If they authorize his conclusion,that there was any sort of unity among the people of the several colonies,distinct from their common connection with the mother country,as parts of the same empire,it must be because they flowed from something in the relation betwixt the colonies themselves,and not from their common relation to the parent country.Nor is it enough that these rights and powers should,in point of fact,flow from the relation of the colonies to one another;they must be the necessary result of their political condition.Even admitting,then,that they would,under any state of circumstances,warrant the conclusion which the author has drawn from them,it does not follow that the conclusion is correctly drawn in the present instance.For aught that he has said to the contrary,the right of every colonist to inhabit and inherit lands in every colony,whether his own or not,may have been derived from positive compact and agreement among the colonies themselves;and this presupposes that they were distinct and separate,and not "one people."And so far as the rights of the mother country are concerned,they existed in the same form,and to the same extent,over every other colony of the empire.Did this make the people of all the colonies "one people?"If so,the people of Jamaica,the British East India possessions,and the Canadas are,for the very same reason,"one people"at this day.If a common allegiance to a common sovereign,and a common subordination to his jurisdiction,are sufficient to make the people of different countries "one people,"it is not perceived (with all deference to Mr.Chief Justice Jay)why the people of Gaul,Britain,and Spain might not have been "one people,"while Roman provinces,notwithstanding "the patriots"did not say so.The general relation between the colonies and the parent country is as well settled and understood as any other,and it is precisely the same in all cases,except where special consent and agreement may vary it.Whoever,therefore,would prove that any peculiar unity existed between the American colonies,is bound to show something in their charters,or some peculiarity in their condition,to exempt them from the general rule.Judge Story was too well acquainted with the state of the facts to make any such attempt in the present case.The Congress of the nine colonies,which assembled at New York,in October,1765,declare that the colonists "owe the same allegiance to the Crown of Great Britain,that is owing from his subjects born within the realm,and all due subordination to that august body,the Parliament of Great Britain.""That the colonists are entitled to all the inherent rights and liberties of his [the King's] natural born subjects within the Kingdom of Great Britain,"We have here an all-sufficient foundation of the right of the Crown to regulate commerce among the colonies,and of the right of the colonists to inhabit and to inherit land in each and all the colonies.They were nothing more than the ordinary rights and liabilities of every British subject;and,indeed,the most that the colonies ever contended for was an equality,in these respects,with the subjects born in England.The facts,therefore,upon which Judge Story's reasoning is founded,spring from a different source from that from which he is compelled to derive them,in order to support his conclusion.
So far as Judge Story's argument is concerned,the subject might be permitted to rest here.Indeed,one would be tempted to think,from the apparent carelessness and indifference with which the argument is urged,that he himself did not attach to it any particular importance.It is not his habit to dismiss grave matters with such light examination,nor does it consist with the character of his mind to be satisfied with reasoning which bears even a doubtful relation to his subject.Neither can it be supposed that he would be willing to rely on the simple ipse dixit of Chief Justice Jay,unsupported by argument,unsustained by any reference to historical facts,and wholly indefinite in extent and bearing.Why,then,was this passage written?As mere history,apart from its bearing on the Constitution of the United States,it is of no value in this work,and is wholly out of place.All doubts upon this subject will be removed in the progress of this examination.The great effort of Judge Story,throughout the entire work,is to establish the doctrine,that the Constitution of the United States is a government of "the people of the United States,"as contradistinguished from the people of the several States;or,in other words,that it is a consolidated,and not a federative system.His construction of every contested federal power depends mainly upon this distinction;and hence the necessity of establishing a oneness among the people of the several colonies,prior to the Revolution.It may well excite our surprise,that a proposition so necessary to the principal design of the work,should be stated with so little precision,and dismissed with so little effort to sustain it by argument.One so well informed as Judge Story,of the state of political opinions in this country,could scarcely have supposed that it would be received as an admitted truth,requiring no examination.It enters too deeply into grave questions of Constitutional law,to be so summarily disposed of.We should not be content,therefore,with simply proving that Judge Story has assigned no sufficient reason for the opinion he has advanced.
The subject demands of us the still farther proof that his opinion is,in fact,erroneous,and that it cannot be sustained by any other reasons.
