referred to, is, that right of bringing in for adjudication, in time of peace, foreign vessels engaged in the slave-trade, and captured on the high seas for that cause, did not exist; and vessels so captured would be restored, unless the trade was als unlawful, and prohibited by the country to which the vessel belonged; and if a claim be put in for Africans as slaves and property, the onus probandi is thrown upon the claimant to make specific proof of the individual proprietary interest according to the laws of the country to which the vessel belongs.

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PART II.

OF THE GOVERNMENT AND CONSTITUTIONAL JURISPRUDENCE OF THE UNITED STATES.

LECTURE X.

OF THE HISTORY OF THE AMERICAN UNION.

THE government of the United States was erected by the free voice and joint will of the people of America, for their common defence and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their stability and protection on the consolidation of the Union. It is clothed with the principal attributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness. The constitution and jurisprudence of the United States deserve the most accurate examination; and an historical view of the rise and progress of the Union, and of the establishment of the present Constitution, as the necessary fruit of it, will tend to show the genius and value of the government, and prepare the mind of the student for an investigation of its powers.

*

The association of the American people into one body politic took place while they were colonies of the British empire, and owed allegiance to the British crown. That the * 202 union of this country was essential to its safety, its prosperity, and its greatness had been generally known, and frequently avowed, long before the late revolution, or the claims of the British Parliament which produced it. The people of the New England colonies were very early in the habit of confederating together for their common defence. As their origin [209]

VOL. I.

14

and their interests were the same, and their manners, their religion, their laws, and their civil institutions exceedingly similar, they were naturally led to a very intimate connection, and were governed by the same wants and wishes, the same sympathies and spirit. The colonies of Massachusetts, Plymouth, Connecticut, and New Haven as early as 1643, under the impression of danger from the surrounding tribes of Indians, and for protection against the claims and encroachments of their Dutch neighbors, entered into a league, offensive and defensive, which they declared should be firm and perpetual, and be distinguished by the name of the United Colonies of New England. By their articles of confederation, each colony was to have exclusive jurisdiction within its own territory; and in every war, offensive and defensive, each of the confederates was to furnish its quota of men and money in a ratio to its population; . and a congress of two commissioners, delegated from each colony, was to be held annually, with power to deliberate and decide on all affairs of war and peace, and on all points of common concern ; and every determination, in which three fourths in number of the assembly concurred, was to be binding upon the whole confederacy. (a)

This association may be considered as the foundation of a series

of efforts for a more extensive and more perfect union of *203 the colonies. It contained some provident and *jealous

provisions, calculated to give security and stability to the whole. It provided that no two colonies were to join in jurisdiction, without the consent of all; and it required the like unanimous consent to admit any other colony into the confederacy; and if any one member violated any article of it, or any way injured another colony, the commissioners of the other colonies were to take cognizance of the matter, and determine upon it. In this transaction, and under the authority of this union, the New England colonies acted, in fact, as independent states, and free from the control of any superior power, because the civil war in which England was then involved occupied the whole

(a) Hazard, State Papers, 496, 583, 590; Hutchinson, History of Massachusetts, i. 124, 126; Robertson, Posthumous History of America, b. 10, pp. 191, 192; Winthrop, Hist. of New England, by Savage, ii. 101; Baylies, Historical Memoir, ii. 118; Trumbull, History of Connecticut, i. 124; Plymouth Colony Laws, App. 308, ed. 1836.

attention of the mother country; and this first step towards a future independence was suffered to pass without much notice, and without any animadversion. The confederacy subsisted, with some alterations, for upwards of forty years, and for part of that time, with the countenance of the government in England. It was not dissolved until the year 1686, when the char. ters of the New England colonies were in effect vacated by a commission from King James II. (a)

The people of this country, after the dissolution of this earliest league, continued to afford other instructive precedents of association for their safety. A congress of governors and commissioners from other colonies, as well as from New England, was occasionally held, to make arrangements for the more effectual protection of our interior frontier, and we have an instance of one of these assemblies at Albany, in 1722. (b) But a much more interesting congress was held there in the year 1754. It consisted of commissioners from New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Pennsylvania, and Maryland, and was called at the instance of the lords commissioners for trade and the plantations, to take into consideration the best means of defending America, in case of war with France, which was then impending. The object of the English * ad- * 204 ministration in calling this convention was in reference to treaties of friendship with the Indian tribes; but the colonies had more enlarged views; and the commissioners which met in congress, and who enrolled among their number some of the most distinguished names in our colonial history, asserted and promulgated several invaluable truths, the proper reception of which, in the minds of their countrymen, prepared the way for their future independence, and our present greatness. One of the colonies (Massachusetts) expressly instructed her delegates to enter into articles of union and confederation with the other colonies, for their general security in peace as well as in war. The convention unanimously resolved, that a union of the colonies was absolutely necessary for their preservation. They rejected all proposals for a division of the colonies into separate confederacies, and proposed a plan of federal government, consisting of a general council of delegates, to be triennially chosen (a) Hutchinson, History of Massachusetts, i. 126, note. (b) Smith, History of New York, i. 171.

*

by the provincial assemblies, and a president-general, to be appointed by the crown. In this council was vested, subject to the immediate negative of the president, and the eventual negative of the king in council, the rights of war and peace, in respect to the Indian nations; and the confederacy was to embrace all the then existing colonies, from New Hampshire to Georgia. The council were to have authority to make laws for the government of new settlements, upon territories to be purchased from the Indians, and to raise troops and build forts, and even to equip vessels of force, to guard the coast and protect trade, as well on the ocean as upon the lakes and rivers. They were likewise to make laws, and lay and levy general duties, imposts, and taxes, for those necessary purposes. (a) But the *205 times were not yet ripe, nor the minds of men sufficiently enlarged, for such a comprehensive proposition; and this bold project of a continental union had the singular fate of being rejected, not only on the part of the crown, but by every provincial assembly. It was probably supposed, on the one hand, that the operation of the union would teach the colonies the secret of their own strength, and the proper means to give it activity and direction; while, on the other, the colonies were jealous of the preponderating influence of the royal prerogative. We were destined to remain, for some years longer, separate, and, in a considerable degree, alien commonwealths, emulous of each other in obedience to the parent state, and in devotion to her interests; but jealous of each other's prosperity, and divided by policy, institutions, prejudice, and manners. So strong was the force of these considerations, and so exasperated were the people of the colonies in their disputes with each other concerning boundaries and charter claims, that Doctor Franklin (who was one of the commissioners to the congress that formed the plan of union in 1754) observed, in the year 1760, that a union of the colonies against the mother country was absolutely impossible, or at least without being forced by the most grievous tyranny and oppression. (a)

(a) Franklin's Works, edited by Sparks, iii. 22-55; Smith, History of New York, ii. 219-225; Marshall, Life of Washington, i. n. 8; Massachusetts Historical Collections, vii. 203-214.

(a) Franklin's Works, edited by Sparks, iv. 42. Governor Pownal, in his work on the Administration of the Colonies (the 4th edition of which appeared in 1768), declared that the colonies had no one principle of association amongst them, and