quiring citizen, however much he may differ from some of the opinions advanced.

We trust, too, that they may beget an anxiety to understand more thoroughly the true exposition of our constitution, to abide by its spirit, and maintain it in its integrity as the true bond of the Federal Union. We insert with the articles the preliminary remarks of Mr. Macgregor on the constitution of the United States, and his introductory notices of the distinguished authors.-(ED. OF REG.)

From Macgregor's Report to Parliament, on the Regulations, Resources, &c. of the United States of North America.

In comparing the government of the United States of America with those of other nations, we must remember that when the Anglo-American colonies declared their independence, their moral and physical condition was very different from that of all republics which had previously existed, or that have since arisen. The people were generally intelligent, their habits frugal and industrious; and, unlike the Europeans of South America, their ideas were free from the thraldom of religious intolerance.

The abilities of the great men who conducted their assemblies were solid rather than brilliant; practical rather than theoretical. They had the good sense and discrimination, notwithstanding their separation from the government of the mother country, to adopt the constitution and laws of the then most free government on earth as the ground-work of theirs: making a royal hereditary chief magistrate, a titled privileged nobility, and a national church establishment, the only remarkable exceptions.

Their immense territory, with soils yielding every production under heaven, and abounding in numerous navigable rivers, lakes, and harbours,— fisheries, woods, and minerals, placed all natural advantages in their immediate possession.

Their language and education enabled them to enjoy all the benefits of English knowledge and literature, without the labour or expense of translation, or paying for copyrights. They had also the earliest advantages of discoveries in the arts and sciences, without restrictions as to the rights of patents.

With the peculiar good fortune of being governed at that critical period by honest men, they had the knowledge of all ages and countries to guide them. Possessing, therefore, such extraordinary advantages, the Anglo-Americans were enabled to avoid most of the blunders committed by the SpanishAmerican republics. It was the misfortune of the latter to have been, previously to their independence, ruled, or rather awed into passive obedience, by the most darkening monarchical and ecclesiastical government; a government and hierarchy that grew up, and acquired strength, during centuries of ignorance, tyranny, bigotry and intolerance; under a government and a church that profited not by the march of modern civilization and religious liberty, but that enchained the liberty of written and spoken language, and

the expansion of the intellectual faculties. Neither had the history of the Spanish colonies, in their first settlement and progress, any example of that persevering, laborious, and enduring character, which was animated, and cherished, and supported by the spirit and the love of civil and religious. liberty; and which so eminently distinguished the Pilgrim Fathers, the Quakers, and even the Roman Catholics, who first encountered and overcame all the privations, difficulties, and dangers of the American wilderness.

The character and conduct of the conquerors and colonists of Spanish America, and of their civil and ecclesiastical government ever afterwards, present a contrast which, on becoming independent of Spanish authority, rendered the moral, intellectual, and even physical character of the people, and of those who were called upon to rule, incompatible with intelligent, tolerant government, with impartial justice, and with civil and religious liberty. The democratic form of the United States government arose as much from necessity, as from any predilection which the leading men of the time cherished for it. No person could claim sovereign right. The wealth of the country was too equally divided to give any one individual the means, if it were possible, either of corruption, or of an overwhelming share of power. The constitution and laws were, otherwise, as nearly as possible accommodated to the ideas of the people, and to the former order of government. The different states retained their representative governments, much the same as before the revolution, with the power of making laws for their internal administration; but all the states were united under one general go

vernment.

This head, or supreme government, was formed of three branches, or states the President, the Senate, and the House of Representatives.

The problem for time to resolve was, whether this form of government possessed within itself the power of carrying into execution the laws which are necessary for the security of persons and property, and for the orderly maintenance of civil and religious liberty.

The constitution was not inconsiderately, nor quickly adopted. On the 17th of September, 1787, thirteen years after the meeting of the first continental congress, nine after the declaration of independence, and four after the acknowledgment of that independence by England, the constitution was agreed to.

The views taken by the federalists and the democrats, of the constitution of the United States, have frequently been greatly opposed to each other. Of the several jurists who have written on the constitution of the United States, the authors of the Federalist, and Judge Story and Chief Justice Kent are the most eminent. The late Judge Upshur appears to us to have analyzed that celebrated act with very great ability, even if his conclusions should be considered not strictly in accordance with the originally intended and real principles of the constitution.

A short time before his lamentable death, he sent me his views on the constitution of the United States. They are so remarkable that I have extracted the leading parts, and also those of the Honourable Mr. Spencer, as absolutely

VOL. III. SEPT., 1849.

17

necessary to a just understanding of the constitution of the United States, as a confederative government, and as elucidating the several constitutions of the several states. Mr. Upshur was one of the highest legal authorities in the United States. His predecessor in the office of secretary of state, Mr. Legare, was also a profound lawyer, and my personal friend. He was carried off suddenly while on a visit to Boston, in 1842; and Mr. Upshur, who succeeded him, was destroyed, with several others, in 1843, by the bursting of a monstrous cannon on board a steam frigate. A more pure-minded statesman, and more virtuous man than Mr. Upshur, I believe there did not exist. His views, however, on Nullification, and on many constitutional principles, have been disputed by some of the most learned jurists in America.

JUDGE UPSHUR'S STRICTURES.

"A work," says Mr. Upshur, "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, have, for the most part, met a deserved fate in immediate and total oblivion. A few have appeared, however, of a much higher order, and bearing the stamp of talent, learning, and research. Among these, the work of Judge Story and the 'Commentaries' 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.

"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 recommend the constitu tion 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 favourite measure, and, for that reason, does not always command 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 government, 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 another, 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 defective 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 foundation of that instrument, but it is emphatically true of some of its provisions, which were considered at the time as comparatively 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. Contemporary 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 before the Federalist' was written.

"Judge Story fills a high station 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 investigations 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 indeed wonderful if he should hazard his well-earned reputation as a jurist, upon any hasty or unweighed opinion, upon subjects so 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.

The first part of Judge Story's work relates to a subject of the greatest interest to every American, and well worthy the study of philosophical inquirers all over the world. There is not within the whole range of history an event more important, with reference 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 inquire very extensively, or very minutely, into the mere history of the events which distinguished that 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 contemplate them in another and a higher character. A deep and solemn feeling of religion, and an attachment to, and an understanding 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 historian, 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 interpretation of those parts of our systems, as to which we have no precise rules in the language of our constitutions of government. It is to be regretted that Judge Story did not take this view of the subject. Although not strictly required by the plan of his work, it was, nevertheless, altogether consistent with 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 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 understood by all men alike. 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 government, by the political party to which he belongs, depend upon a denial of that separate existence, and separate sovereignty and independence, which the opposing party has uniformly claimed for the states.

Our

"It appears to be a favourite object with the author, to impress upon the mind of the reader, at the very commencement of his 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.' But although the colonies were independent of each other in respect to their domestic concerns, 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 commercial 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 commenced, the patriots did not assert that only the same affinity and social connexion subsisted between the people of the colonies 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.'

"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