investigation, whilst, at the same time, it is so full of matter, 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 extracting 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 perplexed to discover the sources from which he derives his information. This is a great defect in a work of this sort, and is the less excusable, because it might have been easily avoided. A writer who undertakes to furnish a treatise *upon a [*50] 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 information he ventures to impart, and the authorities upon which he founds whatever opinions he ventures to inculcate. The reader 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 cautiously 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 purposes 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 constitution 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

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 history altogether. I will endeavour in the first place to meet him on his own ground.

[*51]

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 intention of the law, where these *would otherwise be doubtful. The preamble can, in no case, be allowed to contradict the law, or to vary the meaning of its plain language. Still less can it be used to change the true character of the lawmaking power. If the preamble of the Constitution had declared 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 untrue that it was adopted by the aggregate people of the United States. The preamble, therefore, is of no sort of value in settling 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.

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 constitution. 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 ourselves 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 distinct 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 amendments 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 matter in proper order. On the 12th of the same *month [*52] 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 justice, 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 establish 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 original. The presumption is, therefore, that the two were considered 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

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 paragraphs, compared, and, in some places, corrected and amended." (Ib. 338.) In what particulars these corrections and amendments 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 committee 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 different 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 expression which would apply to those who should ratify the constitution, and *and not to those who should refuse to do so. The expression actually adopted answers that purpose [*53] fully. It means simply, "We, the people of those States who have united for that purpose, do ordain," &c. This construction 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

States," are forms of expression which frequently occur, without 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 reference to this enquiry, that the word "people" has no plural termination in our language. If it had, the probability is that the expression would have been "we, the peoples," conveying, distinctly, 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 Journals 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 premises, 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 delivering the opinion of the court, rests that position upon the preamble alone, and offers no other argument whatever to support it. And this too, although, in his own opinion, upon the right decision of that case rested "some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution of the United States." It is much to be regretted, that principles so important should be advanced as mere dogmas, either by our judges, or by the instructors of our youth.

In this case, as in others, however, we ought not to be satisfied with simply proving that the author's conclusions are not warranted by the facts and arguments from which he derives them. Justice *to the subject requires a much more full [*54] and detailed examination of this important and fundamental question.