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COMMENTARIES.

PRELIMINARY CHAPTER.

PLAN OF THE WORK.

The principal object of these Commentaries is to present a full analysis and exposition of the Constitution of Government of the United States of America. In order to do this with clearness and accuracy, it is necessary to understand what was the political position of the several States composing the Union, in relation to each other at the time of its adoption. This will naturally conduct us back to the American Revolution, and to the formation of the Confederation conscquent thereon. But if we stop here, we shall still be surrounded with many difficulties in regard to our domestic institutions and policy, which have grown out of transactions of a much earlier date, connected on onc side with the common dependence of all the colonics upon the British Empire, and on the other with the particular charters of government and internal legislation which belonged to each colony as a distinct sovereignty, and which have impressed upon cach peculiar habits, opinions, attachments, and even prejudices. Traces of these peculiaritics are everywhere discernible in the actual jurisprudence of each State; and are silently or openly referred to in several of the provisions of the Constitution of the United States. In short, without a careful review of the origin and constitutional and juridical history of all the colonies, of the principles common to all, and of the diversities which were no less remarkable in all, it would be impossible fully to understand the nature and objects of the Constitution; the reasons on which several of its most important provisions are founded; and the necessity of those concessions and compromises which a desire to form a solid and perpetual Union has incorporated into its leading features.

The plan of the work will, therefore, naturally comprehend three great divisions. The first will embrace a sketch of the charters, constitutional history, and ante-revolutionary jurisprudence of the colonies. The second will embrace a sketch of the constitutional history of the States during the Revolution, and the rise, progress, decline, and fall of the Confederation. The third will embrace the history of the rise and adoption of the Constitution; and a full exposition of all its provisions, with the reasons on which they were respectively founded, the objections by which they were respectively assailed, and such illustrations drawn from contemporaneous documents, and the subsequent operations of the government, as may best enable the reader to estimate for himself the true value of each. In this way, as it is hoped, his judgment as well as his affections will be enlisted on the side of the Constitution, as the truest security of the Union, and the only solid basis on which to rest the private rights, the public liberties, and the substantial prosperity of the people composing the American Republic.

BOOK I.

HISTORY OF THE COLONIES.

CIIAPTER I.

ORIGIN OF THE TITLE TO TERRITORY OF THE COLONIES.

§ 1. The discovery of the continent of America by Columbus in the fifteenth century awakened the attention of all the maritime states of Europe. Stimulated by the love of glory, and still more by the hope of gain and dominion, many of them early embarked in adventurous enterprises, the object of which was to found colonies, or to search for the precious metals, or to exchange the products and manufactures of the Old World for whatever was most valuable and attractive in the New.1 England was not behind her continental neighbors in sceking her own aggrandizement, and nourishing her then infant commerce. The ambition of Henry the Seventh was roused by the communications of Columbus, and in 1495 he granted a commission to John Cabot, an enterprising Venetian, then settled in England, to proceed on a voyage of discovery, and to subdue and take possession of any lands unoccupied by any Christian Power, in the name and for the benefit of the British Crown. In the succeeding year Cabot sailed on his voyage, and having first discovered the islands of Newfoundland and St. John's, he afterwards sailed along the coast of the continent from the 56th to the 38th degree of north latitude, and claimed for his sovereign the vast region which stretches from the Gulf of Mexico to the most northern regions.

1 Marshall's Amer. Colonies, 12, 13; 1 Haz. Collec. 51, 72, 82, 103, 105; Robertson's Hist. of America, B. 9.

2 Robertson's America, B. 9.
8 1 Haz. ('oll. 9; Robertson's Hist. of America, B. 9.
• Marshall, Am. Colon. 12, 13; Robertson's America, B. 9.

§ 2. Such is the origin of the British title to the territory composing these United States. That title was founded on the right of discovery, a right which was held among the European nations a just and sufficient foundation on which to rest their respective claims to the American continent. Whatever controversies existed among them (and they were numerous) respecting the extent of their own acquisitions abroad, they appealed to this as the ultimate fact, by which their various and conflicting claims were to be adjusted. It may not be easy upon general reasoning to establish the doctrine that priority of discovery confers any exclusive right to territory. It was probably adopted by the European nations as a convenient and flexible rule by which to regulate their respective claims. For it was obvious, that in the mutual contests for dominion in newly discovered lands, there would soon arise violent and sanguinary struggles for exclusive possession, unless some common principle should be recognized by all maritime nations for the benefit of all. None more readily suggested itself than the one now under consideration; and as it was a principle of peace and repose, of perfect equality of benefit in proportion to the actual or supposed expenditures and hazards attendant upon such enterprises, it received a universal acquiescence, if not a ready approbation. It became the basis of European polity, and regulated the exercise of the rights of sovereignty and settlement in all the cisatlantic Plantations. In respect to desert and uninhabited lands, there does not seem any important objection which can be urged against it. But in respect to countries then inhabited by the natives, it is not easy to perceive how, in point of justice or humanity, or general conformity to the law of nature, it can be successfully vindicated. As a conventional rule it might properly govern all the nations which recognized its obligation; but it could have no authority over the aborigines of America, whether gathered into civilized communities or scattered in hunting tribes over the wilderness. Their right, whatever it was, of occupation or use, stood upon original principles deducible from the law of nature, and could not be justly narrowed or extinguished without their own free consent.

§ 3. There is no doubt that the Indian tribes, inhabiting this continent at the time of its discovery, maintained a claim to the

1 Johnson v. M'Intosh, 8 Wheat, R. 543, 572, 573; 1 Doug. Summ. 110.

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