anty of public virtue-a thing of unspeakable importance everywhere. Not the religion of frenzy nor of sect, but religion in its general substance-the religion of the gospel. The fathers wished to tie the hearts of the people to their institutions, and they imbued these with the religion which the people then loved. Religious babels were not wanted. Religious feudal systems, with alien lords paramount, did not suit a polity which claimed the citizen's whole allegiance for his own government. This government was not made strong enough to do without the people's affections, much less to abide the distracting competition of foreign claims upon them. Foreign allegiance, therefore, of whatever type, was expected to be abjured, and the rules of our own national piety and patriotism undividedly embraced. In one respect undoubtedly the close and sympathetic relations of the Union government with that of the particular States brought the former into a kind of independence that might subject it to possible mischief, though a mischief in which the States must also participate. I allude to the provision of the federal Constitution, by which the State electorships for members of assembly were adopted as organs of choice for representatives in Congress. In which respect the character of one branch of the national legislature was left in some measure at the future mercy of the States; so that a change made at Albany or Harrisburg in the vesting of the electoral franchise must affect the whole country. A matter of grave consequence certainly. It were well if our thirty faculties of constitutional dissectors would bethink themselves that the nerves they handle with such surgeonlike freedom extend to Washington. On the other hand, there are points in which it was left possible for a State to alter its economy, and take all the fruits to itself. By which means the equilibrium of the system might be sadly interfered with, and its working impaired. tenure. The evil, if such it were, would fall directly on the local government, while the Union might continue to hold up its head in undiminished honor, character, and influence; and the comparative result would be, a loss to one of the members of the political body, and a corresponding gain to the head. Or, suppose a State to put itself under a sort of process of depletion, by reducing its terms of office from three years to one in the case of its chief magistrate, and from four to two in that of its senators. Does any man question that the effect must be, upon the whole, to let down the tone of the particular government, and take somewhat from its relative weight of character? Does any man fail to see, that this must needs redound to a proportional exaltation of the central government ? Or, finally, suppose a State government to have its mantle of patronage stripped off, and all appointments made over to the disposal of the popular electors. What follows? Does not the shame of that government's nakedness appear? Tell me not that the people are represented by their officers, and that the majesty of the people never varies. The people are out of sight and unthought of. The immediate organs of power fill the eye for the time. Degrade these, and you degrade the State in their persons, the people's majesty notwithstanding. We must take things practically, by the world's measure. Rank and influence result from actual circumstances, not from philosophical musings of what ought to be. A government without patronage may be a noble ship; but it is a ship under bare poles, that makes not half the impression on us in that plight of destitution as when all her glorious canvass swells in the breeze. One thing, however, may be stated with confidence; the fathers left the State in high relative condition; free, indeed, to fall by their own acts, but not exposed to any known power of injurious depression at the hands of the federal government. How could that government hurt them if it would? and what temptation was it under, to desire to hurt them? The greater they were, the more honorable its precedency over them in national affairs. The general fear of considerate men was, Suppose, for instance, that a State should so change its Constitution as to degrade one of the jurisdictional branches of its government, and sympathetically the others too, by depriving the judges of that jewel of modern policy, the independent | that the States would prove too great for ceived of as within the granted powers of the government. the stability of the Union. Washington | chase. No other means could be conentertained this fear, and so did Hamilton, and many others. Indeed, supposing the States true to themselves, I do not see how it was possible for the central government to work its way to a disproportionate and dangerous pre-eminence, save by one or both of two expedients; that is to say, by the adoption of a war policy, or a policy of territorial acquisition; neither of which, in my humble judgment, was compatible with the fundamental laws. Let us think of it a moment. As to war, the most aggrandizing and fearful of all the expedients of ambition when successful, and which, if it could be entered upon at pleasure by the federal government, might truly make that government everything, and the States nothing, the original policy of our institutions was clear and unequivocal against it. We were, for example, to have no considerable standing army. The early records are full of this axiom. We were to depend in ordinary, for our military operations, on the citizen militia; another primitive axiom, or rather, another form of the same. And then the specified conditions on which alone, according to the federal charter itself, the militia might be called into service, shut out altogether the notion of an aggressive foreign war. Citizens cannot be sent abroad against their will, though it were to fight the country's battles. More than all, a war of aggres sion is one which, as a Christian people (constitutionally such in profession) we may not, cannot urge. Could it be done by conquest? Citizen soldiers would hardly have been preferred to enlisted troops with such views. Nor were such views consistent with the religion, the morals, the laws, of the country in its first and purest age. The notion of an habitually grasping policy was as foreign to our institutions then, as that of highway robbery was to the economy of private life under them. Indeed, the very savages of our forests were safe from the injustice of such a policy. Instead of invading the Indian settlements for purposes of prey, the fathers carried nothing but the arts of civilization and the blessings of Christianity among them. Instead of taking away the lands of the poor red man, the fathers protected his title to them, and did all they could to make his occupancy safe, useful, agreeable, permanent. The government had a right of eminent domain over many of the Indian territories, but this right was held in scrupulous deference to the right of the actual possessors to enjoy them as long as they pleased, and who were never, on any account, to be disturbed or disquieted a pleasing evidence of the unambitious, self-denying character of our early policy, as to what so many modern politicians think it impossible to get enough of now. The days of aggression and of conquest had not yet dawned. As to legislation, it is a milder expedient, but inapplicable to the purpose. Legislation is the exercise of an essentially internal power, and of course the fathers could not expect it to go abroad. Most true, there was an acknowledged form of that power for admitting new States into the Union. This, however, operated no enlargement of territorial jurisdiction in Congress; no change of the axiom that legislation cannot, in the nature of things, make its voice heard beyond the actual borders of the country. The jurisdiction of Congress was still rigidly confined to its domestic province. The common law, as well as common reason, settled this point; so that the power of admitting new States extended not an inch beyond the national domain as it then was. Exist But how as to the national domain? Was that to be enlarged indefinitely? If it was, adieu to all safe proportion between the head and members of the Republic. I affirm, however, that by the unadulterated rule of the fathers the thing was impossible. They certainly would not have been apprehensive of the growing consequence of the State governments, as likely to disturb the general balance of the system, if they had supposed the government of the Union capable of widening its foundations at pleasure, and thus availing itself of resources of wealth, influence and domination, to which no bounds could beset. Let us see. If foreign territories were to be acquired at all, it could only be by conquest, by legislation, or by treaty-pur-ing materials might be worked up; new States might be formed upon soil already | government with a long radius for its scepoften secured by treaty. But as to pur- | Neither let it be imagined that I overrate 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? 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, to 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. We have no colonial 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. tre, 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? But Depend upon it, such changes touch the Constitution in a nerve which, quiet as it 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 consulting 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. 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 chasing 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. 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, that we have no colonial system; our territorial Since, therefore, the President and Sen- is, perhaps, the best colonial system ever erected. ate 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 seem Nor does the comparison of a "firm" 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 imme diate 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 ac a part of us, as if they had originally belonged | quisition of territory. are a great feature of that system, a momentous 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 record ed 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 poриlar 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, |