peculiarly emphatic sense. I confess that I 
 do not very clearly discern the difference between a government 
 and a government proper. Nothing is a government which is 
 not properly so ; and whatever is properly a government, is a 
 government proper. But whether ours is a " government pro- 
 per," or only a simple government, does not prove that it is not 
 a confederation, unless it be true that a confederation cannot 
 be a government. For myself, I am unable to discover why 
 
 * So absolutely is the federal government dependent on the State3 for its 
 existence at all times, that it may be absolutely dissolved, -without the least 
 violence, by the simple refusal of a part of the States to act. If, for example, 
 a few States, having a majority of electoral votes, should refuse to appoint 
 electors of president and vice president, there would be no constitutional exe- 
 cutive, and the whole machinery of the government would stop.
 
 OUR FEDERAL GOVERNMENT. 79 
 
 States, absolutely sovereign, may not create for themselves, by 
 compact, a common government, with powers as extensive and 
 supreme as any sovereign people can confer on a government 
 established by themselves. In what other particular ours is a 
 consolidated or national government, I leave it to the advocates 
 of that doctrine to show. 
 
 We come now to a more particular and detailed examination 
 of the question, " Who is the final judge or interpreter in con- 
 stitutional *controversies?" The fourth chapter of this I 
 division of the author's work is devoted to this enquiry ; 
 and the elaborate examination which he has given to the sub- 
 ject, shows that he attached a just importance to it. The con- 
 clusion, however, to which he has arrived, leaves still unsettled 
 the most difficult and contested propositions which belong to 
 this part of the Constitution. His conclusion is, that, " in all 
 questions of a judicial nature," the supreme court of the United 
 States is the final umpire ; and that the States, as well as indi- 
 viduals, are absolutely bound by its decisions. His reasoning 
 upon this part of the subject is not new, and does not strike me 
 as being particularly forcible. Without deeming it necessary 
 to follow him in the precise order of his argument, I shall en- 
 deavor to meet it in all its parts, in the progress of this exami- 
 nation. Its general outline is this: It is within the proper 
 function of the judiciary to interpret the laws ; the Constitution 
 is the supreme law, and therefore it is within the proper func- 
 tion of the judiciary to interpret the Constitution ; of course, 
 it is the province of the federal judiciary to interpret the Fede- 
 ral Constitution. And as that Constitution, and all laws made 
 in pursuance thereof, are the supreme law of the land, anything 
 in the laws or constitution of any State to the contrary not- 
 withstanding, therefore, the interpretations of that Constitu- 
 tion, as given by the supreme court, are obligatory, final and 
 conclusive, upon the people and the States. 
 
 Before we enter upon this investigation, it is proper to place 
 the proposition to be discussed in terms somewhat more definite 
 and precise than those which the author has employed. What, 
 then, is meant by "final judge and interpreter?" In the ordi- 
 nary acceptation of these terms, we should understand by them 
 a tribunal having lawful cognizance of a subject, and from
 
 g0 TRUE NATURE AND CHARACTER OF 
 
 whose decisions there is no appeal. In this view of the ques- 
 tion there can be no difficulty in admitting that the decisions of 
 the supreme court are final and conclusive. Whatever comes 
 within the legitimate cognizance of that tribunal, it has a right 
 to decide, whether it be a question of the law, or of the Con- 
 stitution ; and no other tribunal can reverse its decision. The 
 Constitution, which creates the supreme court, creates no other 
 court of superior or appellate jurisdiction to it; and, conse- 
 quently, its decisions are strictly "final." There is no power 
 in the same government to which that court belongs, to reverse 
 or control it, nor are there any means therein of resisting its 
 authority. So far, therefore, as the Federal Constitution has 
 provided for the subject at all, the supreme court is, beyond 
 question, the final judge or arbiter ; and this, too, whether the 
 jurisdiction which it exercises be legitimate or usurped. 
 r*n *The terms "constitutional controversies" are still 
 more indefinite. Every controversy which is submitted 
 to the decision of a judicial tribunal, whether State or Federal, 
 necessarily involves the constitutionality of the law under which 
 it arises. If the law be not constitutional, the court cannot en- 
 force it, and, of course, the question whether it be constitutional 
 or not, necessarily arises in every case to which the court is 
 asked to apply it. The very act of enforcing a law presupposes 
 that its constitutionality has been determined. In this sense, 
 every court, whether State or federal, is the "judge or arbiter 
 of constitutional controversies," arising in causes before it ; and 
 if there be no appeal from its decision, it is the "final" judge 
 or arbiter, in the sense already expressed. 
 
 Let us now enquire what " constitutional controversies" the 
 federal courts have authority to decide, and how far its decisions 
 are final and conclusive against all the world. 
 
 The third article of the Constitution provides that " The ju- 
 dicial powers shall extend to all cases in law and equity, arising 
 under this Constitution, the laws of the United States, and the 
 treaties made, or which shall be made, under their authority ; to 
 all cases affecting ambassadors, other public ministers and con- 
 suls ; to all cases of admiralty and maritime jurisdiction ; to 
 controversies to which the United States shall be a party ; to 
 controversies between two or more States ; between a State and
 
 OUR FEDERAL GOVERNMENT. 81 
 
 citizens of another State ; between citizens of different States ; 
 between citizens of the same State, claiming lands, under grants 
 of different States ; and between a State and the citizens thereof, 
 and foreign States, citizens or subjects." 
 
 The eleventh amendment provides that " The judicial power 
 of the United States shall not be construed to extend to any 
 suit in law or equity, commenced or prosecuted against one of 
 the United States, by citizens of another State, or by citizens 
 or subjects of any foreign State." 
 
 It will be conceded on all hands that the federal courts have 
 no jurisdiction except what is here conferred. The judiciary, 
 as a part of the federal government, derives its powers only 
 from the Constitution which creates that government. The term 
 " cases" implies that the subject matter shall be proper for ju- 
 dicial decision ; and the parties between whom alone jurisdiction 
 can be entertained, are specifically enumerated. Beyond these 
 " cases" and these parties they have no jurisdiction. 
 
 There is no part of the Constitution in which the framers of 
 it have displayed a more jealous care of the rights of the States, 
 than in the limitations of the judicial power. It is re- r- ^QQ - 
 markable that no power is conferred except what is ab- 
 solutely necessary to carry into effect the general design, and 
 accomplish the general object of the States, as independent, 
 confederated States. The federal tribunals cannot take cogni- 
 zance of any case whatever in which all the States hare not an 
 equal and common interest that a just and impartial decision 
 shall be had. A brief analysis of the provisions of the Con- 
 stitution, will make this sufficiently clear. 
 
 Cases " arising under the Constitution" are those in which 
 some right or privilege is denied, which the Constitution con- 
 fers, or something is done, which the Constitution prohibits, as 
 expressed in the Constitution itself. Those which arise "under 
 the laws of the United States" are such as involve rights or du- 
 ties, which result from the legislation of congress. Cases of 
 these kinds are simply the carrying out of the compact or agree- 
 ment made between the States, by the Constitution itself, and, 
 of course, all the States are alike interested in them. For this 
 reason alone, if there were no other, they ought to be entrusted 
 to the common tribunals of all the States. There is another
 
 g2 TRUE NATURE AND CHARACTER OF 
 
 reason, however, equally conclusive. The judicial should al- 
 ways be at least co-extensive with the legislative power ; for it 
 would be a strange anomaly, and could produce nothing but dis- 
 order and confusion, to confer on a government the power to 
 make a law, without conferring, at the same time, the right to 
 interpret, and the power to enforce it. 
 
 Cases arising under treaties, made under the authority of the 
 United States, and those " affecting ambassadors and other 
 public ministers and consuls," could not properly be entrusted 
 to any other than the federal tribunals. Treaties are made 
 under the common authority of all the States, and all, alike, 
 are bound for the faithful observance of them. Ambassadors 
 and other public ministers and consuls are received under the 
 common authority of all the States, and their duties relate only 
 to matters involving alike the interests of all. The peace of 
 the country, and the harmony of its relations with foreign pow- 
 ers, depend, in a peculiar degree, on the good faith with which 
 its duties in reference to these subjects are discharged. Hence 
 it would be unsafe to entrust them to any other than their own 
 control ; and even if this were not so, it would be altogether in- 
 congruous to appeal to a State tribunal, to enforce the rights, 
 the obligations or the duties of the United States. For like 
 reasons, cases of admiralty and maritime jurisdiction are pro- 
 perly entrusted to the federal tribunals. 
 
 Controversies to which the United States shall be a party 
 should, *upon general principles, belong only to her own 
 -" courts. There would be neither propriety nor justice in 
 permitting any one State to decide a case in which all the 
 States are parties. In like manner those between two or more 
 States between a State and citizens of another State, where 
 the State is plaintiff (it cannot be sued] and between citizens 
 of different States, could not be entrusted to the tribunals of 
 any particular State interested, or whose citizens are interested 
 therein, without danger of injustice and partiality. Jurisdiction 
 is given to the federal courts, in these cases, simply because 
 they are equally interested for all the parties, are the common 
 courts of all the parties, and therefore are presumed to form the 
 only fair and impartial tribunal between them. The same 
 reasoning applies to cases between citizens of the same State,
 
 OUR FEDERAL GOVERNMENT. gg 
 
 claiming lands under grants of different States. Cases of this 
 sort involve questions of the sovereign power of the States, and 
 could not, with any show of propriety, be entrusted to the de- 
 cision of either of them, interested as it would be to sustain its 
 own acts, against those of the sister State. The jurisdiction in 
 this case is given upon the same principles which give it in cases 
 between two or more States. 
 
 Controversies between a State or the citizens thereof, and 
 foreign States, citizens or subjects, depend on a different princi- 
 ple, but one equally affecting the common rights and interests 
 of all the States. A foreign State cannot, of course, be sued ; 
 she can appear in our courts only as plaintiff. Yet, in whatever 
 form such controversies, or those affecting tfre citizens of a 
 foreign State, may arise, all the States have a deep interest that 
 an impartial tribunal, satisfactory to the foreign party, should 
 be provided. The denial of justice is a legitimate, and not an 
 unfruitful cause of war. As no State can be involved in war 
 without involving all the rest, they all have a common interest 
 to withdraw from the State tribunals a jurisdiction which may 
 bring them within the danger of that result. All the States 
 are alike bound to render justice to foreign States and their 
 people ; and this common responsibility gives them a right to 
 demand that every question involving it shall be decided by 
 their common judicatory. 
 
 This brief review of the judicial power of the United States, 
 as given in the Constitution, is not offered as a full analysis of 
 the subject ; for the question before us does not render any 
 such analysis necessary. My design has been only to show with 
 what extreme reserve judicial power has been conferred, and 
 with what caution it has been restricted to those cases, only, 
 which the new relation between the States, established by the 
 Constitution, rendered absolutely *necessary. In all 
 the cases above supposed, the jurisdiction of the federal * 
 courts is clear and undoubted ; and as the States have, in the 
 frame of the Constitution, agreed to submit to the exercise of 
 this jurisdiction, they are bound to do so, and to compel their 
 people to like submission. But it is to be remarked, that they 
 are bound only by their agreement, and not beyond it. They 
 are under no obligation to submit to the decisions of the supreme 
 7
 
 g.| TRUE NATURE AND CHARACTER OF 
 
 court, on subject matter not properly cognizable before it, nor 
 to those between parties not responsible to its jurisdiction. 
 Who, then, is to decide this point ? Shall the supreme court 
 decide it for itself, and against all the world ? It is admitted 
 that every court must necessarily determine every question of 
 jurisdiction which arises before it, and, so far, it must of course 
 be the judge of its own powers. If it be a court of the last re- 
 sort, its decision is necessarily final, so far as those authorities 
 are concerned, which belong to the same system of government 
 Avith itself. There is, in fact, no absolute and certain limita- 
 tion, in any constitutional government, to the powers of its own 
 judiciary ; for, as those powers are derived from the Constitu- 
 tion, and as the judges are the interpreters of the Constitution, 
 there is nothing to prevent them from interpreting in favor of 
 any power which they may claim. The supreme court, there- 
 fore, may assume jurisdiction over subjects and between parties, 
 not allowed by the constitution, and there is no power in the 
 federal government to gainsay it. Even the impeachment and 
 removal of the judges, for ignorance or corruption, would not 
 invalidate their decisions already pronounced. Is there, then, 
 no redress ? The Constitution itself will answer this question, 
 in the most satisfactory manner. 
 
 The tenth article of the amendments of the Constitution pro- 
 vides that " The powers not delegated to the United States by 
 the Constitution, nor prohibited by it to the States, arc reserved 
 to the States respectively, or to the people." The powers thus 
 reserved, are not only reserved against the federal government 
 in whole, but against each and every department thereof. The 
 judiciary is no more excepted out of the reservation than is the 
 legislature or the executive. Of what nature, then, are those 
 reserved powers ? Not the powers, if any such there be, which 
 are possessed by all the States together, for the reservation is 
 to "the States respectively ;" that is, to each State separately 
 and distinctly. Now we can form no idea of any power pos- 
 sessed by a State as such, and independent of every other State, 
 which is not, in its nature, a sovereign power. Every power so 
 reserved, therefore, must be of such a character that each State 
 
 ma y * exerc * se **> without the least reference or responsi- 
 
 bility to any other State whatever.
 
 OUR FEDERAL GOVERNMENT. 85 
 
 We have already seen that the Constitution of the United 
 States was formed by the States as such, and the reservation 
 above quoted is an admission that, in performing that Avork, 
 they acted as independent and sovereign States. It is incident 
 to every sovereignty to be alone the judge of its own compacts 
 and agreements. No other State or assemblage of States has 
 the least right to interfere with it, in this respect, and cannot 
 do so without impairing its sovereignty. The Constitution of 
 the United States is but the agreement which each State has 
 made, with each and all the other States, and is not distin- 
 guishable, in the principle we are examining, from any other agree- 
 ment between sovereign States. Each State, therefore, has aright 
 to interpret that agreement for itself, unless it has clearly waived 
 that right in favor of another power. That the right is not 
 waived in the case under consideration, is apparent from the 
 fact already stated, that if the judiciary be the sole judges of 
 the extent of their own powers, their powers are universal, and 
 the enumeration in the Constitution is idle and useless. But it 
 is still farther apparent from the following view. 
 
 The Federal Government is the creature of the States. It is 
 not a party to the Constitution, but the result of it the creation 
 of that agreement which was made by the States as parties. It 
 is a mere agent, entrusted with limited powers for certain spe- 
 cific objects; which powers and objects are enumerated in the 
 Constitution. Shall the agent be permitted to judge of the ex- 
 tent of his own powers, without reference to his constituent? 
 To a certain extent he is compelled to do this, in the very act 
 of exercising them, but this is always in subordination to the 
 authority by whom his powers were conferred. If this were not 
 so, the result would be, that the agent would possess every power 
 which the constituent could confer, notwithstanding the plainest 
 and most express terms of the grant. This would be against all 
 principle and all reason. If such a rule should prevail in re- 
 gard to government, a written constitution would be the idlest 
 thing imaginable. It would afford no barrier against the usur- 
 pations of the government, and no security for the rights and 
 liberties of the people. If then the federal government has no 
 authority to judge, in the last resort, of the extent of its own 
 powers, with what propriety can it be said that a single depart-
 
 g4 TRUE NATURE AND CHARACTER OF 
 
 court, on subject matter not properly cognizable before it, nor 
 to those between parties not responsible to its jurisdiction. 
 Who, then, is to decide this point ? Shall the supreme court 
 decide it for itself, and against all the world ? It is admitted 
 that every court must necessarily determine every question of 
 jurisdiction which arises before it, and, so far, it must of course 
 be the judge of its own powers. If it be a court of the last re- 
 sort, its decision is necessarily final, so far as those authorities 
 are concerned, which belong to the same system of government 
 with itself. There is, in fact, no absolute and certain limita- 
 tion, in any constitutional government, to the powers of its own 
 judiciary ; for, as those powers are derived from the Constitu- 
 tion, and as the judges are the interpreters of the Constitution, 
 there is nothing to prevent them from interpreting in favor of 
 any power which they may claim. The supreme court, there- 
 fore, may assume jurisdiction over subjects and between parties, 
 not allowed by the constitution, and there is no power in the 
 federal government to gainsay it. Even the impeachment and 
 removal of the judges, for ignorance or corruption, would not 
 invalidate their decisions already pronounced. Is there, then, 
 no redress ? The Constitution itself will answer this question, 
 in the most satisfactory manner. 
 
 The tenth article of the amendments of the Constitution pro- 
 vides that " The powers not delegated to the United States by 
 the Constitution, nor prohibited by it to the States, arc reserved 
 to the States respectively, or to the people." The powers thus 
 reserved, are not only reserved against the federal government 
 in whole, but against each and every department thereof. The 
 judiciary is no more excepted out of the reservation than is the 
 legislature or the executive. Of what nature, then, are those 
 reserved powers ? Not the powers, if any such there be, which 
 are possessed by all the States together, for the reservation is 
 to "the States respectively ;" that is, to each State separately 
 and distinctly. Now we can form no idea of any power pos- 
 sessed by a State as such, and independent of every other State, 
 which is not, in its nature, a sovereign power. Every power so 
 reserved, therefore, must be of such a character that each State 
 may *exercise it, without the least reference or responsi- 
 J bility to any other State whatever.
 
 OUR FEDERAL GOVERNMENT. 85 
 
 We have already seen that the Constitution of the United 
 States was formed by the States as such, and the reservation 
 above quoted is an admission that, in performing that work, 
 they acted as independent and sovereign States. It is incident 
 to every sovereignty to be alone the judge of its own compacts 
 and agreements. No other State or assemblage of States has 
 the least right to interfere with it, in this respect, and cannot 
 do so without impairing its sovereignty. The Constitution of 
 the United States is but the agreement which each State has 
 made, with each and all the other States, and is not distin- 
 guishable, in the principle we are examining, from any other agree- 
 ment between sovereign States. Each State, therefore, has aright 
 to interpret that agreement for itself, unless it has clearly waived 
 that right in favor of another power. That the right is not 
 waived in the case under consideration, is apparent from the 
 fact already stated, that if the judiciary be the sole judges of 
 the extent of their own powers, their powers are universal, and 
 the enumeration in the Constitution is idle and useless. But it 
 is still farther apparent from the following view. 
 
 The Federal Government is the creature of the States. It is 
 not a party to the Constitution, but the result of it the creation 
 of that agreement which was made by the States as parties. It 
 is a mere agent, entrusted with limited powers for certain spe- 
 cific objects; which powers and objects are enumerated in the 
 Constitution. Shall the agent be permitted to judge of the ex- 
 tent of his own powers, without reference to his constituent? 
 To a certain extent he is compelled to do this, in the very act 
 of exercising them, but this is always in subordination to the 
 authority by whom his powers were conferred. If this were not 
 so, the result would be, that the agent would possess every power 
 which the constituent could confer, notwithstanding the plainest 
 and most express terms of the grant. This would be against all 
 principle and all reason. If such a rule should prevail in re- 
 gard to government, a written constitution would be the idlest 
 thing imaginable. It would afford no barrier against the usur- 
 pations of the government, and no security for the rights and 
 liberties of the people. If then the federal government has no 
 authority to judge, in the last resort, of the extent of its own 
 powers, with what propriety can it be said that a single depart-
 
 85 
 
 TRUE NATURE AND CHARACTER OF 
 
 ment of that government may do so ? Na y, it is said that this 
 department may not only judge for itself, but for the other de- 
 partments also. This is an absurdity as pernicious as it is 
 *gross and palpable. If the judiciary may determine the 
 L " J powers of the federal government, it may pronounce them 
 either less or more than they really are . That government at least 
 would have no right to complain of the decisions of an umpire 
 which it had chosen for itself, and endeavored to force upon the 
 States and the people. Thus a single department might deny to 
 both the others, salutary powers which they really possessed, and 
 which the public interest or the public safety might require them 
 to exercise ; or it might confer on them powers never conceded, 
 inconsistent with private right, and dangerous to public liberty. 
 In construing the powers of a free and equal government, it 
 is enough to disprove the existence of any rule, to show that 
 such consequences as these will result from it. Nothing short 
 of the plainest and most unequivocal language should reconcile 
 us to the adoption of such a rule. No such language can be 
 found in our Constitution. The only clause, from which the 
 rule can be supposed to be derived, is that which confers juris- 
 diction in "all cases arising under the Constitution, and the 
 laws made in pursuance thereof; but this clause is clearly not 
 susceptible of any such construction. Every right may be said 
 to be a constitutional right, because no right exists which the 
 Constitution disallows ; and consequently every remedy to en- 
 force those rights presents " a case arising under the Constitu- 
 tion." But a construction so latitudinous will scarcely be con- 
 tended for by any one. The clause under consideration gives 
 jurisdiction only as to those matters, and between those parties, 
 enumerated in the Constitution itself. Whenever such a case 
 arises, the federal courts have cognizance of it ; but the right to 
 
 " O ' O 
 
 decide a case arising under the Constitution does not necessarily 
 imply the right to determine in the last resort what that Con- 
 stitution is. If the federal courts should, in the very teeth of 
 the eleventh amendment, take jurisdiction of cases "commenced 
 or prosecuted against one of the States by citizens of another 
 State," the decision of those courts, that they had jurisdiction, 
 would certainly not settle the Constitution in that particular. 
 The State would be under no obligation to submit to such a de-
 
 OUR FEDERAL GOVERNMENT. . 86 
 
 cision, and it would resist it by virtue of its sovereign right to 
 decide for itself, whether it had agreed to the exercise of such a 
 jurisdiction or not. 
 
 Considering the nature of our system of government, the 
 States ought to be, and I presume always will be, extremely 
 careful not to interpose their sovereign power against the de- 
 cisions of the supreme court in any case where that court clearly 
 has jurisdiction. Of this character are the cases already cited 
 at the commencement of this *inquiry ; such, for ex- 
 ample, as those between two States, those affecting for- ^ 
 eign ministers, those of admiralty and maritime jurisdiction, 
 &c. As to all these subjects the jurisdiction is clear, and no 
 State can have any interest to dispute it. The decisions of the 
 supreme court, therefore, ought to be considered as final and 
 conclusive, and it would be a breach of the contract on the part 
 of any State to refuse submission to them. There are, how- 
 ever, many cases involving questions of the powers of govern- 
 ment, State and federal, which cannot assume a proper form for 
 judicial investigation. Most questions of mere political power, 
 are of this sort; and such are all questions between a State and 
 the United States. As to these, the Constitution confers no 
 jurisdiction on the federal courts, and, of course, it provides no 
 common umpire to whose decision they can be referred. In 
 such cases, therefore, the State must of necessity decide for it- 
 self. But there are also cases between citizen and citizen, 
 arising under the laws of the United States, and between the 
 United States and the citizen, arising in the same way. So far 
 as the federal tribunals have cognizance of such cases, their de- 
 cisions are final. If the constitutionality of the law under 
 which the case arises, should come into question, the court has 
 authority to decide it, and there is no relief for the parties, in 
 any other judicial proceeding. If the decision, in a controversy 
 between the United States and a citizen, should be against the 
 United States, it is, of course, final and conclusive. If the de- 
 cision should be against the citizen, his only relief is by an ap- 
 peal to his own State. He is under no obligation to submit to 
 federal decisions at all, except so far only as his own State has 
 commanded him to do so ; and he has, therefore, a perfect right 
 to ask his State whether her commands extend to the particular
 
 gy TRUE NATURE AND CHARACTER OF 
 
 case or not. He does not ask whether the federal court has 
 interpreted the law correctly or not, but -whether or not she 
 ever consented that congress should pass the law. If congress 
 had such power, he has no relief, for the decision of the highest 
 federal court is final ; if congress had not such power, then he 
 is oppressed by the action of a usurped authority, and has a 
 right to look to his own State for redress. His State may in- 
 terpose in his favor or not, as she may think proper. If she 
 does not, then there is an end of the matter; if she does, then 
 it is no longer a judicial question. The question is then be- 
 tween new parties, who are not bound by the former decision ; 
 between a sovereign State and its own agent ; between a State 
 and the United States. As between these parties the federal 
 tribunals have no jurisdiction, there is no longer a common um- 
 pire to whom the controversy can be referred. The State must 
 of *necessity judge for itself, by virtue of that inherent, 
 L - sovereign power and authority, which, as to this matter, 
 it has never surrendered to any other tribunal. Its decision, 
 whatever it may be, is binding upon itself and upon its own 
 people, and no farther. 
 
 A great variety of cases are possible, some of which are not 
 unlikely to arise, involving the true construction of the Federal 
 Constitution, but which could not possibly be presented to the 
 courts, in a form proper for their decision. The following are 
 examples. 
 
 By the 4th section of the 4th article it is provided that "Con- 
 gress shall guaranty to every State in the Union a republican 
 form of government." What is a republican form of govern- 
 ment, and how shall the question be decided? In its very na- 
 ture, it is a political, and not a judicial question, and it is not 
 easy to imagine by what contrivance it could be brought before 
 a court. Suppose a State should adopt a constitution not republi- 
 can, in the opinion of congress ; what course would be pursued ? 
 Congress might, by resolution, determine that the Constitution was 
 not republican, and direct the State to form a new one. And sup- 
 pose that the State should refuse to do so, on the ground that it had 
 already complied with the requisitions of the Federal Constitu- 
 tion in that respect ? Could congress direct an issue to try the 
 question at the bar of the supreme court? This would, indeed,
 
 OUR FEDERAL GOVERNMENT. gg 
 
 be an odd way of settling the rights of nations, and determin- 
 ing the extent of their powers ! Besides, who would be parties 
 to the issue ; at whose suit should the State be summoned to 
 appear and answer? Not at that of the United States, because 
 a State cannot be sued by the United States, in a federal court; 
 not at that of any other State, nor of any individual citizen, 
 because they are not concerned in the question. It is obvious 
 that the case does not present proper subject matter for judicial 
 investigation ; and even if it did, that no parties could be found 
 authorized to present the issue. 
 
 Again, congress has authority "to provide for organizing, 
 arming and disciplining the militia, and for governing such part 
 of them as may be employed in the service of the United 
 States ; reserving to the States, respectively, the appointment 
 of the officers, and the authority of training the militia accord- 
 ing to the discipline prescribed by congress." Suppose that 
 congress should usurp the right to appoint the militia officers, 
 or the State should insist on training the militia in their own 
 way, and not "according to the discipline prescribed by con- 
 gress." How could this matter be brought before the supreme 
 court? and even if properly brought there, how could its sen- 
 tence be executed? 
 
 *Again. Suppose that congress should enact that all r*oq-i 
 the slaves of the country should immediately be free. 
 This is certainly not impossible, and I fear not even improbable, 
 although it would be the grossest and most palpable violation of 
 the constitutional rights of the slaveholder. This would cer- 
 tainly produce the most direct conflict between the State and 
 Federal governments. It would involve a mere question of 
 political power the question whether the act of congress for- 
 bidding slavery, or the laws and constitution of the State allow- 
 ing it, should prevail. And yet it is manifest that it presents 
 no subject matter proper for judicial decision, and that the 
 parties to it could not be convened before the supreme court. 
 
 These examples are sufficient to show that there is a large 
 class of " constitutional controversies," which could not possi- 
 bly be brought under the cognizance of any judicial tribunal, 
 and still less under that of the federal courts. As to these 
 cases, therefore, each State must of necessity, for the reasons
 
 gg TRUE NATURE AXV CHARACTER OF 
 
 already stated, be its own "final judge or interpreter." They 
 involve the mere question of political power, as between the 
 State and federal governments ; and the fact, that they are 
 clearly withheld from the jurisdiction of the supreme court, 
 goes far to prove that the States in framing the Constitution 
 did not design to submit to that court any question of the like 
 kind, in whatever form or between whatever parties it might 
 arise, except so far only as the parties themselves were 
 concerned. 
 
 Our author himself does not contend that the supreme court 
 is the "final judge or interpreter" in all cases whatsoever; 
 he, of course, admits that no court can decide any question 
 which is not susceptible of a proper form for judicial enquiry. 
 But he contends that, in all cases of which the supreme court 
 can take cognizance, its decisions are final, and absolutely 
 binding and conclusive in all respects, to all purposes, and 
 against the States and their people. It is this sweeping con- 
 clusion which it has been my object to disprove. I can see in 
 the federal courts nothing more than the ordinary functions of 
 the judiciary in every country. It is their proper province to 
 interpret the laws ; but their decisions are not binding, except 
 between the parties litigant and their privies. So far as they 
 may claim the force of authority, they are not conclusive, even 
 upon those who pronounce them, and certainly are not so 
 beyond the sphere of their own government. Although the 
 judiciary may, and frequently do, enlarge or contract the 
 powers of their own governments, as generally understood, yet 
 they can never enlarge or contract those of other governments, 
 for the simple reason, that other governments are not bound 
 f*90 1 ^ tne i r *decisions. And so in our own systems. There 
 is no case in which a judicial question can arise, before 
 a federal court, between a State and the federal government. 
 Upon what principle, then, are the States bound by the deci- 
 sions of the federal judiciary ? Upon no principle, certainly, 
 except that, as to certain subjects, they have agreed to be so 
 bound. But this agreement they made in their character of 
 sovereign States, not with the federal government, but with one 
 another. As sovereign States they alone are to determine the 
 nature and extent of that agreement, and, of course, they alone
 
 OUR FEDERAL GOVERNMENT. 90 
 
 are to determine whether or not they have given the federal 
 courts authority to bind them in any given case. This prin- 
 ciple has frequently been asserted by the States, and always 
 successfully.* 
 
 But these mere technical rules, upon which we have hith- 
 erto considered the subject, are altogether unworthy of its 
 importance, and far beneath its dignity. Sovereign nations do 
 not ask their judges what are their rights, nor do they limit 
 their powers by judicial precedents. Still less do they entrust 
 these important subjects to judicial tribunals not their own, and, 
 least of all, to the tribunals of that power against which their 
 own power is asserted. It would have been a gross inconsis- 
 tency in the States of our Union to do this, since they have 
 shown, in every part of their compact with one another, the 
 most jealous care of their separate sovereignty and independ- 
 ence. It is true they have agreed to be bound by the decisions 
 of federal tribunals in certain specified cases, and it is not to 
 be doubted that, so long as they desire the continuance of their 
 present union, they will feel themselves bound, in every case 
 which comes plainly within their agreement. There is no 
 necessity to call in the aid of the supreme court to ascertain to 
 what subjects, and how far, that agreement extends. So far as 
 it is plain, it will be strictly observed, as national faith and 
 honor require ; there is no other guarantee. So far as it is 
 not plain, or so far as it may be the will and pleasure of any 
 State to deny or to resist it, the utter impotency of courts of 
 justice to settle the difficulty will be manifested beyond all 
 doubt. They will be admonished of their responsibility to the 
 power which created them. The States created them. They 
 are but an emanation of the sovereign power of the States, and 
 can neither limit nor control that power. 
 
 Ordinarily, the judiciary are the proper interpreters of the 
 powers of government, but they interpret in subordination to 
 the power which created them. In governments established by 
 an aggregate people, *such as are those of the States, 
 a proper corrective is always found in the people them- - 
 selves. If the judicial interpretation confer too much or too 
 little power on the government, a ready remedy is found in an 
 * Hunter and Martin, Cohen vs. State of Virginia, and other cases.
 
 gi TRUE NATURE AND CHARACTER OF 
 
 amendment of the Constitution. But in our federal system the 
 evil is without remedy, if the federal courts be allowed to fix 
 the limits of federal power with reference to those of the 
 States. It would place every thing in the State governments, 
 except their mere existence, at the mercy of a single depart- 
 ment of the federal government. The maxim, stare decisis, is 
 not always adhered to by our courts ; their own decisions are 
 not held to be absolutely binding upon themselves. They may 
 establish a right to-day and unsettle it to-morrow. A decision 
 of the supreme court might arrest a State in the full exercise of 
 an.important and necessary power, which a previous decision of 
 the same court had ascertained that she possessed. Thus the 
 powers of the State governments, as to many important objects, 
 might be kept indeterminate and constantly liable to change, so 
 that they would lose their efficiency, and forfeit all title to con- 
 fidence and respect. It is true, that in this case, too, there is 
 a possible corrective in the power to amend the Constitution. 
 But that power is not with the aggrieved State alone ; it could 
 be exerted only in connexion with other States, whose aid she 
 might not be able to command. And even if she could com- 
 mand it, the process would be too slow to afford effectual relief. 
 It is impossible to imagine that any free and sovereign State 
 ever designed to surrender her power of self-protection in a 
 case like this, or ever meant to authorize any other power to 
 reduce her to a situation so helpless and contemptible.* 
 
 * This want of uniformity and fixedness, in the decisions of courts, renders 
 the supreme court the most unfit umpire that could be selected, between the 
 federal government and the States, on questions involving their respective 
 rights and powers. Suppose that the United States should resolve to cut a 
 canal through the territory of Virginia ; and being resisted, the supreme court 
 should decide that they had a right to do so. Suppose that, when the work 
 was completed, a similar attempt should be made in Massachusetts ; and being 
 resisted, the same court should decide that they had no right to do so. The 
 effect would be that the United States would possess a right in one State, 
 which it did not possess in another. Suppose that Virginia should impose a 
 tax on the arsenals, dock-yards, &c. of the United States within her territory, 
 and that, in a suit to determine the right, the supreme court should decide in 
 favor of it. Suppose that a like attempt should be made by Massachusetts, 
 and, upon a similar appeal to that court, it should decide against it; Virginia 
 would enjoy aright in reference to the United States, which would be denied 
 to Massachusetts. Other cases may be supposed, involving like consequences, 
 and showing the absurdity of submitting to courts of justice the decision of
 
 OUR FEDERAL GOVERNMENT. 91 
 
 Yielding, therefore, to the supreme court all the "'juris- 
 diction and authority which properly belongs to it, we * 
 cannot safely or wisely repose in it the vast trust of ascertain- 
 ing, defining or limiting the sovereign powers of the States. 
 
 Let us now follow the author in the enquiry, by what rules 
 shall the Constitution be interpreted ? Many of those which 
 he has given are merely such as we apply to every instrument, 
 and they do not, therefore, require any particular examination. 
 The principal one, and that from which he deduces many others 
 as consequences, is this : "It is to be construed as a frame or 
 fundamental law of government, established by the people of 
 the United States, according to their own free pleasure and 
 sovereign will. In this respect, it is in no wise distinguishable 
 from the constitutions of the State governments." That our 
 Constitution is " a frame of government " will scarcely be 
 denied by any one, and this, whether it be in its nature feder- 
 ative or consolidated. It is also, as is every other constitution 
 of government, " a fundamental law." It is the acknowledged 
 basis of all federal power and authority, the sole chart by 
 which federal officers are to direct their course. But all this 
 leaves the enquiry still open, what is this fundamental law, 
 what is the course indicated by this chart of federal power, and 
 how is it to be ascertained ? The author seems to suppose that 
 a full answer to this question may be found in the fact, that 
 this frame or fundamental law of government was established 
 by " the people of the United States, according to their free 
 pleasure and sovereign will." If the fact were really so, it 
 would undoubtedly exert an important influence, and would go 
 far to justify his construction of the Constitution. We here 
 discern the usefulness and necessity of that historical enquiry, 
 which has just been finished. From that enquiry we learn, 
 distinctly and without doubt, that the Constitution was not 
 established by "the people of the United States," and conse- 
 
 controversies between governments, involving the extent and nature of their 
 powers. 
 
 I know that the decisions of the supreme court on constitutional questions 
 have been very consistent and uniform ; but that affords no proof that they 
 will be so through all time to come. It is enough for the purposes of the 
 present argumeut, that they may be otherwise.
 
 02 TRUE NATURE AND CHARACTER OP 
 
 quently, that it does not resemble in that respect the constitu- 
 tions of the States. There is no such analogy between them, 
 as will presently be shown, as to require that they should be 
 construed by the same rules. The Constitution of the United 
 States is to be considered as a compact or confederation between 
 free, independent and sovereign States, and is *to be con- 
 -" strued as such, in all cases where its language is doubt- 
 ful. This is the leading and fundamental rule, from "which the 
 following may be deduced as consequences 
 
 It is to be construed strictly. Our author supposes that the 
 Constitution of the United States ought to "receive as favora- 
 ble a construction as those of the States;" that it is to be 
 liberally construed; that doubtful words aie to be taken most 
 strongly in favor of the powers of the federal government ; and 
 that there is "no solid objection to implied powers." All these 
 are but inferences from the great rule which he first laid down, 
 to wit, that the Constitution is to be considered as a frame of 
 government, established by the people of the United States. 
 As that rule cannot apply, because the fact on which it is 
 founded is not true, it would seem to follow, as a necessary con- 
 sequence, that the inferences deduced from it cannot be allowed. 
 Nevertheless, they shall receive a more particular consideration 
 under the present enquiry. 
 
 According to the principles of all our institutions, sovereignty 
 does not reside in any government whatever, neither State nor 
 federal. Government is regarded merely as the agent of those 
 who create it, and subject in all respects to their will. In the 
 States, the sovereign power is in the people of the States re- 
 spectively; and the sovereign power of the United States would, 
 for the same reason, be in "the people of the United States," 
 if there were any such people, known as a single nation, and 
 the framers of the federal government. We have already seen, 
 however, that there are no such people, in a strict political 
 sense, and that no such people had any agency in the formation 
 of our Constitution, but that it was formed by the States, em- 
 phatically as such. It would be absurd, according to all prin- 
 ciples received and acknowledged among us, to say that the 
 sovereign power is in one party, and the power which creates 
 the government is in another. The true sovereignty of the
 
 OUR FEDERAL GOVERNMENT. 93 
 
 United States, therefore, is in the States, and not in the people 
 of the United States, nor in the federal government. That 
 government is but the agent through whom a portion of this 
 sovereign power is exerted ; possessing no sovereignty itself, 
 and exerting no power, except such only as its constituents have 
 conferred on it. In ascertaining what these powers are, it is 
 obviously proper that we should look only to the grant from 
 which they are derived. The agent can claim nothing for itself, 
 and on its own account. The Constitution is a compact, and 
 the parties to it are each State, with each and every other State. 
 The federal government is not a party, but is the mere creature 
 of the *agreement between the States as parties. Each 
 State is both grantor and grantee, receiving from each *- 
 and all the other States precisely what, in its turn, it concedes 
 to each and all of them. The rule, therefore, that the words 
 are to be taken most strongly in favor of the grantee, cannot 
 apply, because, as each State is both grantor and grantee, it 
 would give exactly as much as it would take away. The only 
 mode, therefore, by which we may be certain to do no injustice 
 to the intentions of the parties, is by taking their words as the 
 true exponents of their meaning. 
 
 Our author thinks, however, that a more liberal rule ought to 
 be adopted, in construing the Constitution of the United States, 
 because " the grant enures solely and exclusively for the benefit 
 of the grantor himself;" and therefore he supposes that "no 
 one would deny the propriety of giving to the words of the grant 
 a benign and liberal interpretation." Admit that it is so, and 
 it would seem to follow that " the benefit of the grantor" re- 
 quires that we should take from h-im as little as possible, and 
 that an "interpretation of the words of the grant" would not be 
 "benign and liberal" as to him, if it deprived him of any more 
 of his rights and powers, than his own words prove that he in- 
 tended to relinquish. It is evident that this remark of the 
 author proceeds upon the leading idea, that the people of the 
 United States are the only party to the contract ; an idea 
 which, we have already seen, can by no means be justified or 
 allowed. The States are parties ; each agreeing with each, and 
 all the rest, that it will exercise, through a common agent, pre- 
 cisely so much of its sovereign rights and powers, as will, in its
 
 g^ TRUE NATURE AND CHARACTER OF 
 
 own opinion, be beneficial to itself, when so exercised. The 
 grant "enures to the sole and exclusive benefit of the grantor ;" 
 and who but the grantor himself shall determine what benefit he 
 had in view, and how far the grant shall extend, in order to 
 secure it ? This he has done, in the case before us, by the very 
 terms of the grant. If you hold him bound by any thing be- 
 yond those terms, you enable others to decide this matter for 
 him, and may thus virtually abrogate his contract, and substi- 
 tute another in its place. 
 
 I certainly do not mean to say, that in construing the Con- 
 stitution, we should at all times confine ourselves to its strict 
 letter. This would, indeed, be sticking in the bark, to the worst 
 possible purpose. Many powers are granted by that instrument, 
 which are not included within its express terms, literally 
 taken, but which are, nevertheless, within their obvious mean- 
 ing. The strict construction for which I contend, applies to the 
 intention of the framers of the Constitution ; and this may or 
 may not require a strict construction of their words. 
 
 *There is no fair analogy as to this matter between 
 J the Federal Constitution and those of the States, al- 
 though the author broadly asserts that they are not " distin- 
 guishable in this respect ;" and this will sufficiently appear from 
 the following considerations : 
 
 1. The entire sovereignty of each State is in the people 
 thereof. When they form for themselves a constitution of 
 government, they part with no portion of their sovereignty, but 
 merely determine what portion thereof shall lie dormant, what 
 portion they will exercise, and in what modes and by what 
 agencies they will exercise it. There is but one party to such 
 a government, to wit, the people of the State. Whatever power 
 their government may possess, it is still the power of the peo- 
 ple ; and their sovereignty remains the same. So far, there- 
 fore, there is "no solid objection to implied powers" in a State 
 
 'constitution ; because, by employing power in the government, 
 you take no power from those who made the government. 
 
 2. As government is the agent and representative of the 
 sovereign power of the people, the presumption is, that they in- 
 tend to make it the agent and representative of all their power. 
 In every frame of limited government, the people deny to them-
 
 OUR FEDERAL GOVERNMENT. 95 
 
 selves the exercise of some portion of their rights and powers, 
 but the larger portion never lies thus dormant, In this case, 
 therefore, (viz. : of a government established by an aggregate 
 people,) the question naturally is, not what powers are granted, 
 but what are denied; and the rule of strict construction, if 
 applied at all, should be applied only to the powers denied. 
 This would have the effect of enlarging the powers of govern- 
 ment, by limiting the restraints imposed on it. 
 
 3. As it is fair to presume that a people absolutely sovereign, 
 and having an unlimited right to govern themselves as they 
 please, would not deny to themselves the exercise of any power 
 necessary to their prosperity and happiness, we should admit all 
 fair and reasonable implications in favor of the government, be- 
 cause, otherwise, some power necessary to the public weal, might 
 be dormant and useless. 
 
 In these respects, there is no just analogy between the State 
 constitutions and that of the United States. 
 
 In the first place, the Constitution of the United States is 
 not a frame of government to which there is but one party. 
 The States are parties, each stipulating and agreeing with each 
 and all the rest. Their agreement is, that a certain portion of 
 that power which each is authorized to exercise within its own 
 limits shall be exercised by their common agent, within the 
 limits of all of them. This is not the separate power of each, 
 but the joint power of all. In proportion, *therefore, as 
 you increase the powers of the federal government, you *- 
 necessarily detract from the separate powers of the States. We 
 are not to presume that a sovereign people mean to surrender 
 any of their powers ; still less should we presume that they 
 mean to surrender them, to be exerted over themselves, ~by a 
 different sovereignty. In this respect, then, every reasonable 
 implication is against the federal government. 
 
 In the second place, the Constitution of the United States is 
 not the primary social relation of those who formed it. The 
 State governments were already organized, and were adequate 
 to all the purposes of their municipal concerns. The federal 
 government was established only for such purposes as the State 
 government could not answer, to wit, the common purposes of 
 all the States. "Whether, therefore, the powers of that govern-
 
 gg TRUE NATURE AND CHARACTER OF 
 
 ment be greater or less, the whole power of the States, (or so 
 much thereof as they design to exercise at all,) is represented, 
 either in the federal government or in their own. In this re- 
 spect, therefore, there is no necessity to imply power in the 
 federal government. 
 
 In the third place, whatever power the States have not dele- 
 gated to the federal government, they have reserved to them- 
 selves. Every useful faculty of government is found either in 
 the one or the other. Whatever the federal government cannot 
 do for all the States, each State can do for itself, subject only 
 to the restraints of its own constitution. No power, therefore, 
 is dormant and useless, except so far only as the States volun- 
 tarily decline to exert it. In this respect, also, there is no 
 necessity to imply power in the federal government. 
 
 In all these particulars the Federal Constitution is clearly 
 "distinguishable from the constitutions of the State govern- 
 ments." The views just presented support this obvious dis- 
 tinction, that in the State constitutions every power is granted 
 which is not denied ; in the Federal Constitution, every power 
 is denied which is not granted. There are yet other views of 
 the subject, which lead us to the same conclusion. 
 
 The objects for which the federal government was established, 
 are by no means equal in importance to those of the State con- 
 stitutions. It is difficult to imagine any necessity for a federal 
 government at all, except what springs from the relations of the 
 States to foreign nations. A union among them is undoubtedly 
 valuable for many purposes. It renders them stronger and 
 more able to resist their enemies ; it attracts to them the re- 
 spect of other countries, and gives them advantages in the 
 formation of foreign connexions ; it facilitates all the operations 
 F*Q71 *^ war ' f comm e r ce, and of foreign diplomacy. But 
 J these objects, although highly important, are not so im- 
 portant as those great rights which are secured to us by the 
 State constitutions. The States might singly protect them- 
 selves ; singly form their foreign connexions, and singly regu- 
 late their commerce ; not so effectually, it is true, but effectually 
 enough to afford reasonable security to their independence and 
 general prosperity. In addition to all this, we rely exclusively 
 on the State governments for the security of the great rights of
 
 OUR FEDERAL GOVERNMENT. 97 
 
 life, liberty and property. All the valuable and interesting re- 
 lations of the social state spring from them. They give validity 
 to the marriage tie ; they prescribe the limits of parental au- 
 thority ; they enforce filial duty and obedience ; they limit the 
 power of the master, and exact the proper duties of the servant. 
 Their power pervades all the ranks of society, restraining the 
 strong, protecting the weak, succoring the poor, and lifting up 
 the fallen and helpless. They secure to all persons an impar- 
 tial administration of public justice. In all the daily business 
 of life, we act under the protection and guidance of the State 
 governments. They regulate and secure our rights of property ; 
 they enforce our contracts and preside over the peace and safety 
 of our firesides. There is nothing dear to our feelings or valua- 
 ble in our social condition, for which we are not indebted to 
 their protecting and benignant action. Take away the federal 
 government altogether, and still we are free, our rights are still 
 protected, our business is still regulated, and we still enjoy all 
 the other advantages and blessings of established and well or- 
 ganized government. But if you take away the State govern- 
 ments, what have you left ? A federal government, which can 
 neither regulate your industry, secure your property, nor pro- 
 tect your person ! Surely there can be no just reason for steal- 
 ing, by liberal constructions and implications, from these bene- 
 ficent State governments, any portion of their power, in order 
 to confer it on another government, which, from its very 
 organization, cannot possibly exert it for equally useful pur- 
 poses. A strict construction of the Constitution will give to 
 the federal government all the power which it can beneficially 
 exert, all that it is necessary for it to possess, and all that its 
 framers ever designed to confer on it. 
 
 To these views of the subject we may add, that there is a na- 
 tural and necessary tendency in the federal government to 
 encroach on the rights and powers of the States. As the re- 
 presentative of all the States, it affords, in its organization, an 
 opportunity for those combinations by which a majority of the 
 States may oppress the minority, against the spirit or even the 
 letter of the Constitution. There is no *danger that .- ^q^ -, 
 the federal government will ever be too weak. Its 
 means of aggrandizing itself are so numerous, and its tempta-
 
 98 
 
 TRUE NATURE AND CHARACTER OF 
 
 tions to do so are so strong, that there is not the least necessity 
 to imply any new power in its favor. The States, on the con- 
 trary, have no motive to encroach on the federal government, 
 and no power to do so, even if they desired it. In order, there- 
 fore, to preserve the just balance between them, we should in- 
 cline, in every doubtful case, in favor of the States ; confident 
 that the federal government has always the inclination, and 
 always the means, to maintain itself in all its just powers. 
 
 The Constitution itself suggests that it should be strictly and 
 not liberally construed. The tenth amendment provides, that 
 " the powers not delegated to the United States, nor prohibited 
 to the States, by the Constitution, are reserved to the States or 
 the people." There was a corresponding provision in the arti- 
 cles of confederation, which doubtless suggested this amendment. 
 It was considered necessary, in order to prevent that latitude of 
 construction which was contended for by one of the great poli- 
 tical parties of the country, and much dreaded and strenuously 
 opposed by the other. In the articles of confederation all 
 " rights, jurisdictions and powers" are reserved, except only 
 such as are expressly delegated ; but in the Constitution, the 
 word " expressly" is omitted. Our author infers from this fact, 
 that it was the intention of the framers of the tenth amendment 
 to leave " the question, whether the particular power which is 
 the subject of contest has been delegated to one government or 
 prohibited to the other, to depend upon a fair construction of the 
 whole instrument;" doubtless intending by the word "fair," a 
 construction as liberal as would be applied to any other frame 
 of government. This argument is much relied on, and is cer- 
 tainly not without plausibility, but it loses all its force, if the 
 omission can be otherwise satisfactorily accounted for. The 
 Constitution provides that congress shall have power to pass all 
 laws which shall be necessary and proper for carrying into effect 
 the various powers which it grants. If this clause confers no 
 additional faculty of any sort, it is wholly useless and out of 
 place; the fact that it is found in the Constitution is sufficient 
 proof that some effect was intended to be given to it. It was 
 contemplated that, in executing the powers expressly granted, 
 it might be necessary to exert some power not enumerated, and 
 as to which some doubt might, for that reason, be entertained.
 
 OUR FEDERAL GOVERNMENT. 98 
 
 For example, the power to provide a navy is not, in itself, the 
 power to build a dry dock ; but, as dry docks are necessary and 
 proper means for providing a navy, congress shall have power 
 to authorize the construction of them. But if *the 
 word " expressly" had been used in the tenth amend- L 
 ment, it would have created a very rational and strong doubt 
 of this. There would have been, at least, an apparent repug- 
 nance betAveen the two provisions of the Constitution ; not a real 
 one, I admit, but still sufficiently probable to give rise to em- 
 barrassing doubts and disputes. Hence the necessity of omit- 
 ting the word " expressly," in the tenth amendment. It left 
 free from doubt and unaffected the power of congress to provide 
 the necessary and proper means of executing the granted powers, 
 while it denied to the federal government every power which 
 was not granted. The same result was doubtless expected from 
 this amendment of the Constitution, which was expected from 
 the corresponding provision in the articles of confederation ; and 
 the difference in the terms employed is but the necessary con- 
 sequence of the difference in other provisions of the two systems. 
 Strictly speaking, then, the Constitution allows no implication 
 in favor of the federal government, in any case whatever. 
 Every power which it can properly exert is a granted power. 
 All these are enumerated in the Constitution, and nothing can 
 be constitutionally done, beyond that enumeration, unless it be 
 done as a means of executing some one of the enumerated powers. 
 These means are granted, not implied ; they are given as the 
 necessary incidents of the power itself, or, more properly speak- 
 ing, as component parts of it, because the power would be im- 
 perfect, nugatory and useless, without them. It is true, that in 
 regard to these incidental powers, some discretion must, of ne- 
 cessity, be left with the government. But there is at the same 
 time, a peculiar necessity that a strict construction should be 
 applied to them ; because that is the precise point at which the 
 government is most apt to encroach. Without some strict, de- 
 finite and fixed rules upon the subject, it would be left under 
 no restraint, except what is imposed by its own wisdom, integ- 
 rity and good faith. In proportion as a power is liable to be 
 abused, should we increase and strengthen the checks upon it. 
 And this brings us to the enquiry, what are these incidental
 
 gg TRUE NATURE AND CHARACTER OF 
 
 powers, and by what rules are they to be ascertained and 
 defined ? 
 
 The only source from which these incidental powers are de- 
 rived is that clause of the Constitution which confers on congress 
 the power " to make all laws which are necessary and proper 
 for carrying into execution the foregoing powers, and all other 
 powers vested by this Constitution in the government of the 
 United States, or in any department or officer thereof." The 
 true character of this clause cannot be better given than in the 
 words of the author himself: "It neither ^enlarges 
 J any power specifically granted, nor is it a grant of any 
 new power to congress. But it is merely a declaration, for the 
 removal of all uncertainty, that the means of carrying into exe- 
 cution, those otherwise granted, are included in the grant." 
 His general reasoning upon the subject is very lucid, and, to a 
 certain extent, correct and convincing. He contends that the 
 word "necessary " is not to be taken in its restricted sense, as 
 importing absolute and indispensable necessity, but is to be 
 understood in the sense of "convenient," "useful," "requi- 
 site;" as being such that, without them, "the grant would be 
 nugatory." The dangerous latitude implied by this construc- 
 tion, he thinks sufficiently restrained by the additional word 
 " proper," which implies that the means shall be " constitu- 
 tional and bonafide appropriate to the end." In all this he is 
 undoubtedly correct ; but the conclusion which he draws from 
 it, cannot be so readily admitted. "If," says he, "there be 
 any general principle which is inherent in the very definition of 
 government, and essential to every step of the progress to be 
 made by that of the United States, it is that every power vested 
 in the government is, in its nature, sovereign, and includes, by 
 force of the term, a right to employ all the means requisite, 
 and fairly applicable to the attainment of the end of such 
 power, unless they are excepted in the Constitution, or are 
 immoral, or are contrary to the essential objects of political 
 society." This is by no means a legitimate conclusion from 
 his own fair and forcible reasoning. The doctrine here is, in 
 effect, that the federal government is absolutely unrestricted in 
 the selection and use of the means of executing its own powers, 
 except only so far as those means are excepted in the Constitu-
 
 OUR FEDERAL GOVERNMENT. 100 
 
 tion. Whether or not they are " requisite," " fairly applicable 
 to the attainment of the end of such power," "immoral or con- 
 trary to the essential objects of political society," all these are 
 questions which the government alone can decide, and, of 
 course, as their own judgment and discretion are their only 
 rule, they are under no sort of limitation or control in these 
 respects. The standards of political morality, of public con- 
 venience and necessity, and of conformity to the essential 
 objects of society, are quite too fluctuating and indeterminate 
 to be relied on, by a free people, as checks upon the power of 
 their rulers. The only real restriction, then, which the author 
 proposes in the above passage, is that which may be found in 
 the fact, that the proposed means are ll excepted" in the Con- 
 stitution ; and this is directly contrary to the letter and spirit 
 of that instrument. The federal government possesses no 
 power which is not " delegated ;" " the powers not delegated to 
 the United States by the Constitution, nor prohibited by 
 *it to the States, are reserved to the States respectively, L 
 or to the people." The author's idea is, that every thing is 
 granted which is not excepted ; whereas, the language of the 
 tenth amendment is express, that every thing is excepted which 
 is not granted. If the word " excepted " is to be understood 
 in this sense, the author's idea is correct ; but this does not 
 accord with the general scope of his opinions and reasoning. 
 He approaches much nearer to the true rule in the following 
 passage. " Let the end be legitimate ; let it be within the 
 scope of the Constitution ; and all means which are appropri- 
 ate, which are plainly adapted to the end, and which are not 
 prohibited, but are consistent with the letter and spirit of the 
 instrument, are constitutional." The words in italics, are all 
 important in the matter, and give to the passage a meaning 
 wholly different from that of the passage first quoted. 
 
 The author's error is equally great, and far more dangerous, 
 in supposing that the means of executing its powers are con- 
 ferred on the government. The general proposition is true, as 
 he has stated it ; but it is not true in the application which he 
 has made of it to our government. He regards the tenth 
 amendment as altogether unnecessary, and tells us, in express 
 terms, that the powers of the government would be exactly the
 
 TRUE NATURE AND CHARACTER OF 
 
 same with or without it. This is a great and obvious mistake. 
 The tenth amendment was wisely incorporated into the Consti- 
 tution, for the express purpose of denying to the government 
 that unbounded discretion, in the selection and use of its means, 
 for which he contends. The power to make all laws necessary 
 and proper for carrying into effect the granted powers is con- 
 ferred on congress alone ; it is exclusively a legislative power. 
 So far, therefore, as the government is concerned, it derives no 
 power from this clause ; and the same is true of its several 
 departments. They have no discretion in the selection of any 
 incidental means of executing their several trusts. If they 
 need the use of such means, they must apply to congress to 
 furnish them ; and it is discretionary with that body, whether 
 to furnish them or not. All this is perfectly clear from the 
 very language of the Constitution, and the propriety of such a 
 provision must be apparent to every one. If power could be 
 implied in favor of such a government as ours, it would, if 
 nothing were said to the contrary, be implied in favor of every 
 department and officer thereof, to the execution of whose duties 
 it might seem to be necessary. This would be a wide extent 
 of discretion, indeed ; so wide, that it would render all the lim- 
 itations of the Constitution nugatory and useless. It is pre- 
 
 f*1 s ? 1 c ^ se ty t'h* 8 resu lt which was intended to be *prevented 
 by the clause in question. The States were unwilling 
 to entrust such a discretion either to the government, or to the 
 several departments or officers thereof. They were willing to 
 confer it on congress alone ; on the legislative department, the 
 more immediate representatives of the States and their people, 
 who would be most apt to discharge the trust properly, because 
 they had the least temptation to abuse it. It is not true, then, 
 as our author supposes, or, at least, it is not true of our system, 
 that " every power in the government is, in its nature, sove- 
 reign, and includes, by force of the term, a right to employ all 
 the means requisite, and fairly applicable to the attainment of 
 the ends of such power, unless they are excepted in the Consti- 
 tution, or forbidden by some consideration of public morals, or 
 by their unsuitableness to the proper objects of government." 
 In our government, the means are at the disposal of one depart-
 
 OUR FEDERAL GOVERNMENT. 102 
 
 mcnt only, which may either grant or withhold them at its 
 pleasure. 
 
 What, then, are the proper limitations of the power of con- 
 gress in this respect ? This has always heen a subject of great 
 difficulty, and of marked difference of opinion, among politi- 
 cians. I cannot hope that I shall be able perfectly to disem- 
 barrass it ; but I think, nevertheless, that there are a few plain 
 rules, the propriety of which all will admit, and which may 
 materially aid us in the formation of a sound opinion upon the 
 subject. 
 
 In the first place, then, it is to be observed that congress has 
 no power under this clause of the Constitution, except to pro- 
 vide the means of executing the granted powers. It is not 
 enough that the means adopted are sufficient to that end ; they 
 must be adopted bona fide, with a view to accomplish it. Con- 
 gress have no right to use for the accomplishment of one pur- 
 pose, means ostensibly provided for another. To do so would 
 be a positive fraud, and a manifest usurpation ; for, if the pur- 
 pose be lawful, it may be accomplished by its own appropriate 
 means, and if it be unlawful, it should not be accomplished at 
 all. It is quite obvious that, without this check, congress may, 
 by indirection, accomplish almost any forbidden object ; for 
 among the great variety of means adapted to carry out the 
 granted powers, some may be found equally calculated to effect, 
 either by their direct, or their indirect action, purposes of a 
 wholly different character and tendency. It is, therefore, of 
 the utmost importance to the preservation of the true princi- 
 ples of the Constitution, that strict faith should be kept upon 
 this point. 
 
 In the second place, the means provided must not only be 
 "necessary," but they must also be "proper." If the word 
 "necessary" *stood alone, it would be susceptible of a r*-i0o-i 
 very extended meaning, and would probably be consid- 
 ered as embracing powers which it never was in the contempla- 
 tion of the framers of the Constitution to grant. It was neces- 
 sary, then, to limit and restrain it by some other word, and the 
 word "proper" was very happily selected. This word requires 
 that the means selected shall be strictly constitutional. In 
 ascertaining this, we must have regard not only to the express
 
 TRUE NATURE AND CHARACTER OF 
 
 provisions of the Constitution, but also to the general nature 
 and character of our institutions. Ours is a free government, 
 which implies that it is also an equal government ; it therefore 
 authorizes the employment of no means for the execution of its 
 powers, except such as are consistent with the spirit of liberty 
 and equality. Ours is a confederated government ; it therefore 
 authorizes no means which are inconsistent with the distinct 
 sovereignty of the States, the confederating powers. Ours is 
 a government of " delegated" powers, limited and specifically 
 enumerated ; it therefore authorizes no means which involve, in 
 the use of them, any distinct substantive power, not granted. 
 This single rule, if fairly and honestly observed, will go far to 
 remove many serious difficulties upon this point, and will deprive 
 the federal government of many important powers which it has 
 hitherto exercised, and which are still claimed for it, by our 
 author, and the whole political school to which he belongs. The 
 propriety, and, indeed, the absolute necessity of the rule, appear 
 to me- to be obvious. If powers not granted might be used as 
 means of executing the granted powers, it is manifest that no 
 power whatever could be considered as denied. It is not enough 
 that there is no apparent unconstitutionality in the use of such 
 means, in the particular case. If they involve a principle 
 which will authorize the use of ungranted powers in any other 
 case, they are forbidden by the Constitution. To illustrate this 
 idea by an example. Congress has power to regulate commerce 
 among the several States. This is supposed by some to give 
 them power to open channels of commerce, by making roads, 
 cutting canals, &c., through the territories of the States. But 
 this is a substantive power in itself, not granted to the United 
 States, but reserved to the States respectively, and therefore is 
 not allowed as a means of regulating commerce among the 
 States. Let us suppose, however, that the opening of roads 
 and cutting of canals are the very best means of facilitating 
 and regulating commerce among the States, and that there is 
 nothing in the language of the Constitution to forbid it ; we 
 are still to enquire what farther powers would be necessarily 
 implied, as incidents of this. We find that the power to open 
 r*1041 a roac * though a *State, implies the power to keep it 
 in repair ; to impose fines and penalties on those
 
 OUR FEDERAL GOVERNMENT. 
 
 injure it, and, consequently, to enforce those fines and penalties 
 by the exercise of a jurisdiction over it. We find also, that 
 the power to make such a road, implies the power to locate it ; 
 and, as there is nothing to control the discretion of congress 
 in this respect, there is nothing to forbid them to locate their 
 road, upon the bed of a State canal, or along the whole course 
 of a State turnpike. The effect of this would be to transfer 
 to the United States, against the consent of the State, and 
 without compensation, improvements made by the State within 
 her own territory and at her own expense. Nay, the suprem- 
 acy claimed for the powers of congress in this respect would, 
 upon the same principle, authorize them to run a road through 
 the centre of a State capitol, or to cover half her territory with 
 roads and canals, over which the State could exert neither 
 jurisdiction nor control. The improvements of individuals too, 
 and of corporate bodies made under the authority of State laws, 
 would thus be held at the mercy of the United States. When 
 we see, then, that this means of regulating commerce among 
 the States would necessarily imply these vast and forbidden 
 powers, we should unhesitatingly reject them as unconstitu- 
 tional. This single instance, given by way of example and 
 illustration, presents a rule which, if strictly adhered to in all 
 analogous cases, would go far to remove the difficulties, and to 
 prevent the contests, which so often arise on this part of the 
 Constitution. 
 
 These few simple rules are, in their nature, technical, and 
 may at all times be easily applied, if congress will observe good 
 faith in the exercise of its powers. There is another of a more 
 enlarged and liberal character, which the word "proper" sug- 
 gests, and which, if applied with sound judgment, perfect 
 integrity and impartial justice, will render all others compara- 
 tively unnecessary. It exacts of congress an extended and 
 fair view of the relations of all the States, and a strictly impar- 
 tial regard to their respective rights and interests. Although 
 the direct action of a granted power, by the means also granted 
 in the Constitution, may be both unequal and unjust, those 
 means would, nevertheless, be perfectly constitutional. Such 
 injustice and inequality would be but the necessary consequence 
 of that imperfection, which characterizes every human institu-
 
 1Q4 TRUE NATURE AND CHARACTER OP 
 
 tion, and to which those who undertake to prescribe specific 
 rules to themselves, are bound to submit. But when congress 
 are called on to provide new means of executing a granted 
 power, none are "proper," and therefore none are constitu- 
 r*1051 tional which operate unequally and unjustly, *among 
 the States or the people. It is true that perfect and 
 exact equality in this respect is not to be expected ; but a near 
 approach to it will always be made, by a wise and fair legisla- 
 tion. Great and obvious injustice and inequality may at all 
 times be avoided. No "means" which involve these conse- 
 quences can possibly be considered "proper," either in a 
 moral, or in a constitutional sense. It requires no high intel- 
 lectual faculty to apply this rule ; simple integrity is all that is 
 required. 
 
 I have not thought it necessary to follow the author through 
 his extended examination of what he terms the incidental powers 
 of congress, arising under the clause of the Constitution we are 
 examining. It would be indeed an endless task to do so; for I 
 am unable to perceive that he proposes any limit to them at all. 
 Indeed, he tells us in so many words, that " upon the whole, 
 the result of the most careful examination of this clause is, that 
 if it does not enlarge, it cannot be construed to restrain the 
 powers of congress, or impair the right of the legislature to ex- 
 ercise its best judgment in the selection of measures to carry 
 into execution the constitutional powers of the national govern- 
 ment." This is, indeed, a sweep of authority, boundless and 
 unrestricted. The "best judgment" of congress is the only 
 limit proposed to its powers, whilst there is nothing to control 
 that judgment, nor to correct its errors. Government is aban- 
 doned emphatically to its own discretion ; for even if a correc- 
 tive be supposed to exist with the people, that corrective can 
 never be applied in behalf of an oppressed minority. Are the 
 rules which I have proposed indeed nothing? Is no effect 
 whatever to be given to this word "proper," in this clause of 
 the Constitution? Can the author possibly be right in suppos- 
 ing that the Constitution would be the same without it as with 
 it; and that the only object of inserting it was "the desire to 
 remove all possible doubt respecting the right to legislate on 
 that vast mass of incidental powers which must be involved in
 
 OUR FEDERAL GOVERNMENT. 105 
 
 the Constitution, if that instrument be not a splendid pageant, 
 or a delusive phantom of sovereignty?" It was, indeed, the 
 object of the framers of the Constitution " to remove all pos- 
 sible doubt" from this subject. They desired neither a splen- 
 did pageant nor a splendid government. They knew that with- 
 out this restriction ours would be both; and as powerful as 
 splendid. They did not design that any power with which they 
 thought proper to clothe it should be inoperative, for want of 
 means to carry it into execution ; but they never designed to 
 give it the boundless field of its own mere will, for the selection 
 of those means. Having specifically enumerated its powers, as 
 far as was practicable, *they never designed to involve 
 themselves in the absurdity of removing, by a single * 
 clause, every restriction which they had previously imposed. 
 They meant to assure their agent that, while none of the powers 
 with which they had thought proper to clothe it should be nu- 
 gatory, none of them should be executed by any means which 
 were not both "necessary" and "proper." 
 
 The lovers of a strong consolidated government have labored 
 strenuously, and I fear with too much success, to remove every 
 available restriction upon the powers of congress. The tendency 
 of their principles is to establish that legislative omnipotence 
 which is the fundamental principle of the British Constitution, 
 and which renders every form of written constitution idle and 
 useless. They suffer themselves to be too much attracted by 
 the splendors of a great central power. Dazzled by these 
 splendors, they lose sight of the more useful, yet less ostenta- 
 tious purposes of the State governments, and seem to be uncon- 
 scious that, in building up this huge temple of federal power, 
 they necessarily destroy those less pretending structures from 
 which alone they derive shelter, protection and safety. This is 
 the ignis fatuus which has so often deceived nations, and be- 
 trayed them into the slough of despotism. On all such, the im- 
 pressive warning of Patrick Henry, drawn from the lessons of 
 all experience, would be utterly lost. " Those nations who have 
 gone in search of grandeur, power and splendor, have also fallen 
 a sacrifice and been the victims of their own folly. While they 
 acquired those visionary blessings, they lost their freedom." 
 The consolidationists forget these wholesome truths, in their
 
 106 TRUE NATURE AND CHARACTER OF 
 
 eagerness to invest the federal government with every power 
 which is necessary to realize their visions in a great and splendid 
 nation. Hence they do not discriminate between the several 
 classes of federal powers, but contend for all of them, with the 
 same blind and devoted zeal. It is remarkable that, in the ex- 
 ercise of all those functions of the federal government which 
 concern our foreign relations, scarcely a case can be supposed, 
 requiring the aid of any implied or incidental power, as to which 
 any serious doubt can arise. The powers of that government, 
 as to all such matters, are so distinctly and plainly pointed out 
 in the very letter of the Constitution, and they are so ample for 
 all the purposes contemplated, that it is only necessary to un- 
 derstand them according to their plain meaning, and to exercise 
 them according to their acknowledged extent. No auxiliaries 
 are required ; the government has only to go on in the execution 
 of its trusts, with powers at once ample and unquestioned. It 
 is only in matters which concern our domestic policy, that any 
 serious *struggle for federal power has ever arisen, or 
 J is likely to arise. Here, that love of splendor and dis- 
 play, which deludes so large a portion of mankind, unites with 
 that self-interest by which all mankind are swayed, in aggran- 
 dizing the federal government, and adding to its powers. He 
 who thinks it better to belong to a splendid and showy govern- 
 ment, than to a free and happy one, naturally seeks to surround 
 {ill our institutions with a gaudy pageantry, which belongs only 
 to aristocratic or monarchical systems. But the great struggle 
 is for those various and extended powers, from the exercise of 
 which avarice may expect its gratifications. Hence the desire 
 for a profuse expenditure of public money, and hence the 
 thousand schemes under the name of internal improvements, by 
 means of which hungry contractors may plunder the public 
 treasury, and wily speculators prey upon the less skilful and 
 cunning. And hence, too, another sort of legislation, the most 
 vicious of the whole, which, professing a fair and legitimate ob- 
 ject of public good, looks, really, only to the promotion of pri- 
 vate interests. It is thus that classes are united in supporting 
 the powers of government, and an interest is created strong 
 enough to carry all measures, and sustain all abuses. 
 
 Let it be borne in mind that, as to all these subjects of do-
 
 OUR FEDERAL GOVERNMENT. 107 
 
 mestic concern, there is no absolute necessity that the federal 
 government should possess any power at all. They are all such 
 as the State governments are perfectly competent to manage ; 
 and the most competent, because each State is the best judge of 
 what is useful or necessary to itself. There is, then, no room to 
 complain of any want of power to do whatever the interests of 
 the people require to be done. This is the topic upon which our 
 author has lavishly expended his strength. Looking upon gov- 
 ernment as a machine contrived only for the public good, he 
 thinks it strange that it should not be supposed to possess all the 
 faculties calculated to answer the purposes of its creation. And 
 surely it would be strange, if it were, indeed, so defectively con- 
 structed. But the author seems to forget that in our system the 
 federal government stands not alone. That is but a part of the 
 machine ; complete in itself, certainly, and perfectly competent, 
 without borrowing aid from any other source, to work out its 
 own part of the general result. But it is not competent to work 
 out the whole result. The State governments have also their 
 part to perform, and the two together make the perfect work. 
 Here, then, are all the powers which it is necessary that govern- 
 ment should possess; not lodged in one place, but distributed; 
 not the power of the State governments, nor of the federal gov- 
 ernment, but the aggregate of their several and *respec- 
 tive powers. In the exercise of those functions which L 
 the State governments are forbidden to exercise, the federal 
 government need not look beyond the letter of its charter for 
 any needful power; and in the exercise of any other function, 
 there is still less necessity that it should do so; because, what- 
 ever power that government does not plainly possess, is plainly 
 possessed by the State governments. I speak, of cour.se, of 
 such powers only as may be exercised either by the one or the 
 other, and not of such as are denied to both. I mean only to 
 say, that so far as the States and the people have entrusted 
 power to government at all, they have done so in language plain 
 and full enough to render all implication unnecessary. Let the 
 federal government exercise only such power as plainly belongs 
 to it, rejecting all such as is even doubtful, and it will be found 
 that our system will work out all the useful ends of government, 
 harmoniously and without contest, and without dispute, and 
 without usurpation.
 
 108 TRUE NATURE AND CHARACTER OF 
 
 I have thus finished the examination of the political part of 
 these commentaries, and this is the only object with Ayhich this 
 review was commenced. There are, however, a few topics yet 
 remaining, of great public concern, and which ought not to be 
 omitted. Some of these, as it seems to me, have been pre- 
 sented by the author in false and deceptive lights, and others 
 of them, from their intrinsic importance, cannot be too often 
 pressed upon public attention. I do not propose to examine 
 them minutely, but simply to present them in a few of their 
 strongest lights. 
 
 In his examination of the structure and functions of the house 
 of representatives, the author has given his views of that clause of 
 the Constitution which allows representation to three-fifths of the 
 slaves. He considers the compromise upon this subject as unjust in 
 principle, and decidedly injurious to the people of the non-slave- 
 holding States. He admits that an equivalent for this supposed 
 concession to the South was intended to be secured by another 
 provision, which directs that "Representatives and direct taxes 
 shall be apportioned among the several States, according to 
 their respective numbers ;" but he considers this provision 
 " more specious than solid ; for while in the levy of taxes it ap- 
 portions them on three-fifths of persons not free, it on the other 
 hand, really exempts the other two-fifths from being taxed at 
 all as property. Whereas, if direct taxes had been apportioned, 
 as upon principle they ought to be, according to the real value 
 of property within the State, the whole of the slaves would have 
 been taxable as property. But a far more striking inequality 
 has been disclosed *by the practical operations of the 
 -1 government. The principle of representation is con- 
 stant and uniform ; the levy of direct taxes is occasional and 
 rare. In the course of forty years, no more than three direct 
 taxes have been levied, and those only under very extraordinary 
 and pressing circumstances. The ordinary expenditures of the 
 government are, and always have been, derived from other 
 sources. Imposts upon foreign importations have supplied, and 
 will generally supply, all the common wants; and if these 
 should not furnish an adequate ' revenue, excises are next re- 
 sorted to, as the surest and most convenient mode of taxation.
 
 OUR FEDERAL GOVER]S 7 MENT. 109 
 
 Direct taxes constitute the last resort ; and, as might have been 
 foreseen, would never be laid until other resources had failed." 
 This is a very imperfect, and, as it seems to me, not a very can- 
 did view of a grave and important subject. It would have been 
 well to avoid it altogether, if it had been permitted ; for the 
 public mind needs no encouragement to dwell, with unpleasant 
 reflections, upon the topics it suggests. In an examination of 
 the Constitution of the United States, however, some notice of 
 this peculiar feature of it was unavoidable ; but we should not 
 have expected the author to dismiss it with such criticism only 
 as tends to show that it is unjust to his own peculiar part of 
 the country. It is manifest to every one that the arrangement 
 rests upon no particular principle, but is a mere compromise 
 between conflicting interests and opinions. It is much to be 
 regretted that it is not on all hands acquiesced in and approved, 
 upon that ground ; for no public necessity requires that it should 
 be discussed, and it cannot now be changed without serious 
 danger to the whole fabric. The people of the slave-holding 
 States themselves have never shown a disposition to agitate the 
 question at all, but, on the contrary, have generally sought to 
 avoid it. It has, however, always "been complained of as a 
 grievance," by the non-slaveholding States, and that too in 
 language which leaves little doubt that a wish is very generally 
 entertained to change it. A grave author, like Judge Story, 
 who tells the people, as it were ex cathedra, that the thing is 
 unjust in itself, will scarcely repress the dissatisfaction, which 
 such an announcement, falling in with preconceived opinions, 
 will create, by a simple recommendation to acquiesce in it as a 
 compromise, tending upon the whole to good results. His 
 remarks may render the public mind more unquiet than it now 
 is ; they can scarcely tranquillize or reconcile it. For myself, 
 I am very far from wishing to bring the subject into serious 
 discussion, with any view to change; but I cannot agree that 
 an arrangement, obviously injurious to the South, should be 
 *held up as giving her advantages of which the North has 
 reason to complain. 
 
 I will not pause to inquire whether the rule apportioning 
 representatives according to numbers, which, after much con- 
 test, was finally adopted by the convention, be the correct one
 
 TRUE NATURE AND CHARACTER OF 
 
 or not. Supposing that it is so, the rule which apportions 
 taxation in the same way, follows as matter of course. The 
 difficulties under which the convention seem to have labored, 
 in regard to this subject, may well excite our surprise, at the 
 present day. If the North really supposed that they conceded 
 any thing to the South, by allowing representation to three- 
 fifths of their slaves, they were certainly but poorly compen- 
 sated for the concession, by that provision of the Constitution 
 which apportions taxation according to representation. This 
 principle was universally acknowledged throughout the United 
 States, and is, in fact, only a modification of the great princi- 
 ple upon which the revolution itself was based. That taxation 
 should be apportioned to representation, results from the feder- 
 ative character of our government ; and the fact that this rule 
 was adopted, sustains the views which have been presented, 
 upon this point. It would have been indeed strange, if some 
 one State, having only half the representatives of its neighbor 
 State, might yet have been subjected to twice the amount of 
 taxation ; Delaware, for instance, with her one representative, 
 to twice the taxes of Pennsylvania, with her twenty-eight. A 
 different rule from that which prevails might subject the weaker 
 States to intolerable oppression. A combination among a few 
 of the strongest States might, by a little management, throw 
 the whole burthen of taxation upon the others, by selecting 
 only such subjects of taxation as they themselves did not pos- 
 sess, or which they possessed only to a comparatively small 
 extent. It never would have answered to entrust the power of 
 taxation to congress, without some check against these and 
 similar abuses, and no check could have been devised, more 
 effective or more appropriate than the provision now under con- 
 sideration. All the States were interested in it ; and the South 
 much more deeply than the North. The slaves of the South 
 afford the readiest of all possible subjects for this sort of prac- 
 tice ; and it would be going too far to say that they would not, 
 at some day or other, be selected for it, if this provision of the 
 Constitution did not stand in the way. The Southern States 
 would certainly never have adopted the Constitution, without 
 some such guaranty as this, against those oppressions to which 
 their peculiar institutions exposed them ; and the weaker States,
 
 OUR FEDERAL GOVERNMENT. 
 
 whether north or south, would never have adopted it, because it 
 might lead to *their utter annihilation in the confede- 
 racy. This provision of the Constitution, therefore, can L 
 scarcely be considered as an equivalent for any thing conceded 
 by some of the States to others. It resulted necessarily from 
 the very nature of their union : it is an appropriate and neces- 
 sary feature in every confederacy between sovereign States. 
 We ought, then, to regard that provision of the Constitution, 
 which allows representation to only three-fifths of the slaves, 
 as a concession made by the South; and one for which they 
 received no equivalent, except in the harmony which it served 
 to produce. 
 
 Reverting to the rule, that representation shall be appor- 
 tioned to population, and supposing that all parties acquiesce in 
 the propriety of it, upon what principle is the rule itself founded ? 
 We have already seen that the whole country had adopted the 
 principle, that taxation should be apportioned to representa- 
 tion, and, of course, in fixing the principle of representation, 
 the question of taxation was necessarily involved. There is no 
 perfectly just rule of taxation, but property ; every man should 
 contribute to the support of the government, according to his 
 ability, that is, according to the value of that property to which 
 government extends its protection. But this rule never can be 
 applied in practice ; because it is impossible to discover what is 
 the amount of the property, either of individuals or nations. 
 In regard to states, population is the best measure of this 
 value which can be found, and is, in most cases, a sufficiently 
 accurate one. Although the wealth of a state cannot be ascer- 
 tained, its people can be easily counted, and hence the number 
 of its people gives the best rule for its representation, and con- 
 sequently, for its taxation. 
 
 The population of a state is received as the best measure of 
 the value of its property, because it is in general true, that 
 the greater the number of people, the greater is the amount 
 of productive industry. But of what consequence is it, by 
 ivhat sort of people this amount of production is afforded ? It 
 was required that each State of our Union should contribute its 
 due proportion to the common treasury ; a proportion ascertained 
 9
 
 TRUE NATURE AND CHARACTER OF 
 
 by the number of its people. Of -what consequence is it, whether 
 this contribution be made by the labor of slaves, or by that of 
 freemen? All that the States had a right to require of one 
 another was, that each should contribute its allotted proportion ; 
 but no State had a right to enquire from what particular sources 
 that contribution arose. Each State having a perfect right to 
 frame its own municipal regulations for itself, the other States 
 had no right to subject her to any disabilities or disadvantages 
 on account of them. If Massachusetts had a right to object to 
 the representation *of the slaves of Virginia, Virginia 
 L J- 1 - 1 J had the same right to object to the representation of the 
 apprentices, the domestic servants, or even the mechanics of 
 Massachusetts. The peculiar private condition and relations 
 of the people of a State to one another could not properly be 
 enquired into by any other State. That is a subject which 
 each State regulates for itself; and it cannot enter into the 
 question of the influence which such State ought to possess, in 
 the common government of all the States. It is enough that the 
 State brings into the common stock a certain amount of wealth, 
 resulting from the industry of her people. Whether those 
 people be men or women, bond or free, or bound to service for 
 a limited time only, is the exclusive concern of the State itself, 
 and is a matter with which the other States cannot intermeddle, 
 without impertinence, injustice and oppression. So far, then, 
 from limiting representation to three-fifths of the slaves, they 
 ought all to be represented, for all contribute to the aggregate 
 of the productive industry of the country. And, even then, 
 the rule would operate injuriously upon the slave-holding 
 States ; for, if the labor of a slave be as productive as that of 
 a free man, (and in agriculture it is so,) the cost of supporting 
 him is much less. Therefore, of the same amount of food and 
 clothing, raised by the two classes, a greater surplus will 
 remain of that of the slave, and of course a greater amount 
 subject to the demands of the public necessities. 
 
 The remarks of John Adams, delivered in convention,* are 
 very forcible upon this point. According to Mr. Jefferson's 
 report of them, he observed, " that the numbers of people are 
 
 * Mr. Adams was not a member of the convention. This speech was made 
 in congress in deliberating on the articles of confederation. [Ed.]
 
 OUR FEDERAL GOVERNMENT. H2 
 
 taken as an index of the wealth of the state, and not as sub- 
 jects of taxation ; that, as to this matter it was of no conse- 
 quence by what name you called your people, whether by that 
 of freemen or of slaves; that in some countries the laboring 
 poor are called freemen, in others they are called slaves ; but 
 that the difference, as to the state, was imaginary only. "What 
 matters it whether a landlord, employing ten laborers on his 
 farm, gives them annually as much money as will buy them the 
 necessaries of life, or gives them those necessaries at short 
 hand? The ten laborers add as much wealth to the state, 
 increase its exports as much, in the one case as in the other. 
 Certainly five hundred freemen produce no more profits, no 
 greater surplus for the payment of taxes, than five hundred 
 slaves. Therefore the State, in which are the laborers called 
 freemen, should be taxed no more than that in which are the 
 laborers called slaves. Suppose by an extraordinary operation 
 of nature or of law, one-half the laborers of a State could, in 
 the course of one night, be transformed into slaves, would the 
 State be *made poorer or less able to pay taxes? r#11 on 
 That the condition of the laboring poor in most coun- *- 
 tries, that of the fishermen particularly of the Northern States, 
 is as abject as that of slaves. It is the number of laborers 
 which produces the surplus for taxation, and numbers therefore, 
 indiscriminately, are the fair index to wealth." 
 
 It is obvious that these remarks were made for a very different 
 purpose from that which I have in view. The subject then be- 
 fore the convention was the proper rule of taxation, and it was Mr. 
 Adams' purpose to show that, as to that matter, slaves should be 
 considered only as people, and, consequently, as an index of 
 the amount of taxable wealth. The convention had not then de- 
 termined that representatives and direct taxes should be regu- 
 lated by the same ratio. When they did determine this, the re- 
 marks of Mr. Adams seem to me conclusive, to show that repre- 
 sentation of all the slaves ought to have been allowed ; nor do 
 I see how those who held his opinions could possibly have voted 
 otherwise. If slaves are people, as forming the measure of na- 
 tional wealth, and consequently of taxation, and if taxation 
 and representation be placed upon the same principle, and 
 regulated by the same ratio, then that slaves are people, in
 
 TRUE NATURE AND CHARACTER OF 
 
 fixing the ratio of representation, is a logical sequitur which no 
 one can possibly deny. 
 
 But it is objected that slaves are property, and, for that rea- 
 son, are not more entitled to representation than any other 
 species of property. But they are also people, and, upon ana- 
 logous principles, are entitled to representation as people. It 
 is in this character alone that the non-slave-holding States have 
 a right to consider them, as has already been shown, and in this 
 character alone is it just to consider them. "We ought to pre- 
 sume that every slave occupies a place which, but for his pres- 
 ence, would be occupied by a free white man ; and, if this were 
 so, every one, and not three-fifths only, would be represented. 
 But the States who hold no slaves have no right to complain 
 that this is not the case in other States, so long as the labor of 
 the slave contributes as much to the common stock of productive 
 industry, as the labor of the white man. It is enough that a 
 State possesses a certain number of people, of living, rational 
 beings. We are not to enquire whether they be black, or white, 
 or tawny, nor what are their peculiar relations among one an- 
 other. If the slave of the south be property, of what nature is 
 that property, and what kind of interest has the owner in it ? 
 He has a right to the profits of the slave's labor. And so, the 
 master of an indented apprentice has a right to the profits of 
 his labor. It is true, one holds the right for the life of the 
 
 r*114"l s ^ ave ' an< ^ **^ e otner on ty f r a ^ me limited in the ap- 
 prentices' indentures ; but this is a difference only in 
 ihe extent, and not in the nature of the interest. It is also 
 ,trae, that the owner of a slave has, in most States, a right to 
 .sett him ; but this is only because the laws of the State autho- 
 rize him to do so. And, in like manner, the indentures of an 
 apprentice may be transferred if the laws of the State will al- 
 low it. In all these respects, therefore, the slave and the in- 
 dented apprentice stand upon precisely the same principle. To 
 a certain extent, they are both property, and neither of them 
 can be regarded as a free man ; and if the one be not entitled 
 to representation, the other also should be denied that right. 
 Whatever be the difference of their relations to the separate 
 members of the community, in the eye of that community they 
 are both people. Here, again, Mr. Adams shall speak for me ;
 
 OUR FEDERAL GOVERNMENT. 114 
 
 and our country has produced few men Avho could speak more 
 wisely. " A slave may indeed, from the custom of speech, be 
 more properly called the wealth of his master, than the free la- 
 borer might be called the wealth of his employer ; but as to the 
 State, both are equally its wealth, and should therefore equally 
 add to the quota of its tax." Yes ; and, consequently, they 
 should equally add to the quota of its representation. 
 
 Our author supposes that it is a great advantage to the slave- 
 holding States that, while three-fifths of the slaves are entitled 
 
 O ' 
 
 to representation, Zwo-fifths are exempted from taxation. Why 
 confine it to three-fifths ? Suppose that none of them were en- 
 titled to representation, the only consequence would be, that 
 the State would have fewer representatives, and, for that reason, 
 would have a less amount of taxes to pay. In this case, all the 
 slaves would be exempted from taxation ; and, according to our 
 author, the slave-holding States would have great reason to be 
 content with so distinguishing an advantage. And, for the 
 same reason, every other State would have cause to rejoice at 
 the diminution of the number of its people, for although its re- 
 presentation would thereby be decreased, its taxes would be 
 decreased in the same proportion. This is the true mode of 
 testing the author's position. It will be found that every State 
 values the right of representation at a price infinitely beyond 
 the amount of direct taxes to which that right may subject it ; 
 and, of course, the Southern States have little reason to be 
 thankful that two-fifths of their slaves are exempted from taxa- 
 tion, since they lose, in consequence of it, the right of repre- 
 sentation to the same extent. The author, however, seems to 
 have forgotten this connexion between representation and taxa- 
 tion ; he looks only at the sources whence the Union may draw 
 wealth from * the South, without enquiring into the r*-i-|c-i 
 principles upon which her representation may be en- 
 larged. He thinks that direct taxes ought to be apportioned, 
 " according to the real value of property within the State;" in 
 which case " the whole of the slaves would have been taxable 
 as property." I have already remarked that this is, indeed, 
 the true rule ; but it is wholly impracticable. It would be alike 
 impossible to fix a satisfactory standard of valuation, and to 
 discover the taxable subjects. No approximation to the truth
 
 TRUE NATURE AND CHARACTER OP 
 
 could be hoped for, -without a host of officers, whose compensa- 
 tions would consume a large proportion of the tax, while, from 
 the very nature of their duties, they would be forced into minute 
 examinations, inconsistent with the freedom of our institutions, 
 harassing and vexatious in their details, and leading inevitably 
 to popular resistance and tumult. And this process must be gone 
 through at every new tax ; for the relative wealth of the States 
 would be continually changing. Hence, population has been 
 selected as the proper measure of the wealth of the States. 
 But, upon our author's principle, the South would be, indeed, 
 little better off than the lamb in the embrace of the wolf. The 
 slaves are easily found ; they can neither be buried under 
 ground, nor hid in the secret drawers of a bureau. They are 
 peculiar, too, to a particular region ; and other regions, having 
 none of them, would yet have a voice in fixing their value as 
 subjects of taxation. That they would bear something more 
 than their due share of this burthen, is just as certain as that 
 man, under all circumstances, will act according to his nature. 
 In the mean time, not being considered as people, they would 
 have no right to be heard in their own defence, through their 
 representatives in the federal councils. On the other hand, the 
 non-slave-holding States would be represented in proportion to 
 the whole numbers of their people, and would be taxed only 
 according to that part of their wealth which they might choose 
 to disclose, or which they could not conceal. And in the esti- 
 mate of this wealth, their people would not be counted as taxa- 
 ble subjects, although they hold to their respective States pre- 
 cisely the same relation, as laborers and contributors to the 
 common treasury, as is held by the slaves of the South to their 
 respective States. The rule, then, which considers slaves only 
 as property to be taxed, and not as people to be represented, 
 is little else than a rule imposing on the Southern States almost 
 the entire burthens of the government, and allowing to them 
 only the shadow of influence in the measures of that govern- 
 ment. 
 
 The truth is, the slave-holding States have always contributed 
 
 more than their just proportion to the wealth and strength of 
 
 f *116~1 *^ e coun t ;r y> *and not less than their just proportion to 
 
 its intelligence and public virtue. This is the only
 
 OUR FEDERAL GOVERNMENT. 
 
 perfectly just measure of political influence ; but it is a meas- 
 ure which cannot be applied in practice. We receive popula- 
 tion as the best practicable substitute for it; and as allpeopfe, 
 whatever be their private and peculiar conditions and relations, 
 are presumed to contribute their share to the stock of general 
 wealth, intelligence and virtue, they are all entitled to their re- 
 spective shares of influence in the measures of government. The 
 slave-holding States, therefore, had a right to demand that all 
 their slaves should be represented ; they yielded too much in 
 agreeing that only three-fifths of them should possess that 
 right. I cannot doubt that this would have been conceded by 
 the convention, had the principle, that representatives and direct 
 taxes should be apportioned according to the same ratio, been 
 then adopted into the Constitution. It would have been per- 
 ceived that, while the representation of the Southern States would 
 thus have been increased, their share of the public taxes would 
 have been increased in the same proportion ; and thus they 
 would have stood, in all respects, upon the same footing with 
 the other States. The Northern States would have said to them, 
 "Count your people ; it is of no consequence to us what is their 
 condition at home ; they are laborers, and therefore they con- 
 tribute the same amount of taxable subjects, whether black or 
 white, bond or free. We therefore recognize them as people, 
 and give them representation as such. All that we require is, 
 that when we come to lay direct taxes, they shall be regarded 
 as people still, and you shall contribute for them precisely as 
 we contribute for our people." This is the plain justice of the 
 case ; and this alone would be consistent with the great princi- 
 ples which ought to regulate the subject. It is a result which is 
 no longer attainable, and the South will, as they ought to do, 
 acquiesce in the arrangement as it now stands. But they have 
 reason to complain that grave authors, in elaborate works de- 
 signed to form the opinions of rising generations, should so treat 
 the subject as to create an impression that the Southern States 
 are enjoying advantages under our Constitution, to which they 
 are not fairly entitled, and which they owe only to the liberality 
 of the other States; for the South feels that these supposed ad- 
 vantages are, in fact, sacrifices, which she has made only to a
 
 TRUE NATURE AN 7 D CHARACTER OF 
 
 spirit of conciliation and harmony, and which neither justice 
 nor sound principle would ever have exacted of her. 
 
 The most defective part of the Federal Constitution, beyond 
 all question, is that which relates to the executive depart- 
 ment. It is impossible to read that instrument, without 
 
 117n being forcibly struck with *the loose and unguarded 
 J terms in which the powers and duties of the President 
 are pointed out. So far as the legislature is concerned, the 
 limitations of the Constitution are, perhaps, as precise and 
 strict as they could safely have been made ; but in regard to 
 the executive, the convention appear to have studiously selected 
 such loose and general expressions, as would enable the Presi- 
 dent, by implication and construction, either to neglect his du- 
 ties, or to enlarge his powers. We have heard it gravely as- 
 serted in congress, that whatever power is neither legislative nor 
 judiciary, is, of course, executive, and, as such, belongs to the 
 President, under the Constitution ! How far a majority of that 
 body would have sustained a doctrine so monstrous, and so ut- 
 terly at war with the whole genius of our government, it is im- 
 possible to say ; but this, at least, we know, that it met with no 
 rebuke from those who supported the particular act of executive 
 power, in defence of which it was urged. Be this as it may, it 
 is a reproach to the Constitution, that the executive trust is so 
 ill-defined, as to leave any plausible pretence, even to the insane 
 zeal of party devotion, for attributing to the President of the 
 United States the powers of a despot; powers which are wholly 
 unknown in any limited monarchy in the world. 
 
 It is remarkable that the Constitution is wholly silent in re- 
 gard to the power of removal from office. The appointing power 
 is in the President and senate; the President nominating, and 
 the senate confirming; but the power to remove from office 
 seems never to have been contemplated by the convention at 
 all, for they have given no directions whatever upon the subject. 
 The consequence has been precisely such as might have been 
 expected, a severe contest for the possession of that power, and 
 the ultimate usurpation of it, by that department of the govern- 
 ment to which it ought never to be entrusted. In the absence 
 of all precise directions upon the subject, it would seem that the 
 power to remove ought to attend the power to appoint; for
 
 OUR FEDERAL GOVERNMENT. H7 
 
 those whose duty it is to fill the offices of the country with compe- 
 tent incumbents, cannot possibly execute that trust fully and well, 
 unless they have power to correct their own errors and mistakes, 
 by removing the unworthy, and substituting better men in their 
 places. This, I have no doubt, is the true construction of our 
 Constitution. It was for a long time strenuously contended for 
 by a large party in the country, and was finally yielded, rather 
 to the confidence which the country reposed in the virtues 
 of Washington, than to any conviction that it was properly an 
 executive power, belonging only to the President. It is true of 
 Washington alone of all the truly *great of the earth, that 
 he never inflicted an injury upon his country, except only L 
 such as proceeded from the excess of his own virtues. His known 
 patriotism, wisdom and purity, inspired us with a confidence and a 
 feeling of security against the abuses of power, which has led 
 to the establishment of many precedents, dangerous to public 
 liberty in the hands of any other man. Of these, the instance 
 before us is not the least important. The power to remove from 
 office is, in effect, the power to appoint to office. What does it 
 avail that the senate must be consulted in appointing to office, 
 if the President may, the very next moment, annul the act by 
 removing the person appointed ! The senate has no right to 
 select ; they can do nothing more than confirm or reject the 
 person nominated by the President. The President may nomi- 
 nate his own devoted creatures ; if the senate should disapprove 
 any one of them, he has only to nominate another, and another, 
 and another; for there is no danger that the list will be ex- 
 hausted, until the senate will be persuaded or worried into com- 
 pliance. And when the appointment is made, the incumbent 
 knows that he is a mere tenant at will, and necessarily becomes 
 the mere tool and slave of the man at whose sole pleasure he 
 eats his daily bread. Surely, it is a great and alarming defect 
 in our Constitution, that so vast and dangerous a power as this 
 should be held by one man. Nothing more is required to place 
 the liberties of the country at the feet of the President, than to 
 authorize him to fill, and to vacate and to fill again, at his sole 
 will and pleasure, all the offices of the country. 
 
 The necessary consequence of enabling the President to re- 
 move from office at his mere pleasure is, that the officer soon
 
 TRUE NATURE AND CHARACTER OF 
 
 learns to consider himself the officer of the President, and not 
 of the country. The nature of his responsibility is changed; 
 he answers not to the people for his conduct, for he is beyond 
 their reach; he looks only to the President, and, satisfied with 
 his approval, is regardless of every thing else. In fact, his 
 office, however obscure it may be, soon comes to be considered 
 only a part of the great executive power lodged in the President. 
 The President is the village postmaster, the collector of the 
 customs, the marshal, and every thing else ; and the incumbents 
 of those offices are but his agents, through whom, for the sake 
 of convenience, he exercises so much of his gigantic powers. 
 One step farther, and the agency of the senate in these appoint- 
 ments will be no longer invoked. A little more of that con- 
 struction and implication to which the looseness of the Constitu- 
 tion, on this point, holds out the strongest invitation, and the 
 President will say to the senate, " This collectorship is a part of 
 the great executive trust which is lodged in *me ; 
 -1 I have a right to discharge it in person, if I please, 
 and, consequently, I have a right to discharge it by my own 
 agent. It is my duty to see that the laws are executed ; and 
 if I do so, that is all that the country can require of me. I 
 have a right to do so in my own way." There is no extrava- 
 gance in this supposition ; nothing in the past history of the 
 country which teaches us to consider it an improbable result. 
 Who does not perceive that the claims which have already been 
 made, in behalf of executive power upon this very point, must of 
 necessity change the whole nature and spirit of our institutions ? 
 Their fundamental principle is, that all power is in the people, 
 and that public officers are but their trustees and servants, re- 
 sponsible to them for the execution of their trusts. And yet, 
 in the various ramifications of the executive power, in the thou- 
 sand agencies necessary to the convenience and interests of the 
 people, which belong to that department, there is, in effect, no 
 responsibility whatever. The injured citizen can make his 
 complaint only to the President, and the President's creature 
 knows that he is perfectly secure of his protection, because he 
 has already purchased it by slavish subserviency. Is it enough 
 that the President himself is responsible ? We shall soon see 
 that his responsibility is nominal only ; a mere formal mockery.
 
 OUR FEDERAL GOVERNMENT. H9 
 
 And responsible for what ? "Will you impeach the President 
 because a postmaster has robbed the public mail, or a collector 
 of the customs stolen the public money ? There is absurdity in 
 the very idea. Will you impeach him because he does not re- 
 move these unfaithful agents, and appoint others ? He will tell 
 you that, according to the construction which has been given to 
 the Constitution, and in which you yourselves have acquiesced, 
 that matter depends solely on his own will, and you have no 
 right to punish him for what the Constitution authorizes him to 
 do. What then is the result? The President claims every 
 power which, by the most labored constructions, and the most 
 forced implications, can be considered as executive. No matter 
 in how many hands they are distributed, he wields them all ; 
 and when we call on him to answer for an abuse of those powers, 
 he gravely tells us, that his agents have abused them, and not 
 he. And when we call on those agents to answer, they impu- 
 dently reply, that it is no concern of ours, they will answer to 
 the President! Thus powers may be multiplied and abused 
 without end, and the people, the real sovereigns, the deposi- 
 taries of all power, can neither check nor punish them ! 
 
 This subj ect certainly calls loudly for public attention. We ought 
 not to lose sight of the rapid progress we have made in the decline 
 of *public virtue. It becomes us to understand that we 
 have, no longer, Washingtons among us, to whose pure *- 
 hands the greatest powers may be safely entrusted. We are 
 now in that precise stage of our progress, when reform is not 
 impossible, and when the practical operation of the government 
 has shown us in what particulars reform is necessary. If we 
 regard our government, not as the mere institution of the hour, 
 but as a system which is to last through many successive gen- 
 erations, protecting and blessing them, it becomes us to correct 
 its faults, to prune its redundancies, to supply its defects, to 
 strengthen its weak points, and check its tendency to run into 
 irresponsible power. If this be not speedily done, it requires 
 no prophet's eye to see that it will not be done at all. And 
 whenever this great and necessary work shall be undertaken, the 
 single reform which is here suggested will accomplish half that 
 is required. 
 
 Another striking imperfection of the Constitution, as respects
 
 120 TRUE NATURE AND CHARACTER OF 
 
 the executive department, is found in the veto power. The 
 right to forbid the people to pass whatever laws they please, is 
 the right to deprive them of self-government. It is a power 
 which can never be entrusted to one man, or any number of 
 men short of the people themselves, without the certain destruc- 
 tion of public liberty. It is true that each department of the 
 government should be armed with a certain power of self-pro- 
 tection against the assaults of the other departments ; and the 
 executive, probably, stands most in need of such protection. 
 But the veto power, as it stands in the Constitution, goes far 
 beyond this object. It is, in effect, a power in the executive 
 department to forbid all action in any other. It is true that, 
 notwithstanding the veto of the President, a law may still be 
 passed, provided two-thirds of each house of congress agree 
 therein ; but it is obvious that the cases are very rare, in which 
 such concurrence could be expected. In cases of plain necessity 
 or policy the veto would not be applied ; and those of doubtful 
 necessity or policy would rarely be carried by a majority so 
 large as two-thirds of each house. And yet in these it may be 
 just as important that the public will should be carried out, as 
 in cases of less doubt and difficulty. It may be, also, that a 
 President may oppose the passage of laws of the plainest and 
 most pressing necessity. And if he should do so, it would cer- 
 tainly give him a most improper power over the people, to en- 
 able him to prevent the most necessary legislation, with only 
 one-third of each house of congress in his favor. There is some- 
 thing incongruous in this union of legislative and executive 
 powers in the same man. Perhaps it is proper that there should 
 be a power somewhere, to check hasty and *ill-con- 
 -* sidered legislation, and that power may be as well en- 
 trusted to the President as to any other authority. But it is 
 not necessary that it should be great enough to prevent all le- 
 gislation, nor to control in any respect the free exercise of the 
 legislative will. It would be quite enough for the security of 
 the rights of the executive, and quite enough to ensure tempe- 
 rate and wise legislation, to authorize the President merely to 
 send back to the legislature for reconsideration any law which 
 he disapproved. By thus affording to that body time and op- 
 portunity for reflection, with all the additional lights which the
 
 OUR FEDERAL GOVERNMENT. 121 
 
 President himself could throw upon the subject, we should have 
 every reasonable security for the due exercise of the legislative 
 wisdom, and a fair expression of the public will. But if, after 
 all this, the legislature, in both its branches, should still adhere 
 to their opinion, the theory and the sound practice of all our 
 institutions require that their decision should be binding and 
 final. 
 
 But the great defect of the Constitution in relation to this 
 department is, that the responsibility of the President is not 
 duly secured. I am sensible of the great difficulty which 
 exists in arranging this subject properly. It is scarcely pos- 
 sible to lodge the power of impeachment any where, without 
 subjecting it to the danger of corrupting influences ; and it is 
 equally difficult so to limit the extent and direct the exercise of 
 that power, as to reconcile a proper responsibility in the officer, 
 with a proper independence and sense of security, in the dis- 
 charge of his duties. The power to try impeachments is cor- 
 rectly lodged with the senate, the representative of the States ; 
 for, as the government, with all its offices, was created by the 
 States, the States alone should have the right to try and to 
 remove the' delinquent incumbents. But in the exercise of this 
 power, the concurrence of too large a proportion is made neces- 
 sary to conviction. The same reasoning applies here which 
 was applied to the veto power. Nothing short of the most 
 flagrant and indisputable guilt will ever subject a president to 
 removal by impeachment. He must be, indeed, but little prac- 
 ticed in the ways of men, or strangely misled and infatuated, if, 
 with all the means which his office places within his control, he 
 cannot bring over at least one-third of the senate to his support. 
 
 It is scarcely to be supposed that a man elected by the suf- 
 frages of a majority of the States would, within the short 
 period of four years, so far forfeit his standing with the public, 
 as not to retain the confidence of at least one-third of them. 
 Besides, he has abundant means of influencing the conduct of 
 his triers, however strong may be public opinion against him. 
 To require, therefore, the concurrence of two-thirds *of 
 the senators present, is, in effect, to render the whole L 
 process an idle form. It might not be safe, however, to repose 
 this high trust in a bare majority. The object to be attained
 
 122 TRUE NATURE AXD CHARACTER OF 
 
 is, on the one hand, to make the number authorized to convict 
 so lare, as to afford a reasonable assurance that there will be 
 
 O " 
 
 no conviction without clear proof of guilt, and, on the other, 
 to make it so small, as to afford equal assurance that the guilty 
 will not escape. I do not pretend to suggest how large the 
 majority ought to be, in order to ensure this result ; but it is 
 perfectly certain that, as the matter now stands, in nine-tenths 
 of the cases in which the power may be called into exercise, it 
 will be found utterly unavailing for any good purpose. Indeed, 
 it can scarcely fail to be extremely mischievous ; for a charge 
 of guilt preferred, and not sustained, will always strengthen 
 the President, by enlisting public sympathy in his favor, and 
 will thus indirectly sanction the very abuse for which he was 
 subjected to trial. A President tried and acquitted will always 
 be more powerful than he would have been, had he done nothing 
 to bring his conduct into question. 
 
 There is a species of responsibility to which the President is 
 subjected, in the fact that the people may refuse to re-elect 
 him. This will certainly be felt in some degree, by those Pre- 
 sidents for whom a re-election possesses greater charms than 
 any possible abuse of power. But this is, under any circum- 
 stances, a feeble security to the people ; and it will be found 
 of no value whatever, as soon as the government shall have 
 approached a little nearer, than at present, to the confines of 
 absolute power. Besides, the reasoning could not apply to a 
 President in his second term, and who, according to the esta- 
 blished usage, could not expect to be re-elected. This is the 
 period through which he may revel in all the excesses of usurped 
 authority, without responsibility, and almost without check or 
 control. 
 
 The re-eligibility of the President, from term to term, is the 
 necessary source of numberless abuses. The fact that the same 
 President may be elected, not for a second term only, but for a 
 third, or fourth, or twentieth, will ere long suggest to him the 
 most corrupting uses of his powers, in order to secure that 
 object. At present there is no danger of this. Presidents are 
 now made, not by the free suffrages of the people, but by party 
 management ; and there are always more than one in the suc- 
 cessful party, who are looking to their own turn in the presi-
 
 OUR FEDERAL GOVERNMENT. 122 
 
 dential office. It is too early yet for a monopoly of that high 
 honor ; but the time will come, when the actual incumbent will 
 find means to buy off opposition, and to ensure a continuance in 
 office, by prostituting the trusts which belong to it. This is 
 so obviously within *the natural course of things, that 
 it may well excite our surprise that the convention "- 
 should have left the public liberty wholly unguarded, at so 
 assailable a point. It is surely a plain dictate of wisdom, and 
 a necessary provision in every free government, that there 
 should be some definite limit to the duration of executive power, 
 in the same hands. We cannot hope to be free from the cor- 
 ruptions which result from an abuse of presidential power and 
 patronage, until that officer shall be eligible tfnly for one term 
 a long term if you please and until he shall be rendered 
 more easily and directly responsible to the power which appoints 
 him. 
 
 Regarding this work of Judge Story as a whole, it is impos- 
 sible not to be struck with the laborious industry which he has 
 displayed, in the collection and preparation of his materials. 
 He does not often indulge himself in speculations upon the 
 general principles of government, but confines himself, with 
 great strictness, to the particular form before him. Consider- 
 ing him as a mere lawyer, his work does honor to his learning 
 and research, and will form a very useful addition to our law 
 libraries. But it is not in this light only that we are to view 
 it. The author is a politician, as well as a lawyer, and has 
 taken unusual pains to justify and recommend his own peculiar 
 opinions. This he has done, often at the expense of candor 
 and fairness, and, almost invariably, at the expense of historical 
 truth. We may well doubt, therefore, whether his book will 
 not produce more evil than good, to the country; since the false 
 views which it presents,- of the nature and character of our 
 government, are calculated to exert an influence over the public 
 mind, too seriously mischievous to be compensated by any new 
 lights which it sheds upon other parts of our Constitution. 
 Indeed, it is little else than a labored panegyric upon that in- 
 strument. Having made it, by forced constructions, and strange 
 misapprehensions of history, to conform to his own beau ideal 
 of a perfect government, he can discern in it nothing that is
 
 123 TRUE NATURE AND CHARACTER OF 
 
 deficient, nothing that is superfluous. And it is his particular 
 pleasure to arm it with strong powers, and surround it with 
 imposing splendors. In his examination of the legislative de- 
 partment, he has displayed an extraordinary liberality of con- 
 cession, in this respect. There is not a single important power 
 ever exercised or claimed for congress, which he does not vin- 
 dicate and maintain. The long contested powers to protect 
 manufactures, to construct roads, with an endless list of similar 
 objects to which the public money may be applied, present no 
 serious difficulty to his mind. An examination of these several 
 subjects, in detail, would swell this review beyond its proper 
 limits, and is rendered Unnecessary by the great prin- 
 L ^ J ciples which it has been my object to establish. I 
 allude to them here, only as illustrating the general character 
 of this book, and as showing the dangerous tendency of its 
 political principles. It is, indeed, a strong argument in favor 
 of federal power ; and when we have said this, we have given 
 it the character which the author will most proudly recognize. 
 And it is not for the legislature alone, that these unbounded 
 powers are claimed ; the other departments come in for a full 
 share of his favor. Even when he is forced to condemn, he 
 does it with a censure so faint, and so softened and palliated, 
 as to amount to positive praise. 
 
 It is too late for the people of these States to indulge them- 
 selves in these undiscriminating eulogies of their Constitution. 
 We have, indeed, every reason to admire and to love it, and to 
 place it far above every other system, in all the essentials of 
 good government. Still, it is far from being perfect, and we 
 should be careful not to suffer our admiration of what is un- 
 doubtedly good in it, to make us blind to what is as undoubtedly 
 evil. When we consider the difficulties under which the con- 
 vention labored, the great variety of interests and opinions 
 which it was necessary for them to reconcile, it is matter of 
 surprise that they should have framed a government so little 
 liable to objection. But the government which they framed is 
 not that which our author has portrayed. Even upon the 
 guarded principles for which I have contended in this review, 
 the action of the whole system tends too strongly towards con- 
 solidation. Much of this tendency, it is true, might be cor-
 
 OUR FEDERAL GOVERNMENT. 124 
 
 rected by ordinary legislation ; but, even then, there would 
 remain in the federal government an aggregate of pOAvers, 
 which nothing but an enlightened and ever-vigilant public 
 opinion could confine within safe limits. But if our author's 
 principles be correct, if ours be, indeed, a consolidated and not 
 a federative system, I, at least, have no praises to bestow on it. 
 Monarchy in form, open and acknowledged, is infinitely pre- 
 feratyle to monarchy in disguise. 
 
 The principle that ours is a consolidated government of all 
 the people of the United States, and not a confederation of 
 sovereign States, must necessarily render it little less than 
 omnipotent. That principle, carried out to its legitimate results, 
 will assuredly render the federal government the strongest in 
 the world. The powers of such a government are supposed to 
 reside in a majority of the people ; and, as its responsibility is 
 only to the people, that majority may make it whatever they 
 please. To whom is that majority itself responsible ? Upon 
 tlie theory that it possesses all the powers of the government, 
 *there is nothing to check, nothing to control it. In a r>H1o - ~. 
 population strictly homogeneous in interests, character L 
 and pursuits, there is no danger in this principle. We adopt it 
 in all our State governments, and in them it is the true prin- 
 ciple ; because the majority can pass no law which will not affect 
 themselves, in mode and degree, precisely as it affects others. 
 But in a country so extensive as the United States, with great 
 differences of character, interests and pursuits, and with these 
 differences, too, marked by geographical lines, a fair opportu- 
 nity is afforded for the exercise of an oppressive tyranny, by 
 the majority over the minority. Large masses of mankind are 
 not apt to be swayed, except by interest alone ; and wherever 
 that interest is distinct and clear, it presents a motive of action 
 too strong to be controlled. Let it be supposed that a certain 
 number of States, containing a majority of the people of all 
 the States, should find it to their interest to pass laws oppres- 
 sive to the minority, and violating their rights as secured by the 
 Constitution. What redress is there, upon the principles of our 
 author ? Is it to be found in the federal tribunals ? They are 
 themselves a part of the oppressing government, and are, there- 
 fore, not impartial judges of the powers of that government. 
 10
 
 TRUE NATURE AND CHARACTER OF 
 
 Is it to be found in the virtue and intelligence of the people ? 
 This is the author's great reliance. He acknowledges that the 
 system, as he understands it, is liable to great abuses ; but he 
 supposes that the virtue and intelligence of the people -will, 
 under all circumstances, prove a sufficient corrective. Of what 
 people ? Of that very majority who have committed the injustice 
 complained of, and who, according to the author's theory, are 
 the sole judges whether they have power to do it or n6^ and 
 whether it be injustice or not. Under such a system as this, it is 
 a cruel mockery to talk of the rights of the minority. If they 
 possess rights, they have no means to vindicate them. The 
 majority alone possess the government ; they alone measure its 
 powers, and wield them without control or responsibility. This 
 is despotism of the worst sort, in a system like ours. More 
 tolerable, by far, is the despotism of one man, than that of a 
 party, ruling without control, consulting its own interests, and 
 justifying its excesses under the name of republican liberty. 
 Free government, so far as its protecting power is concerned, is 
 made for minorities alone. 
 
 But the system of our author, while it invites the majority to 
 tyrannize over the minority, and gives the minority no redress, 
 is not safe even for that majority itself. It is a system un- 
 balanced, unchecked, without any definite rules to prevent it 
 from running into abuse, and becoming a victim to its own ex- 
 cesses. The separation and complete *independence of 
 J the several departments of the government is usually 
 supposed to afford a sufficient security against an undue enlarge- 
 ment of the powers of any one of them. This is said to be the 
 only real discovery in politics, which can be claimed by modern 
 times ; and it is generally considered a very great discovery, 
 and, perhaps, the only contrivance by which public liberty can 
 be preserved. The idea is wholly illusory. It is true, that 
 public liberty could scarcely exist without such separation, and, 
 for that reason, it was wisely adopted in our systems. But we 
 should not rely on it, with too implicit a confidence, as afford- 
 ing in itself, any adequate barrier against the encroachments of 
 power, or any adequate security for the rights and liberties of 
 the people. I have little faith in these balances of government ; 
 because there is neither knowledge nor wisdom enough in man
 
 OUR FEDERAL GOVERNMENT. 126 
 
 to render them accurate and permanent. In spite of every pre- 
 caution against it, some one department will acquire an undue 
 preponderance over the rest. The first excesses are apt to be 
 committed by the legislature ; and, in a consolidated govern- 
 ment, such as the author supposes ours to be, there is a peculiar 
 proneness to this. In all free governments, the democratic 
 principle is continually extending itself. The people being 
 possessed of all power, and feeling that they are subject to 
 no authority except their own, learn, in the end, to consider the 
 very restraints which they have voluntarily imposed upon them- 
 selves, in their constitution of government, as the mere creatures 
 of their own will, which their own will may at any time destroy. 
 Hence the legislature, the immediate representatives of the 
 popular Avill, naturally assume upon themselves every power 
 which is necessary to carry that will into effect. This is not 
 liberty. True political liberty demands many and severe re- 
 straints ; it requires protection against itself, and is no longer 
 safe, when it refuses to submit to its own self-imposed discipline. 
 But whatever power the legislature may assume, they seldom 
 retain it long. They win it, not for themselves, but for the 
 executive. All experience proves that this is a usual result, in 
 every form of free government. In every age of the world, the 
 few have found means to steal power from the many. But 
 in our government, if it be indeed a consolidated one, such a 
 result is absolutely inevitable. The powers which are expressly 
 lodged in the executive, and the still greater powers which are 
 assumed, because the Constitution does not expressly deny them, 
 a patronage which has no limit, and acknowledges no responsi- 
 bility, all these are quite enough to bring the legislature to the 
 feet of the executive. Every new power, therefore, which is 
 assumed by the federal government, does but add *so 
 much to the powers of the President. One by one, the "- 
 powers of the other departments are swept away, or are wielded 
 only at the will of the executive. This is not speculation ; it is 
 history ; and those who have been so eager to increase the 
 powers, and to diminish the responsibilities, of the federal 
 government, may know, from their own experience, that they 
 have labored only to aggrandize the executive department, and 
 raise the President above the people. That officer is not, by the
 
 127 TRUE NATURE AND CHARACTER OF 
 
 Constitution, and never was designed to be, anything more than 
 a simple executive of the laws ; but the principle which con- 
 solidates all power in the federal government clothes him with 
 royal authority, and subjects every right and every interest of 
 the people to his will. The boasted balance, which is supposed 
 to be found in the separation and independence of the depart- 
 ments, is proved, even by our own experience, apart from all 
 reasoning, to afford no sufficient security against this accumula- 
 tion of powers. It is to be feared that the reliance which we 
 place on it may serve to quiet our apprehensions, and render us 
 less vigilant, than we ought to be, of the progress, sly, yet sure, 
 which a vicious and cunning President may make towards abso- 
 lute power. 
 
 And let us not sleep in the delusion that we shall derive all 
 needful security from our own "intelligence and virtue." The 
 people may, indeed, preserve their liberties forever, if they will 
 take care to be always virtuous, always wise, and always vigilant. 
 And they will be equally secure, if they can assure themselves 
 that the rulers they may select will never abuse their trust, but 
 will always understand and always pursue the true interests of 
 the people. But, unhappily, there are no such people, and no 
 such rulers. A government must be imperfect, indeed, if it 
 require such a degree of virtue in the people as renders all 
 government unnecessary. Government is founded, not in the 
 virtues, but in the vices of mankind ; not in their knowledge 
 and wisdom, but in their ignorance and folly. Its object is to 
 protect the weak, to restrain the violent, to punish the vicious, 
 and to compel all to the performance of the duty which man 
 owes to man in a social state. It is not a self-acting machine, 
 which will go on and perform its work without human agency ; 
 it cannot be separated from the human beings who fill its places, 
 set it in motion, and regulate and direct its operations. So long 
 as these are liable to err in judgment, or to fail in virtue, so 
 long will government be liable to run into abuses. Until all 
 men shall become so perfect as not to require to be ruled, all 
 governments professing to be free will require to be watched, 
 guarded, checked and controlled. To do this effectually requires 
 
 F *1 >81 m re t * ian * we S enera % fin( * of public virtue and pub- 
 J lie intelligence. A great majority of mankind are much
 
 OUR FEDERAL GOVERNMENT. 128 
 
 more sensible to their interests than to their rights. Whenever 
 the people can be persuaded that it is their greatest interest to 
 maintain their rights, then, and then only, will free government 
 be safe from abuses. 
 
 Looking to our own federal government, apart from the 
 States, and regarding it, as our author would have us, as a con- 
 solidated government of all the people of the United States, we 
 shall not find in it this salutary countervailing interest. In an 
 enlarged sense, it is, indeed, the greatest interest of all to sup- 
 port that government in its purity ; for, although it is un- 
 doubtedly defective in many important respects, it is much the 
 best that has yet been devised. Unhappily, however, the 
 greatest interest of the whole is not felt to be, although in truth 
 it is, the greatest interest of all the parts. This results from 
 the fact, that our character is not homogeneous, and our 
 pursuits are wholly different. Rightly understood, this fact 
 should tend to bind us the more closely together, by showing us 
 our dependence upon each other ; and it should teach us the 
 necessity of watching, with the greater jealousy, every departure 
 from the strict principles of our union. It is a truth, however, 
 no less melancholy than incontestable, that if this ever was the 
 view of the people, it has ceased to be so. And it could not be 
 otherwise. Whatever be the theory of our Constitution, its 
 practice, of late years, has made it a consolidated government ; 
 the government of an irresponsible majority. If that majority 
 can find, either in the pursuits of their own peculiar industry, 
 or in the offices and emoluments which flow from the patronage 
 of the government, an interest distinct from that of the minority, 
 they will pursue that interest, and nothing will be left to the 
 minority but the poor privilege of complaining. Thus the 
 government becomes tyrannous and oppressive, precisely in 
 proportion as its democratic principle is extended ; and instead 
 of the enlarged and general interest which should check and 
 restrain it, a peculiar interest is enlisted, to extend its powers 
 and sustain its abuses. Public virtue and intelligence avail 
 little, in such a condition of things as this. That virtue falls 
 before the temptations of interest which you present to it, and 
 that intelligence, thus deprived of its encouraging hopes, serves
 
 128 TRUE NATURE AND CHARACTER OF 
 
 only to point out new objects of unlawful pursuit, and suggest 
 new and baser methods of attaining them. 
 
 This result could scarcely be brought about, if the federal 
 government were allowed to rest on the principles upon which 
 I have endeavored to place it. The checking and controlling 
 influences which *afford safety to public liberty, are not 
 L -I to be found in the government itself. The people can- 
 not always protect themselves against their rulers ; if they could, 
 no free government, in past times, would have been overthrown. 
 Power and patronage cannot easily be so limited and defined, as 
 to rob them of their corrupting influences over the public mind. 
 It is truly and wisely remarked by the Federalist, that "a power 
 over a man's subsistence is a power over his will." As little as 
 possible of this power should be entrusted to the federal govern- 
 ment, and even that little should be watched by a power au- 
 thorized and competent to arrest its abuses. That power can 
 be found only in the States. In this consists the great su- 
 periority of the federative system over every other. In that 
 system, the federal government is responsible, not directly to 
 the people en masse, but to the people in their character of dis- 
 tinct political corporations. However easy it may be to steal 
 power from the people, governments do not so readily yield it to 
 one another. The confederated States confer on their common 
 government only such power as they themselves cannot sepa- 
 rately exercise, or such as can be better exercised by that 
 government. They have, therefore, an equal interest, to give 
 it power enough, and to prevent it from assuming too much. 
 In their hands the power of interposition is attended with no 
 danger ; it may be safely lodged where there is no interest to 
 abuse it. 
 
 Under a federative system, the people are not liable to be 
 acted on, (at least, not to the same extent,) by those influences 
 which are so apt to betray and enslave them, under a consoli- 
 dated government. Popular masses, acting under the excite- 
 ments of the moment, are easily led into fatal errors. History 
 is full of examples of the good and great sacrificed to the hasty 
 judgments of infuriated multitudes, and of the most fatal pub- 
 lic measures adopted under the excitements of the moment. 
 How easy is it for the adroit and cunning to avail themselves
 
 OUR FEDERAL GOVERNMENT. 129 
 
 of such occasions, and how impossible is it, for a people so 
 acted on, to watch their rulers wisely, and guard themselves 
 against the encroachments of power ? In a federative system, 
 this danger is avoided, so far as their common government is 
 concerned. The right of interposition belongs, not to the peo- 
 ple in the aggregate, but to the people in separate and compa- 
 ratively small subdivisions. And even in these subdivisions, 
 they can act only through the forms of their own separate 
 governments. These are necessarily slow and deliberate, afford- 
 ing time for excitement to subside, and for passion to cool. 
 Having to pass through their own governments, before they 
 can reach that of the United States, they are forbidden to act, 
 until they have *had time for reflection, and for the r*-j on -i 
 exercise of a cool and temperate judgment. Besides, 
 they are taught to look, not to one government only, for the 
 protection and security of their rights, and not to feel that they 
 owe obedience only to that. Conscious that they can find, in 
 their own State governments, protection against the wrongs of 
 the federal government, their feeling of dependence is less 
 oppressive, and their judgments more free. And while their 
 efforts to throw off oppression are not repressed by a feeling 
 that there is no power to which they can appeal, these efforts 
 are kept under due restraints, by a consciousness that they 
 cannot be unwisely exerted, except to the injury of the people 
 themselves. It is difficult to perceive how a federal govern- 
 ment, established on correct principles, can ever be overthrown, 
 except by external violence, so long as the federative principle 
 is duly respected and maintained. All the requisite checks and 
 balances will be found, in the right of the States to keep their 
 common government within its proper sphere ; and a sufficient 
 security for the due exercise of that right is afforded by the 
 fact, that it is the interest of the States to exercise it discreetly. 
 So far as our own government is concerned, I venture to pre- 
 dict that it will become absolute and irresponsible, precisely in 
 proportion as the rights of the States shall cease to be respect- 
 ed, and their authority to interpose for the correction of federal 
 abuses shall be denied and overthrown. 
 
 It should be the object of every patriot in the United States 
 to encourage a high respect for the State governments. The
 
 TRUE NATURE AND CHARACTER OF 
 
 people should be taught to regard them as their greatest inte- 
 rest, and as the first objects of their duty and affection. Main- 
 tained in their just rights and powers, they form the true 
 balance-wheel, the only effectual check upon federal encroach- 
 ments. And it possesses as a check these distinguishing 
 advantages over every other, that it can never be applied with- 
 out great deliberation and caution, that it is certain in its 
 effects, and that it is but little liable to abuse. It is true that 
 a State may use its power for improper purposes, or on impro- 
 per occasions ; but the federal government is, to say the least 
 of it, equally liable to dangerous errors and violations of trust. 
 Shall we then leave that government free from all restraint, 
 merely because the proper countervailing power is liable to 
 abuse ? Upon the same principle, we should abandon all the 
 guards and securities, which we have so carefully provided in 
 the Federal Constitution itself. The truth is, all checks upon 
 government are more or less imperfect ; for if it were not so, 
 government itself would be perfect. But this is no reason why 
 we should abandon it to its own will. We have only to apply 
 f*1 31 1 to ^" s subject our *best discretion and caution, to con- 
 fer no more power than is absolutely necessary, and to 
 guard that power as carefully as we can. Perfection is not to 
 be hoped for ; but an approximation to it, sufficiently near to 
 afford a reasonable security to our rights and liberties, is not 
 unattainable. In the formation of the federal government we 
 have been careful to limit its powers, and define its duties. Our 
 object was to render it) such that the people should feel an 
 interest in sustaining it in its purity, for otherwise it could not 
 long subsist. Upon the same principle, we should enlist the 
 same interest in the wise and proper application of those checks, 
 which its unavoidable imperfections render necessary. That 
 interest is found in the States. Having created the federal 
 government at their own free will, and for their own uses, why 
 should they seek to destroy it ? Having clothed it with a cer- 
 tain portion of their own powers, for their own benefit alone, 
 why should they desire to render those powers inoperative and 
 nugatory ? The danger is, not that the States will interpose 
 too often, but that they will rather submit to federal usurpa- 
 tions, than incur the risk of embarrassing that government, by
 
 OUR FEDERAL GOVERNMENT. 
 
 any attempts to check and control it. Flagrant abuses alone, 
 and such as public liberty cannot endure, will ever call into 
 action this salutary and conservative power of the States. 
 
 But whether this check be the best or the worst in its nature, 
 it is at least one which our system allows. It is not found 
 within the Constitution but exists independent of it. As that 
 Constitution was formed by sovereign States, they alone are 
 authorized, whenever the question arises between them and their 
 common government, to determine, in the last resort, what 
 powers they intended to confer on it. This is an inseparable 
 incident of sovereignty ; a right which belongs to the States, 
 simply because they have never surrendered it to any other 
 power. But to render this right available for any good pur- 
 pose, it is indispensably necessary to maintain the States in 
 their proper position. If their people suffer them to sink into 
 the insignificance of mere municipal corporations, it will be 
 vain to invoke their protection against the gigantic power of 
 the federal government. This is the point to which the vigi- 
 lance of the people should be chiefly directed. Their highest 
 interest is at home ; their palladium is their own State govern- 
 ments. They ought to know that they can look nowhere else 
 with perfect assurance of safety and protection. Let them, then 
 maintain those governments, not only in their rights, but in 
 their dignity and influence. Make it the interest of their peo- 
 ple to serve them ; an interest strong enough to resist all the 
 temptations of federal office and *patronage. Then r-^,-. on -i 
 alone will their voice be heard with respect at Wash- 
 ington ; then alone will their interposition avail to protect their 
 own people against the usurpations of the great central power. 
 It is vain to hope that the federative principle of our govern- 
 ment can be preserved, or that any thing can prevent it from 
 running into the absolutism of consolidation, if we suffer the 
 I'ights of the States to be filched away, and their dignity and 
 influence to be lost, through our carelessness or neglect. 
 11
 
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