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COMMENTARIES.

PRELIMINARY CHAPTER.

PLAN OF THE WORK.

The principal object of these Commentaries is to present a full analysis and exposition of the Constitution of Government of the United States of America. In order to do this with clearness and accuracy, it is necessary to understand what was the political position of the several States composing the Union, in relation to each other at the time of its adoption. This will naturally conduct us back to the American Revolution, and to the formation of the Confederation consequent thereon. But if we stop here, we shall still be surrounded with many difficulties in regard to our domestic institutions and policy, which have grown out of transactions of a much earlier date, connected on one side with the common dependence of all the colonies upon the British Empire, and on the other with the particular charters of government and internal legislation which belonged to each colony as a distinct sovereignty, and which have impressed upon each peculiar habits, opinions, attachments, and even prejudices. Traces of these peculiarities are everywhere discernible in the actual jurisprudence of each State ; and are silently or openly referred to in several of the provisions of the Constitution of the United States. In short, without a careful review of the origin and constitutional and juridical history of all the colonies, of the principles common to all, and of the diversities which were no less remarkable in all, it would be impossible fully to understand the nature and objects of the Constitution; the reasons on which several of its most important provisions are founded ; and the necessity of those concessions and compromises which a desire to form a solid and perpetual Union has incorporated into its leading features.

The plan of the work will, therefore, naturally comprehend three great divisions. The first will embrace a sketch of the charters, constitutional history, and ante-revolutionary jurisprudence of the colonies. The second will embrace a sketch of the constitutional history of the States during the Revolution, and the rise, progress, decline, and fall of the Confederation. The third will embrace the history of the rise and adoption of the Constitution ; and a full exposition of all its provisions, 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. In this way (as it is hoped) his judgment as well as his affections will be enlisted on the side of the Constitution, as the truest security of the Union, and the only solid basis on which to rest the private rights, the public liberties, and the substantial prosperity of the people composing the American Republic.

BOOK I.

HISTORY OF THE COLONIES.

CHAPTER I.

ORIGIN OF THE TITLE TO TERRITORY OF THE COLONIES.

§ 1. The discovery of the continent of America by Columbus in the fifteenth century awakened the attention of all the maritime states of Europe. Stimulated by the love of glory, and still more by the hope of gain and dominion, many of them early embarked in adventurous enterprises, the object of which was to found colonies, or to search for the precious metals, or to exchange the products and manufactures of the Old World for whatever was most valuable and attractive in the New England was not behind her continental neighbors in seeking her own aggrandizement, and nourishing her then infant commerce. The ambition of Henry the Seventh was roused by the communications of Columbus, and in 1495 he granted a commission to John Cabot, an enterprising Venetian, then settled in England, to proceed on a voyage of discovery, and to subdue and take possession of any lands unoccupied by any Christian Power, in the name and for the benefit of the British Crown. In the succeeding year Cabot sailed on his voyage, and having first discovered the islands of Newfoundland and St. John's, he afterwards sailed along the coast of the continent from the 56th to the 38th degree of north latitude, and claimed for his sovereign the vast region which stretches from the Gulf of Mexico to the most northern regions.

1 Marshall's Amer. Colonies, 12, 13; 1 Haz. Collec. 51, 72, 82, 103, 105; Robertson's Hist. of America, B. 9.

2 Robertson's America, B. 9.
8° 1 Haz. Coll. 9; Robertson's Hist. of America, B. 9.
4 Marshall, Am. Colon. 12, 13; Robertson's America, B. 9.

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§ 2. Such is the origin of the British title to the territory composing these United States. That title was founded on the right of discovery, a right which was held among the European nations a just and sufficient foundation on which to rest their respective claims to the American continent. Whatever controversies existed among them (and they were numerous) respecting the extent of their own acquisitions abroad, they appealed to this as the ultimate fact, by which their various and conflicting claims were to be adjusted. It may not be easy upon general reasoning to establish the doctrine that priority of discovery confers any exclusive right to territory. It was probably adopted by the European nations as a convenient and flexible rule by which to regulate their respective claims. For it was obvious, that in the mutual contests for dominion in newly discovered lands, there would soon arise violent and sanguinary struggles for exclusive possession, unless some common principle should be recognized by all maritime nations for the benefit of all. None more readily suggested itself than the one now under consideration; and as it was a principle of peace and repose, of perfect equality of benefit in proportion to the actual or supposed expenditures and hazards attendant upon such enterprises, it received a universal acquiescence, if not a ready approbation. It became the basis of European polity, and regulated the exercise of the rights of sovereignty and settlement in all the cisatlantic Plantations. In respect to desert and uninhabited lands, there does not seem any important objection which can be urged against it. But in respect to countries then inhabited by the natives, it is not easy to perceive how, in point of justice or humanity, or general conformity to the law of nature, it can be successfully vindicated. As a conventional rule it might properly govern all the nations which recognized its obligation ; but it could have no authority over the aborigines of America, whether gathered into civilized communities or scattered in hunting tribes over the wilderness. Their right, whatever it was, of occupation or use, stood upon original principles deducible from the law of nature, and could not be justly narrowed or extinguished without their own free consent.

§ 3. There is no doubt that the Indian tribes, inhabiting this continent at the time of its discovery, maintained a claim to the exclusive possession and occupancy of the territory within their respective limits, as sovereigns and absolute proprietors of the soil. They acknowledged no obedience or allegiance or subordination to any foreign sovereign whatsoever; and as far as they have possessed the means, they have ever since asserted this plenary right of dominion, and yielded it up only when lost by the superior force of conquest, or transferred by a voluntary cession.

1 Johnson v. M‘Intosh, 8 Wheat. R. 543, 572, 573; 1 Doug. Summ. 110.

§ 4. This is not the place to enter upon the discussion of the question of the actual merits of the titles claimed by the respective parties upon principles of natural law. That would involve the consideration of many nice and delicate topics, as to the nature and origin of property in the soil, and the extent to which civilized man may demand it from the savage for uses or cultivation different from, and perhaps more beneficial to, society than the uses to which the latter may choose to appropriate it. Such topics belong more properly to a treatise on natural law than to lectures professing to treat upon the law of a single nation.

$ 5. The European nations found little difficulty in reconciling themselves to the adoption of any principle which gave ample scope to their ambition, and employed little reasoning to support it. They were content to take counsel of their interests, their prejudices, and their passions, and felt no necessity of vindicating their conduct before cabinets, which were already eager to recognize its justice and its policy. The Indians were a savage race, sunk in the depths of ignorance and heathenism. If they might not be extirpated for their want of religion and just morals, they might be reclaimed from their errors. They were bound to yield to the superior genius of Europe, and in exchanging their wild and debasing habits for civilization and Christianity they were deemed to gain more than an equivalent for every sacrifice and suffering. The Papal authority, too, was brought in aid of these great designs; and for the purpose of overthrowing heathenism, and propagating the Catholic religion,2 Alexander the Sixth, by a Bull issued in 1493, granted to the Crown of Castile the whole of the immense territory then discovered, or to be discovered, between the poles, so far as it was not then possessed by any Christian prince.3

18 Wheat. R. 543, 573; 1 Haz. Coll. 50, 51, 72, 82, 103, 105; Vattel, B. 1, ch. 18, $ 207, 208, 209, and note.

2 “ Ut fides Catholica, et Christiana Religio nostris præsertim temporibus exaltetur, &c., ac barbaræ nationes deprimantur, et ad fidem ipsam reducantur," is the language of the Bull. 1 Haz. Coll. 3.

8 1 Haz. Collect. 3; Marshall, Hist. Col. 13, 14.

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