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prior to the revolution, “the colonies were separate and r. 45
that she, at least, did “presume” to establish a government for herself, without the least regard to the recommendation or the pleasure of congress.”
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 countries together. It is true, they treated with them jointly, and not severally; they considered them all bound to the observance 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 acknowledged, 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, sovereign 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 acknowledges it to be a “free, sovereign, and independent State;” wnited, 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 contemplation 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[*47] sion, and the strict adaptation of each *to the state of
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 author requires us to believe this of the colonies, although he acknowledges that he cannot tell, with any degree of confidence
or precision, when, how, or to what extent the sovereignty, which they acquired by declaring their independence was surrendered. 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, jurisdiction 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 apply 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 confederation. 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, attest, 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 7" 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[*48] other in 1779, and by another in *1780; and yet they 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 declaration 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 approach 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 undoubtedly 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 Philadelphia, in May, 1787, the representatives of only nine States appeared; 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 interpreter in constitutional controversies; to lay down rules of interpretation; 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 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 [*49] the debates, and, of course, we have no means of determining by what process of reasoning they were led to their conclusions. And we cannot reasonably suppose that the debaters always expressed their deliberate and well weighed opinions in all the arguments, direct and collateral, by which they sought to achieve a single great purpose. We are not, therefore, 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 disposed 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 author 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 heretofore received. As a compendium of what others have said and done upon the subject, his work is very valuable. It facilitates