he,

In many respects, indeed, the whole human race may be said to be one. They have à common origin, a common psychology, a common physiology, and they are all subjects of the same great Ruler of the world. But this does not make all men "one people" in the political sense of the words. In like manner, those things which the colonists had in common, and which are so carefully enumerated by Mr. Justice Story, do not make them one political community; the only sense in which their oneness could have any logical connexion with his design. Nay, so palpably is this the case, that he fails to make the impression on his own mind, which he seems so desirous to make on that of his readers; and the hypothesis that the colonies were "one people,' is utterly dispelled by his own explicit admission. For, says Though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connexion with each other. Each was independent of all the others; each, in a limited sense, was sovereign within its own territory. There was neither allegiance nor confederacy between them. The Assembly of one province could not make laws for another, nor confer privileges which were to be enjoyed or exercised in another, farther than they could be in any independent foreign state. As colonies, they were also excluded from all connexion with foreign states. They were known only as dependencies, and they followed the fate of the parent country, both in peace and war, without having assigned to them, in the intercourse or diplomacy of nations, any distinct or independent existence. They did not possess the power of forming any league or treaty among themselves, which would acquire an obligatory force, without the assent of the parent State. And though their mutual wants and necessities often induced them to associate for common purposes of defence, these confederacies were of a casual and temporary nature,

and were allowed as an indulgence, rather than as a right. They made several efforts to procure the establishment of some general superintending government over them all: but their own differences of opinion, as well as the jealousy of the crown, made these efforts abortive." * It is impossible for language to be more precise and explicit. Hence, in whatever other respects the colonies may have formed "one people," we are here authorized, by the undisputed and the indisputable facts of history, to consider them as separate and independent of each other, in the political sense of the terms. And this is all our argument needs.

Mr. Justice Story, not satisfied with the oneness of the people of the colonies before their separation from Great Britain, which he has been at so much pains to establish, next endeavors to show, that they were certainly moulded into one nation by the Declaration of Independence. If they were "one people" before, it is difficult to conceive how they were made so by that Declaration. To that act, says he, "union was as vital, as freedom or independence."+ But what sort of union? Did the people unite and become one nation, in the sense that it was a sovereign political community; so that the whole could make a Constitution and laws for the parts? If not, then the assertion misses the mark aimed at, and must go for nothing. But no one pretends, for a single moment, that they became one people in any such sense of the words. Mr. Justice Story himself admits, that such union was temporary, and designed to perish with the common danger which had called it into existence. "The union thus formed," says he, "grew out of the exigencies of the times; and from its nature and objects might be deemed temporory, extending only to the maintenance of the common liberties and independence of the States, and to terminate with the return of

*Story on the Constitution, vol. i, page 163-164. † Vol. i., Book xi., chap. 1, page 200. Note.

peace with Great Britain, and the accomplishment of the ends of the revolutionary contest."* Thus it is conceded that they became "one people," not to ordain a Constitution or to enact laws, but only to resist a common enemy, and to continue united only during the presence of the common danger. Hence, this union was, according to Judge Story's own admission, more imperfect and fragile than that which, from the operation of a similar cause, had sprung up among the States of Greece, the Swiss Cantons, the United Netherlands, or the members of the German Diet. Yet no one has ever considered any one of these unions as forming one nation, or people, as contradistinguished from a federation of sovereign and independent States. Such attempts, indeed, to prove that the colonies, or the States of America were one nation, or political community, are simply desperate. They are scarcely made, before they are overthrown by the hand that reared them.

But let us admit, for the sake of argument, that the colonies formed one people before their separation from Great Britain, and that they were again made one people by the Declaration of Independence. Then no one colony could lawfully act without the concurrence of the others; as the parts would not be independent of the whole. Accordingly, Mr. Justice Story declares, that the "the colonies did not severally act for themselves, and proclaim their own independence." But it is well known, that Virginia did so. "Virginia," says Judge Story, "on the 29th June, 1776, (five days before the Declaration of Independence,) declared the government of the country as formally exercised under the crown of Great Britain, totally dissolved, and proceeded to form a new Constitution." Nay, she had already formed a new Constitution, in pursuance of her resolution of the 15th of the preceding month, and she adopted it on the 29th of June, 1776. Yet Virginia has

* Vol. i., Book ii., chap. ii., page 209. † Vol. i., Book ii., chap. i., page 197.

+ Ibid.

never been regarded as tainted with treason, or rebellion, against the people of America, because she thus proclaimed her own separate independence, and established her own Constitution. On the contrary, she has ever been honored by her sister colonies and States, for this bold and independent act.

This is not the only insuperable difficulty in the way of the hypothesis, that the colonies were made one people by the Declaration of Independence. For, if this hypothesis be adopted, we must believe that this one people were afterwards broken up into separate and independent States by an act of Confederation! In the case of Gibbons and Ogden, *the Supreme Court of the United States, say, (and the words are quoted with approbation by Mr. Justice Story,) †"As preliminary to the very able discussion of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the situation of these States, anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. THIS is TRUE." Now, if this be true, as the Supreme Court of the United States affirm, and as Mr. Justice Story admits, how were this one people broken up into so many separate, "sovereign," and completely independent" States? This must have been done by the Articles of Confederation; since it is only in the presence of these Articles, that this fine theory about the oneness of the American people disappears, and the States once more shine out as free and independent sovereignties. No other cause can be assigned for the change.

It is perfectly certain, indeed, that if the people of America were one nation, or political community, prior to the adoption of those Articles, they then became divided into separate, distinct, and independent States. For, *6. Wheaton, page 187. † Vol. i., page 323. Vol. I., Book ii., chap. iii., page 323.

according to those Articles, "each State retains its sovereignty, freedom, and independence." Each State retains! This language implies, indeed, that each State was free, sovereign and independent before those Articles were adopted. But then this is only one of the difficulties in the way of the theory of Judge Story.

If they were not free and sovereign States before, if, on the contrary, they were one people, or nation, or political community, then it were absurd to speak of their union as an act of confederation. For it would, indeed, have been an act of separation, and not of confederation. It would have been the dividing of one nation into separate and sovereign States, and not the uniting of such States into one Confederacy. This is another of the difficulties, which stand in the way of the theory of Judge Story, and of the Northern school of politicians.

Again, if one people were thus divided into free, sovereign and independent States, by the Articles of Confederation; then it is very inaccurate in Judge Story, to say, as he always does, that the States granted the powers by which the Confederacy was formed. He should, on the contrary, have spoken only of powers resumed by the States, or restored to them by the American people.

But we may now take leave of his theory and all its insuperable difficulties. It is sufficient for my purpose, that after the Articles of Confederation were agreed upon, as the supreme law, the States were then free, sovereign and independent. It is asserted by the Supreme Court of the United States, as well as by Judge Story himself, that anterior to the adoption of the Constitution the States "were sovereign, were completely independent, and were connected only by a league." It was in this capacity, it was as free, sovereign and completely independent States, that they laid aside the old, and entered into the new, “Articles of Union," as the Constitution is everywhere called in the proceedings of the Convention of 1787. This is