States might be formed upon soil already ours; and Congress might then receive them into the larger organization of the federal system. But here legislation must stop. There was no warrant, no competency for carrying its enterprises further. Foreign lands, that is, lands to which the jurisdiction of Congress did not as yet extend, could not possibly be reached by any action of that body. Fundamental principles forbade it. No human jurisdiction is unlimited; no human jurisdiction can take effect by its own vigor where it is not. But lastly, the treaty-making powermight not that help us to a slice of foreign soil, upon occasion of very strong appetite? government with a long radius for its sceptre, differs in like manner from one of comparatively small jurisdictional limits. Besides, in proportion as you multiply particular States, you reduce the weight of each in the federal councils. Massachusetts, for instance, was formerly as one to thirteen in the Senate of the Union; a proportion liable to be reduced by fair means (that is, by new States, formed upon old territories) to the ratio, we will suppose, of one to twenty-one or two. But imagine the government at Washington to throw its arms abroad and take in ten or twenty States from the outer world, beyond the original bearing of the national compact, a terra incognita to the constitutional fathers; what would Massachusetts be then in the senatorial huddle of the republic? The little State of Delaware was something once, with her single representative and two senators in Congress; but what will Delaware be when all the territories acquired from France, Spain, Mexico, shall have been worked up into States ? I apprehend this too is impossible upon legal principles. Such a power is indeed given, and in broad terms; nor will I pretend to say what might be done with it by a government differently constituted from ours, and with different views of necessary policy in the matter of colonial institutions; but formed and principled as we are, there is an embarrassment upon our hands which must I think be fatal, so far as law and theory are concerned, toit any rightful extension of the national domain by treaty purchase. For I assume that such extension, if it were possible, can only be to the direct intent of a corresponding enlargement of the federal system, to take effect sooner or later, according to circumstances, by the introduction of new States into that system. But Depend upon it, such changes touch the Constitution in a nerve which, quiet as may be now, will vibrate by and by. It cannot be otherwise. In mercantile affairs the introduction of a new partner into a firm dissolves the firm that was, and creates another in law. That is often done by common consent-not otherwise. here is a case where a third party claims to bring in new members, and without conWe have no co-sulting the old firm. Can it be done? I answer, no. And for this plain reason, that it requires, not simply a treaty-making, but a constitution-making power to effect it; and to such a power the president and senate have no pretension. lonial dependencies, and no law or policy for any. Perhaps the argument would not be much less cogent if we had. But the fact that we have not, is a truism by universal consent. I say then, to make a territorial acquisition with such views, is necessarily to touch the Constitution of the country in the relation of the head and members of the system to each other-a very tender, nay, a vital point. Is the thing doubtful? examine it. The relation of comparative extent itself, as between a State and the Union, is something. But other relations, more important far, grow out of that. Comparative resources, comparative jurisdiction, comparative dignity, influence, power. Great landholders are very different personages from little ones; and a VOL. IV. NO. III. NEW SERIES. The truth is, the treaty-making power being vested in the President and Senate by general words of delegation, takes its range and bearing from the common law. It can therefore do no more, assuredly, than nations have been accustomed to do with it, time immemorial. This is putting the case in the most liberal light that can be; for the peculiarity of our forms and polity is now put out of view. What then does national usage and custom teach us that this power is equal to ? At the very utmost, to a purchase of colonial dependencies. Such dependencies have been 19 often secured by treaty. But as to purchasing states, whether fully grown or in embryo, by way of organic enlargement of an empire, there is, I undertake to say, no custom, no usage, no solitary example for it since the world began. So that the common law can afford no countenance to such a practice. Since, therefore, the President and Senate are without any expressly granted authority for altering the constitutional relations of the State Governments with that of the Union, and since the want of such express authority is not and cannot be made up to them by construction of law, it follows, that no right of acquiring foreign territories by treaty, in order to turning them at length into constituent portions of the federal system, exists under the compact by which that system was formed. It is a system depending, beyond all parallel, on nice adjustments, as well between the States and the Union as elsewhere; and the fathers never thought of introducing into it a principle of sure progressive derangement, which, however its operation might be borne with for a time, must tend infallibly to confusion and ultimate ruin. Let it not be fancied, that because the President and Senate represent the people, therefore the people are to be regarded as assenting to all the treaties that are made. The people are represented no further than the power exercised is legitimate. They assent of course by implication to treaties lawfully made, that is within the just range of the treaty-making power. But my position is, that to purchase new States from abroad, such either in fact or contemplation, is beyond the scope of the power, and so without legal authority. It is an act of constituent, not administrative sovereignty; of usurpation, consequently, on the rights of the people, and not of duty in their service.* *NOTE BY THE EDITOR.-As the series of articles, of which the above is a member, requires to be published without change, to stand or fall by its own merits; and as the usual editorial policy of admitting nothing inconsistent with an adopted course, cannot in this case be adhered to, we can here only enter a personal objection to the opinion of the learned and able writer, that the Constitution is impaired by the admission of new States, erected upon ceded or purchased territory. Florida, Oregon, Texas, Louisiana, California, New Mexico, are as much a part of us, as if they had originally belonged Neither let it be imagined that I overrate the probable consequences of an indefinite extension of federal territory, as regards the equipoise of our system. The States to the thirteen States; and the erection of new States upon them is a matter of necessity. Nor do we think it can be said, in strictness, is, perhaps, the best colonial system ever erected. that we have no colonial system; our territorial Nor does the comparison of a "firm" seem to hold good in regard to the admission of new States. The importance of individual States may be lessened, but is the importance of the Union lessened, or the system weakened as a whole? It seems to us that it is not. The spirit of a system is not necessarily changed by the enlargement of the body which it governs. The fathers contemplated the addition of Canada, then why not of other territory? The common law takes its rise from the application of reason and necessity to the immediate circumstances; it does not control or limit the growth of States, but only produces a just order in affairs as they proceed. The English constitution and the common law do not jar, yet the empire of England has been enlarged in every way. If the doctrine be admitted, that bad treaties are not binding on the people because they are bad, we should have no government left. The President and Senate are plenipotentiaries under the Constitution, and will sometimes make bad treaties; but we, the people, can only make the best of it; we have elected our officers, and must suffer by them. The treatymaking power is in fact in the Senate; the Senate represents States, "the partners in the firm;" if the partners chose to admit new members, formed out of colonies of citizens, we cannot help it. A company is dissolved by the admission of new partners, for legal purposes; in order that the law may maintain its ascendency, starting from the new record to control the new circumstances, and not because the principle of a partnership is changed by the addition of a new member. In the case of the admission of a State, the record is effectually made, and the laws go on as before. Such, we are obliged to say, are our objections to the learned author's argument. We have always advocated, and shall always advocate, the regular admission of new States, and have no fears for any deterioration of the general system, though it seems to us that our author has established the conclusion that the individual States are weakened by the enlargement of the body of the Union. Our Southern citizens, who have been so eager for the admission of new States, will perhaps profit by the hint. The importance of South Carolina dwindles a little with every new addition to the confederacy, while the power of the entire system, and the sway of national majorities, is proportionably augmented. One would think that violent State-rights men would have opposed the acquisition of territory. are a great feature of that system, a mo- | mentous feature. And their importance in it depends upon their relative magnitude and weight of influence as compared with the head government. It is this that makes them such a capital check upon that government, according to the recorded opinions of the early patriots. And would it be nothing to these vast subdivisions of the commonwealth to find themselves reduced suddenly, or by unmarked degrees, to the dimensions of mere counties in the general scale?-lost sight of, one by one, like individuals in a mob? True, indeed, the nation as a whole is our own, and we are apt to be fond partakers of its glory whencesoever derived; applauding when its armies conquer, and making every expansion of its sway a matter of personal triumph. All which, however, is but a commentary on the views I have urged; a living annotation upon the text of our danger. It shows to a marvel how war and territorial acquisition build up the pile of political supremacy; exalting the head, not only to the disparagement, but often, generally perhaps, with the blind concurrence of the members. Let us not deceive ourselves. The fathers had no part in this infatuation of the popular mind. They saw that it was necessary for the members to maintain their relative standing, and there is nothing truer or more vital in our case. Extension of territory is increase of power in the head government. How can it fail to be so? Money is said to be power. Double the national domain, and, other things being equal, you double the pecuniary means of the federal administration. Business is power. By enlarging the jurisdiction of office, you multiply subjects and occasions of official action. Patronage is power; and what a swarm of appointments must inevitably gather upon every new hive of the national apiary. Fame, worship, is power, and we are witnesses against ourselves, that men are prone to honor worldly greatness and prosperity, with very little care of discrimination as to points of justice, points of prudence, points of law itself, connected with the magnificence of a nation's exploits. Of the original adaptation of the government to the actual state of things in the country, much need not be said. Our elements were very simple. Peculiarities indeed there were, that claimed attention and accommodation, and received it. I will mention two or three. One of importance was, the diversity of condition among men in the matter of property; as to which, there was a triple alternative at the option of the lawgivers. They could give official eligibility, and the right of choice among candidates for public stations, to the wealthy alone, a small part of the community; to the whole popular mass, the majority of whom had nothing to bind them to the country, or to attest their personal fitness for meddling in its affairs; or to a middle class or classes of society, greatly more numerous than the former, greatly less so than the latter, and who would be likely to act with a reasonable sympathy at once for rich and poor, tempering matters impartially between them. The option was easily determined, and determined as it ought to be. A low property qualification was annexed to the right of suffrage, and a somewhat higher one to that of being admitted to the trusts at its disposal. The prevailing religion of the country may be given as another instance. There were various sects of Protestant Christians. Their differences were for the most part formal. It would not do to set up one above the rest, and yet as Christians they must not be overlooked, for their religious sentiments and interests were very dear to them. The patriarchs went therefore for the substance of things, and let forms alone. To atheism, too rare to have any claims, and too detestable for gratuitous favor, they gave no countenance whatever; and they looked with stern dislike upon ecclesiastical connections, under whatever guise of Christian seeming, that drew off the allegiance and the love of the people from their own land and institutions. General Christianity, untrammeled with such connections, was deemed essential to high and pure citizenship; and this became the religion of the government and of the laws. There was in the country a settled popular aversion to privileged orders. We had felt the weight of such burdens, and it was impossible we should submit our backs to them again. Instead of that, the universal demand was, absolute equal- | ity of legal rights. The principle had grown to a passion among us, and would not be put off with evasions; it must be gratified with direct concessions; it must be explicitly provided for. Seeing this, and feeling it too, the fathers readily conformed. And thus a third social element was taken into the account of the govern ment. Shall I refer to African slivery, as yet a further fact in the existing state of things, that could not be overlooked, and could not be prevented from blemishing the arrangements of the time with a provision concerning it. Here, however, that which was done was done by painful compromise, and to surmount an otherwise insuperable difficulty in the concoction of the federal scheme. It is said in certain quarters, that the federal Constitution sanctions slavery and protects it. The language is too broad. The constitutions of the slave states themselves go not so far. Not one of them protects slavery by any positive means, not one of them sanctions it, further than by the odious prohibition of legislative emancipation that disgraces some of them. As to the federal charter, the only clause that gives color to the pretense in question, is the last paragraph of the second section, article fourth, which provides, "that no person held to service or labor in one state under the laws thereof, and escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due." In fewer words, no person held to service by the law of one state, shall have his obligation of service disannulled by the law of another state into which he may have run away from his master. Of slaves, or slave law, as such, not a syllable is said. No protection certainly, and no sanction, in terms. Nor is there any by implication, unless the bar against officious meddling in cases of elopement can be tortured into such a meaning, which is quite beyond the power of fair criticism. The truth lies upon the surface. The existence of involuntary servitude in some of the states, was a social and civil fact in the condition of those states when the convention of '87 were at work upon their great task. The law or custom of that servitude was strictly local. There were other states near by, into which its victims might easily escape, where the pure common law made slavery impossible. Thus circumstanced, the people of the slave localities, in giving up to the new central government their right of control over their relations and intercourse with the neighboring states, demanded a guaranty against the snapping interposition of the civil officers of those states to deprive them of their runaway slaves. And they were strenuous in this. There was indeed no getting on with the great project of the time, perhaps no guarding against frequent breaches of the peace, without some pacifying arrangement on the subject. required guaranty was accordingly given. And it was a guaranty of a purely negative character; not an act of favor or approval in any form, but of simple non-interference or standing aloof. The If a state had a law to hang men, as they used to do in England, for horse-theft, would it be a sanction of the severity of that law should a sister state, for peace' sake, and to avoid continual broils, deny herself the right of harboring fugitives from its penalty? Slavery indeed is against the general law of the country. Out of the place of the local custom or statute, where its chains are, it cannot exist; there is no place for it, no air for it to breathe. Mr. Benton is right; it cannot legally, and I will say constitutionally, be introduced where it is not. A statute of Congress, that should purport to legalize it in a free territory, would be void by natural law, by God's law, and might be so declared judicially without danger of mistake. Even English authorities may be cited for the position that an act of highest legislation, if against natural right, is null. Holt and Hobart, both of them great names (the former, one of the very greatest) in English judicature, held this opinion.* Think of this, in reference to a polity that makes the legislature omnipotent. It were strange indeed if American morals were less legal, less fundamental, than English, on such a point. But after all, what had the paternal lawgivers to do with any point of that kind? Could they not abstain from meddling with runaway slaves without becoming abettors of slavery? Were they not free to stand aside, and leave a turbid stream to run clear by itself if it would? How could their forbearance draw upon them the reproach of puddling the waters of the land, especially when it was plainly impossible to obstruct those waters but at the hazard of a desolating overflow ? Such then was the government in its origin; a government which few travellers have adequately understood, and which the most eminent foreign writers have spoken of with surprising inaccuracy. Little wonder, perhaps, when it is considered that blunders greater still have found perpetrators among ourselves. Yet the founders of the system knew thoroughly what they were about. And they left their work, as I conceive, in a very intelligible shape, with strong characteristic marks upon every part of it. Such too as they left it, they intended and expected it to continue. The general absence from it of all machinery of change, shows this. In which respect, however, their views have been disappointed. Changes not a few, and not inconsiderable, have been made already in their system. Nay, it has been subjected to a law of change, a principle that allows it no rest; I will add, no prospect of rest, till either a political heaven, or at worst, a grave is found. Of the thirteen primary States, New Hampshire has wholly remodelled her constitution twice since the first organizing act; Connecticut and Rhode Island, once each; New York, twice; New Jersey, once; Pennsylvania, twice; Delaware, once; Virginia, once; South Carolina, once; and Georgia, twice. Fourteen thorough renovations in ten States. Besides which there have been partial changes, called amendments, in Massachusetts, Connecticut, Delaware, Maryland, North Carolina, South Carolina, Georgia, at successive periods, and with very material effects. The federal compact itself has been repeatedly amended, (always I think for the worse,) though never put entirely into the furnace of a second national con vention. Meanwhile seventeen new states have been ushered into the Union; some from the original domain of the country; some from territories newly acquired by treaty; and one, a full-grown foreign commonwealth, lugged in bodily, by legislative sleight of hand, a mysterious method of "annexation." In numbers of these states of increase, (Kentucky, Tennessee, Louisiana, Mississippi, and I know not how many more,) the renewing process, in one or both of its forms, has been plied with due activity, and is going bravely on from year to year, a la mode. Not only so, but in several of the constitutions lately formed, provision is made for calling conventions, at stated intervals, (if agreeable to the electors for the time being,) to brood anew and periodically over the life elements of the republic. By the last constitution of New York, the people are to be invited to this pastime every twentieth year; by that of Indiana, every twelfth year; by that of New Hampshire, every seventh. In other states, things have not yet come to this pass, but in all there are methods duly settled for making progress in the work of reform, and in all there is an incessant hammering at the fundamental laws. So that besides an immensity of work already done in this field of human adventure, preparations are matured for going vigorously forward with the business in time to come. Mutation has become indeed the order of the day. It is our policy, our rule. Not content with going ahead personally, we have infused the go-ahead principle (do not smile, it is a portentous truth,) into the very foundations of the republic. But the changes actually made in our polity, what are they? Let us ponder them a little, that we may the better judge of the direction of our course, and what we are coming to. Beginning with the State economies, I am afraid it will appear that nearly the whole line of conservative arrangements, so conspicuous in the first platform, has been erased. Take the important instance of the property qualification, once indispensable to candidates for the upper stations of public life, but which is now not only in general dispensed with, but cried out against as aristocratic and injurious. New |