Justice Joseph Story on Common Law and Constitutional Origins of the United States Constitution


[EDITOR'S NOTE:  JUSTICE JOSEPH STORY ON COMMON LAW AND CONSTITUTIONAL ORIGINS OF THE UNITED STATES CONSTITUTION, including his Dedication and Preface to his Commentaries (1833).  The following is excerpted from:  Joseph Story, LL. D., Dane Professor of Law in Harvard University, Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, before the Adoption of the Constitution.  Abridged by the Author, for the Use of Colleges and High Schools (Boston: Hilliard, Gray, and Company/Cambridge: Brown, Shattuck, and Co., 1833), pp. iii-viii, 62-75, 105-109, 581, 606, 608.

    United States Supreme Court Justice Joseph Story (1779-1845) was a famous jurist, and his Commentaries was a very influential treatise on United States constitutional law.  Story, first a Jeffersonian Republican and then (following his appointment to the Supreme Court of the United States by President James Madison), a Federalist, was one of the United States' most influential Supreme Court justices.  His tenure on the Supreme Court spanned three decades, from 1811 to 1845.   At the beginning of the twentieth century, Story was elected to the Hall of Fame.   His views on the Constitution of the United States are still widely respected.

    Justice Joseph Story's first wife, Mary Lynde Fitch Oliver (1781-1805), whom he married on December 9, 1804, was a descendant of Governor Jonathan Belcher's sister Elizabeth Belcher Oliver (1678-1736).


TO THE

HONORABLE JOHN MARSHALL, LL. D.,

CHIEF JUSTICE OF THE UNITED STATES OF AMERICA.

    SIR,

    I ask the favour of dedicating this work to you.   I know not, to whom it could with so much propriety be dedicated, as to one, whose youth was engaged in the arduous enterprises of the Revolution; whose manhood assisted in framing and supporting the national Constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles.  When, indeed, I look back upon your judicial labours during a period of thirty-two years, it is difficult to suppress astonishment at their extent and variety, and at the exact learning, the profound reasoning, and the solid principles, which they every where display.   Other Judges have attained an elevated reputation by similar labours in a single department of jurisprudence.  But in one department, (it need scarcely be said, that I allude to that of constitutional law,) the common consent of your countrymen has admitted you to stand without a rival.  Posterity will assuredly confirm by its deliberate award, what the present age has approved, as an act of undisputed justice.   Your expositions of constitutional law enjoy a rare and extraordinary authority.   They constitute a monument of fame far beyond the ordinary memorials of political and military glory.  They are destined to enlighten, instruct, and convince future generations; and can scarcely perish but with the memory of the constitution itself.   They are the victories of a mind accustomed to grapple with difficulties, capable of unfolding the most comprehensive truths with masculine simplicity, and severe logic, and prompt to dissipate the illusions of ingenious doubt, and subtle argument, and impassioned eloquence.  They remind us of some mighty river of our own country, which, gathering in its course the contributions of many tributary streams, pours at last its own current into the ocean, deep, clear, and irresistible.

    But I confess, that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamour; no eager reaches for popular favour.  Who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of Washington, still lives, the uncompromising advocate of his principles?

    I am but too sensible, that to some minds the time may not seem yet to have arrived, when language, like this, however true, should meet the eyes of the public.  May the period be yet far distant, when praise shall speak out with that fulness of utterance, which belongs to the sanctity of the grave.

    But I know not, that in the course of providence the privilege will be allowed me hereafter, to declare, in any suitable form, my deep sense of the obligations, which the jurisprudence of my country owes to your labours, of which I have been for twenty-one years a witness, and in some humble measure a companion.   And if any apology should be required for my present freedom, may I not say, that at your age all reserve may well be spared, since all your labours must soon belong exclusively to history?

    Allow me to add, that I have a desire (will it be deemed presumptuous?) to record upon these pages the memory of a friendship, which has for so many years been to me a source of inexpressible satisfaction; and which, I indulge the hope, may continue to accompany and cheer me to the close of life.

                        I am with the highest respect,

                            affectionately your servant,

                                    JOSEPH STORY.

Cambridge, January, 1833.

 

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PREFACE

TO THE ORIGINAL WORK.

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    I now offer to the public another portion of the labours devolved on me in the execution of the duties of the Dane Professorship of Law in Harvard University.  The importance of the subject will hardly be doubted by any persons, who have been accustomed to deep reflection upon the nature and value of the Constitution of the United States.  I can only regret, that it has not fallen into abler hands, with more leisure to prepare, and more various knowledge to bring to such a task.

    Imperfect, however, as these Commentaries may seem to those, who are accustomed to demand a perfect finish in all elementary works, they have been attended with a degree of uninviting labour, and dry research, of which it is scarcely possible for the general reader to form any adequate estimate.  Many of the materials lay loose and scattered; and were to be gathered up among pamphlets and discussions of a temporary character; among obscure private and public documents; and from collections, which required an exhausting diligence to master their contents, or to select from unimportant masses, a few facts, or a solitary argument.  Indeed, it required no small labour, even after these sources were explored, to bring together the irregular fragments, and to form them into groups, in which they might illustrate and support each other.

    From two great sources, however, I have drawn by far the greatest part of my most valuable materials.  These are, The Federalist, an incomparable commentary of three of the greatest statesmen of their age; and the extraordinary Judgments of Mr. Chief Justice Marshall upon constitutional law.  The former have discussed the structure and organization of the national government, in all its departments, with admirable fulness and force.  The latter has expounded the application and limits of its powers and functions with unrivalled profoundness and felicity.  The Federalist could do little more, than state the objects and general bearing of these powers and functions.  The masterly reasoning of the Chief Justice has followed them out to their ultimate results and boundaries, with a precision and clearness, approaching, as near as may be, to mathematical demonstration.  The Federalist, being written to meet the most prevalent popular objections at the time of the adoption of the Constitution, has not attempted to pursue any very exact order in its reasoning; but has taken up subjects in such a manner, as was best adapted at the time to overcome prejudices, and win favour.  Topics, therefore, having a natural connexion, are sometimes separated; and illustrations appropriate to several important points, are sometimes presented in an incidental discussion.  I have transferred into my own pages all, which seemed to be of permanent importance in that great work; and have thereby endeavoured to make its merits more generally known.

    The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.  I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers by ingenious subtleties and learned doubts.   My object will be sufficiently attained, if I shall have succeeded in bringing before the reader the true view of its powers maintained by its founders and friends, and confirmed and illustrated by the actual practice of the government.  The expositions to be found in the work are less to be regarded, as my own opinions, than as those of the great minds, which framed the Constitution, or which have been from time to time called upon to administer it.  Upon subjects of government it has always appeared to me, that metaphysical refinements are out of place.  A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation.

    The reader will sometimes find the same train of reasoning brought before him in different parts of these Commentaries.  It was indispensable to do so, unless the discussion was left imperfect, or the reader was referred back to other pages, to gather up and combine disjointed portions of reasoning.   In cases, which have undergone judicial investigation, or which concern the judicial department, I have felt myself restricted to more narrow discussions, than in the rest of the work; and have sometimes contented myself with a mere transcript from the judgments of the court.  It may readily be understood, that this course has been adopted from a solicitude, not to go incidentally beyond the line pointed out by the authorities.

    In dismissing the work, I cannot but solicit the indulgence of the public for its omissions and deficiencies.  With more copious materials it might have been made more exact, as well as more satisfactory.  With more leisure and more learning it might have been wrought up more in the spirit of political philosophy.  Such as it is, it may not be wholly useless, as a means of stimulating abler minds to a more thorough review of the whole subject; and of impressing upon Americans a reverential attachment to the Constitution, as in the highest sense the palladium of American liberty.

    January, 1833.

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ADVERTISEMENT TO THE ABRIDGMENT.

    The present work is an abridgment, made by the author, of his original work, for the use of Colleges and High-schools.  It presents in a compressed form the leading doctrines of that work, so far as they are necessary to a just understanding of the actual provisions of the constitution.  Many illustrations and vindications of these provisions are necessarily omitted.  But sufficient are retained to enable every student to comprehend and apply the great principles of constitutional law, which were maintained by the founders of the constitution, and which have been since promulgated by those, who have, from time to time, administered it, or expounded its powers.  I indulge the hope, that even in this reduced form the reasoning in favour of every clause of the constitution will appear satisfactory and conclusive; and that the youth of my country will learn to venerate and admire it as the only solid foundation, on which to rest our national union, prosperity, and glory.

    April, 1833.


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CHAPTER XVI.

GENERAL REVIEW OF THE COLONIES.

      72.    We have now finished our brief survey of the origin and political history of the colonies; and here we may pause for a short time for the purpose of some general reflections upon the subject.

      73.    Plantations or colonies in distant countries are either, such as are acquired by occupying and peopling desert and uncultivated regions by emigrations from the mother country; or such as, being already cultivated and organized, are acquired by conquest or cession under treaties.   There is, however, a difference between these two species of colonies in respect to the laws, by which they are governed, at least according to the jurisprudence of the common law.  If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birthright of every subject.  So that wherever they go, they carry their laws with them; and the new found country is governed by them.

      74.    This proposition, however, though laid down in such general terms by very high authority, requires many limitations, and is to be understood with many restrictions.  Such colonists do not carry with them the whole body of the English laws, as they then exist; for many of them must, from the nature of the case, be wholly inapplicable to their situation, and inconsistent with their comfort and prosperity.  There is, therefore, this necessary limitation implied, that they carry with them all the laws applicable to their situation, and not repugnant to the local and political circumstances, in which they are placed.

      75.    Even as thus stated, the proposition is full of vagueness and perplexity; for it must still remain a question of intrinsic difficulty to say, what laws are, or are not applicable to their situation; and whether they are bound by the present state of things, or are at liberty to apply them in future by adoption, as the growth or interests of the colony may dictate.   The English rules of inheritance, and of protection from personal injuries, the rights secured by Magna Charta, and the remedial course in the administration of justice, are examples as clear perhaps as any, which can be stated, as presumptively adopted, or applicable.  And yet in the infancy of a colony some of these very rights, and privileges, and remedies, and rules, may be in fact inapplicable, or inconvenient, and impolitic.  It is not perhaps easy to settle, what parts of the English laws are, or are not in force in any such colony, until either by usage, or judicial determination, they have been recognized as of absolute force.

      76.    In respect to conquered and ceded countries, which have already laws of their own, a different rule prevails.  In such cases the crown has a right to abrogate the former laws, and institute new ones.  But until such new laws are promulgated, the old laws and customs of the country remain in full force, unless so far as they are contrary to our religion, or enact any thing, that is malum in se; for in all such cases the laws of the conquering or acquiring country shall prevail.  This qualification of the rule arises from the presumption, that the crown could never intend to sanction laws contrary to religion or sound morals.  But although the king has thus the power to change the laws of ceded and conquered countries, the power is not unlimited.  His legislation is subordinate to the authority of parliament.  He cannot make any new change contrary to fundamental principles; he cannot exempt an inhabitant from that particular dominion, as for instance from the laws of trade, or from the power of parliament; and he cannot give him privileges exclusive of other subjects.

      77.     Mr. Justice Blackstone, in his Commentaries, insists, that the American colonies are principally to be deemed conquered, or ceded countries.  His language is, "Our American Plantations are principally of this latter sort, [i.e. ceded or conquered countries,] being obtained in the last century either by right of conquest and driving out the natives, (with what natural justice I shall not at present inquire,) or by treaties.  And, therefore, the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct, though dependent dominions."

      78.     The doctrine of Mr. Justice Blackstone, may well admit of serious doubt upon general principles.  But it is manifestly erroneous, so far as it is applied to the colonies and plantations composing our Union.  In the charters, under which all these colonies were settled, with a single exception, there is, an express declaration, that all subjects and their children inhabiting therein shall be deemed natural-born subjects, and shall enjoy all the privileges and immunities thereof; and that the laws of England, so far as they are applicable, shall be in force there; and no laws shall be made, which are repugnant to, but as near as may be conveniently, shall conform to the laws of England.  Now this declaration, even if the crown previously possessed a right to establish what laws it pleased over the territory, as a conquest from the natives, being a fundamental rule of the original settlement of the colonies, and before the emigrations thither, was conclusive, and could not afterwards be abrogated by the crown.  It was an irrevocable annexation of the colonies to the mother country, as dependencies governed by the same laws, and entitled to the same rights.

      79.    And so has been the uniform doctrine in America ever since the settlement of the colonies.  The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation.  The whole structure of our present jurisprudence stands upon the original foundations of the common law.

      80.    We thus see in a very clear light the mode, in which the common law was first introduced into the colonies; as well as the true reason of the exceptions to it to be found in our colonial usages and laws.  It was not introduced, as of original and universal obligation in its utmost latitude; but the limitations contained in the bosom of the common law itself, and indeed constituting a part of the law of nations, were affirmatively settled and recognized in the respective charters of settlement.  Thus limited and defined, it has become the guardian of our political and civil rights; it has protected our infant liberties; it has watched over our maturer growth; it has expanded with our wants; it has nurtured that spirit of independence, which checked the first approaches of arbitrary power; it has enabled us to triumph in the midst of difficulties and dangers threatening our political existence; and by the goodness of God, we are now enjoying, under its bold and manly principles, the blessings of a free, independent, and united government.


CHAPTER XVII.

GENERAL REVIEW OF THE COLONIES.

      81.    In respect to their interior polity, the colonies have been very properly divided by Mr. Justice Blackstone into three sorts; viz. Provincial, Proprietary, and Charter Governments.  First, Provincial Establishments. The constitutions of these depended on the respective commissions issued by the crown to the governors, and the instructions, which usually accompanied those commissions.  These commissions were usually in one form, appointing a governor as the king's representative or deputy, who was to be governed by the royal instructions, and styling him Captain General and Governor-in-Chief over the Province, and Chancellor, Vice-Admiral, and Ordinary of the same.  The crown also appointed a council, who, besides their legislative authority, were to assist the governor in the discharge of his official duties; and power was given him to suspend them from office, and, in case of vacancies, to appoint others, until the pleasure of the crown should be known.  The commissions also contained authority to convene a general assembly of representatives of the freeholders and planters; and under this authority provincial assemblies, composed of the governor, the council, and the representatives, were constituted; (the council being a separate branch or upper house, and the governor having a negative upon all their proceedings, and also the right of proroguing and dissolving them;) which assemblies had the power of making local laws and ordinances, not repugnant to the laws of England, but as near as may be agreeable thereto, subject to the ratification and disapproval of the crown.  The governors also had power, with advice of council, to establish courts, and to appoint judges and other magistrates, and officers for the province; to pardon offences, and to remit fines and forfeitures; to collate to churches and benefices; to levy military forces for defence; and to execute martial law in time of invasion, war, and rebellion.  Appeals lay to the king in council from the decisions of the highest courts of judicature of the province, as indeed they did from all others of the colonies.  Under this form of government the provinces of New-Hampshire, New-York, New-Jersey, Virginia, the Carolinas, and Georgia, were governed (as we have seen) for a long period, and some of them from an early period after their settlement.

      82.    Secondly, Proprietary Governments.  These (as we have seen) were granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior royalties, and subordinate powers of legislation, which formerly belonged to the owners of counties palatine.  Yet still there were these express conditions, that the ends, for which the grant was made, should be substantially pursued; and that nothing should be done or attempted, which might derogate from the sovereignty of the mother country.  In the proprietary government the governors were appointed by the proprietaries, and legislative assemblies were assembled under their authority; and indeed all the usual prerogatives were exercised, which in provincial governments belonged to the crown.  Three only existed at the period of the American Revolution; viz. the proprietary governments of Maryland, Pennsylvania, and Delaware.  The former had this peculiarity in its charter, that its laws were not subject to the supervision and control of the crown; whereas in both the latter such a supervision and control were expressly or impliedly provided for.

      83.    Thirdly, Charter Governments.  Mr. Justice Blackstone describes them, (1 Comm. 108,) as "in the nature of civil corporations with the power of making by-laws for their own internal regulation, not contrary to the laws of England; and with such rights and authorities as are especially given them in their several charters of incorporation.   They have a governor named by the king, (or, in some proprietary colonies, by the proprietor,) who is his representative or deputy.  They have courts of justice of their own, from whose decisions an appeal lies to the king and council here in England.   Their general assemblies, which are their house of commons, together with their council of state, being their upper house, with the concurrence of the king, or his representative the governor, make laws suited to their own emergencies."  This is by no means a just or accurate description of the charter governments.  They could not be justly considered, as mere civil corporations of the realm, empowered to pass by-laws; but rather as great political establishments or colonies, possessing the general powers of government, and rights of sovereignty, dependent, indeed, and subject to the realm of England; but still possessing within their own territorial limits the general powers of legislation and taxation.  The only charter governments existing at the period of the American Revolution were those of Massachusetts, Rhode-Island, and Connecticut.  The first charter of Massachusetts might be open to the objection, that it provided only for a civil corporation within the realm, and did not justify the assumption of the extensive executive, legislative, and judicial powers, which were afterwards exercised upon the removal of that charter to America.  And a similar objection might be urged against the charter of the Plymouth colony.  But the charter of William and Mary, in 1691, was obviously upon a broader foundation, and was in the strictest sense a charter for general political government, a constitution for a state, with sovereign powers and prerogatives, and not for a mere municipality.  By this last charter the organization of the different departments of the government was, in some respects, similar to that in the provincial governments; the governor was appointed by the crown; the council annually chosen by the General Assembly; and the House of Representatives by the people.  But in Connecticut and Rhode-Island the charter governments were organized altogether upon popular and democratical principles; the governor, council, and assembly being annually chosen by the freemen of the colony, and all other officers appointed by their authority.  By the statutes of 7 & 8 William 3, (ch. 22, 6,) it was indeed required, that all governors appointed in charter and proprietary governments should be approved of by the crown, before entering upon the duties of their office; but this statute was, if at all, ill observed, and seems to have produced no essential change in the colonial policy.

      84.    The circumstances, in which the colonies were generally agreed, notwithstanding the diversities of their organization into provincial, proprietary, and charter governments, were the following.

      85.    (1.)  They enjoyed the rights and privileges of British born subjects; and the benefit of the common laws of England; and all their laws were required to be not repugnant unto, but, as near as might be, agreeable to the laws and statutes of England.  This, as we have seen, was a limitation upon the legislative power contained in an express clause of all the charters; and could not be transcended without a clear breach of their fundamental conditions.  A very liberal exposition of this clause seems, however, always to have prevailed, and to have been acquiesced in, if not adopted by the crown.  Practically speaking, it seems to have been left to the judicial tribunals in the colonies to ascertain, what part of the common law was applicable to the situation of the colonies; and of course, from a difference of interpretation, the common law, as actually administered, was not in any two of the colonies exactly the same.  The general foundation of the local jurisprudence was confessedly composed of the same materials; but in the actual superstructure they were variously combined, and modified, so as to present neither a general symmetry of design, nor an unity of execution.

      86.    In regard to the legislative power, there was a still greater latitude allowed; for notwithstanding the cautious reference in the charters to the laws of England, the assemblies actually exercised the authority to abrogate every part of the common law, except that, which united the colonies to the parent state by the general ties of allegiance and dependency; and every part of the statute law, except those acts of Parliament, which expressly prescribed rules for the colonies, and necessarily bound them, as integral parts of the empire, in a general system, formed for all, and for the interest of all.  To guard this superintending authority with more effect, it was enacted by Parliament in 7 & 8 William 3, (ch. 22,) "that all laws, by-laws, usages, and customs, which should be in practice in any of the plantations, repugnant to any law made, or to be made in this kingdom relative to the said plantations, shall be utterly void and of none effect."

      87.    It was under the consciousness of the full possession of the rights, liberties, and immunities of British subjects, that the colonists in almost all the early legislation of their respective assemblies insisted upon a declaratory act, acknowledging and confirming them.  And for the most part they thus succeed in obtaining a real and effective magna charta of their liberties.  The trial by jury in all cases, civil and criminal, was as firmly, and as universally established in the colonies, as in the mother country.

      88.    (2.)  In all the colonies local legislatures were established, one branch of which consisted of representatives of the people freely chosen, to represent and defend their interests, and possessing a negative upon all laws.  We have seen, that in the original structure of the charters of the early colonies, no provision was made for such a legislative body.   But accustomed as the colonists had been to possess the rights and privileges of Englishmen, and valuing as they did, above all others, the right of representation in Parliament, as the only real security for their political and civil liberties, it was easy to foresee, that they would not long endure the exercise of any arbitrary power; and that they would insist upon some share in framing the laws, by which they were to be governed.   We find accordingly, that at an early period [1619] a house of burgesses was forced upon the then proprietors of Virginia.  In Massachusetts, Connecticut, New-Hampshire, and Rhode-Island, the same course was pursued.  And Mr. Hutchinson has correctly observed, that all the colonies before the reign of Charles the Second, (Maryland alone excepted, whose charter contained an express provision on the subject,) settled a model of government for themselves, in which the people had a voice, and representation in framing the laws, and in assenting to burthens to be imposed upon themselves.  After the restoration, there was no instance of a colony without a representation of the people, nor any attempt to deprive the colonies of this privilege, except during the brief and arbitrary reign of King James the Second.

      89.    (5.)  All the colonies considered themselves, not as parcel of the realm of Great Britain, but as dependencies of the British crown, and owing allegiance thereto, the king being their supreme and sovereign lord.  In virtue of its general superintendency the crown constantly claimed, and exercised the right of entertaining appeals from the courts of the last resort in the colonies; and these appeals were heard and finally adjudged by the king in council.  This right of appeal was secured by express reservation in most of the colonial charters.  It was expressly provided for by an early provincial law in New-Hampshire, when the matter in difference exceeded the true value or sum of 300 sterling.  So, a like colonial law of Rhode-Island was enacted by its local legislature in 1719.  It was treated by the crown, as an inherent right of the subject, independent of any such reservation.  And so in divers cases it was held by the courts of England.  The reasons given for the opinion, that writs of error [and appeals] lie to all the dominions belonging to England upon the ultimate judgments given there, are, (1.) That, otherwise, the law appointed, or permitted to such inferior dominion might be considerably changed without the assent of the superior dominion; (2.) Judgments might be given to the disadvantage or lessening of the superiority, or to make the superiority of the king only, and not of the crown of England; and (3.) That the practice has been accordingly.

      90.    (6.)  Though the colonies had a common origin, and owed a common allegiance, and the inhabitants of each were British subjects, they had no direct political connexion with each other.   Each was independent of all the others; each, in a limited sense, was sovereign within its own territory.  There was neither alliance, nor confederacy between them.   The assembly of one province could not make laws for another; nor confer privileges, which were to be enjoyed or exercised in another, farther than they could be in any independent foreign state.  As colonies, they were also excluded from all connexion with foreign states.  They were known only as dependencies; and they followed the fate of the parent country both in peace and war, without having assigned to them, in the intercourse or diplomacy of nations, any distinct or independent existence.   They did not possess the power of forming any league or treaty among themselves, which should acquire an obligatory force without the assent of the parent state.  And though their mutual wants and necessities often induced them to associate for common purposes of defence, these confederacies were of a casual and temporary nature, and were allowed as an indulgence, rather than as a right.  They made several efforts to procure the establishment of some general superintending government over them all; but their own differences of opinion, as well as the jealousy of the crown, made these efforts abortive.  These efforts, however, prepared their minds for the gradual reconciliation of their local interests, and for the gradual developement of the principles, upon which a union ought to rest, rather than brought on an immediate sense of the necessity, or the blessings of such a general government.

      91.    But although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other.  On the contrary, they were fellow subjects, and for many purposes one people.  Every colonist had a right to inhabit, if he pleased, in any other colony; and, as a British subject, he was capable of inheriting lands by descent in every other colony.  The commercial intercourse of the colonies, too, was regulated by the general laws of the British empire; and could not be restrained, or obstructed by colonial legislation.  The remarks of Mr. Chief Justice Jay on this subject are equally just and striking.  "All the people of this country were then subjects of the king of Great Britain, and owed allegiance to him; and all the civil authority then existing, or exercised here, flowed from the head of the British empire.   They were, in a strict sense, fellow subjects, and in a variety of respects one people.  When the Revolution commenced, the patriots did not assert, that only the same affinity and social connexion subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connexion, which result from the mere circumstance of being governed by the same prince."  Different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.

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BOOK III.

THE CONSTITUTION OF THE UNITED STATES.

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CHAPTER I.

ORIGIN AND ADOPTION OF THE CONSTITUTION.

      131.    In this state of things, commissioners were appointed by the legislatures of Virginia and Maryland early in 1785, to form a compact relative to the navigation of the rivers Potomac and Pocomoke, and the Chesapeake Bay.  The commissioners having met in March, in that year, felt the want of more enlarged powers, and particularly of powers to provide for a local naval force, and a tariff of duties upon imports.  Upon receiving their recommendation, the legislature of Virginia passed a resolution for laying the subject of a tariff before all the states composing the Union.  Soon afterwards, in January, 1786, the legislature adopted another resolution, appointing commissioners, "who were to meet such, as might be appointed by the other states in the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the states; to consider how far a uniform system in their commercial relations may be necessary to their common interest, and their permanent harmony; and to report to the several states such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in congress assembled to provide for the same."

      132.    These resolutions were communicated to the states, and a convention of commissioners from five states only, viz. New-York, New-Jersey, Pennsylvania, Delaware, and Virginia, met at Annapolis, in September, 1786.  After discussing the subject, they deemed more ample powers necessary, and as well from this consideration, as because a small number only of the states was represented, they agreed to come to no decision, but to frame a report to be laid before the several states, as well as before congress.  In this report they recommended the appointment of commissioners from all the states, "to meet at Philadelphia, on the second Monday of May, then next, to take into consideration the situation of the United States; to devise such further provisions, as shall appear to them necessary, to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in congress assembled, as when agreed to by them, and afterwards confirmed by the legislature of every state, will effectually provide for the same."

      133.    On receiving this report, the legislature of Virginia passed an act for the appointment of delegates to meet such, as might be appointed by other states, at Philadelphia.  The report was also received in congress.  But no step was taken, until the legislature of New-York instructed its delegation in congress to move a resolution, recommending to the several states to appoint deputies to meet in convention for the purpose of revising and proposing amendments to the federal constitution.  On the 21st of February, 1787, a resolution was accordingly moved and carried in congress, recommending a convention to meet in Philadelphia, on the second Monday of May ensuing, "for the purpose of revising the articles of confederation, and reporting to congress, and the several legislatures, such alterations and provisions therein, as shall, when agreed to in congress, and confirmed by the states, render the federal constitution adequate to the exigencies of government, and the preservation of the Union."  The alarming insurrection then existing in Massachusetts, without doubt, had no small share in producing this result.  The report of congress, on that subject, at once demonstrates their fears, and their political weakness.

      134.    At the time and place appointed, the representatives of twelve states assembled.  Rhode-Island alone declined to appoint any on this momentous occasion.  After very protracted deliberations, the convention finally adopted the plan of the present constitution, on the 17th of September, 1787; and by a contemporaneous resolution, directed it to be "laid before the United States in congress assembled," and declared their opinion, "that it should afterwards be submitted to a convention of delegates chosen in each state by the people thereof, under a recommendation of its legislature, for their assent and ratification;" and that each convention, assenting to and ratifying the same, should give notice thereof to congress.  The convention by a further resolution declared their opinion, that as soon as nine states had ratified the constitution, congress should fix a day, on which electors should be appointed by the states, which should have ratified the same, and a day, on which the electors should assemble and vote for the president, and the time and place of commencing proceedings under the constitution; and that after such publication, the electors should be appointed, and the senators and representatives elected.  The same resolution contained further recommendations for the purpose of carrying the constitution into effect.

      135.    Congress, having received the report of the convention, on the 28th of September, 1787, unanimously resolved, "that the said report, with the resolutions and letter accompanying the same, be transmitted to the several legislatures in order to be submitted to a convention of delegates chosen in each state by the people thereof, in conformity to the resolves of the convention, made and provided in that case."

      136.    Conventions in the various states, which had been represented in the general convention, were accordingly called by their respective legislatures; and the constitution having been ratified by eleven out of the twelve states, congress, on the 13th day of September, 1788, passed a resolution appointing the first Wednesday in January following, for the choice of electors of president; the first Wednesday of February following, for the assembling of the electors to vote for a president; and the first Wednesday of March following, at the then seat of congress [New-York] the time and place for commencing proceedings under the constitution.  Electors were accordingly appointed in the several states, who met and gave their votes for a president; and the other elections for senators and representatives having been duly made, on Wednesday, the 4th of March, 1789, congress assembled under the new constitution, and commenced proceedings under it.  A quorum of both houses, however, did not assemble until the 6th of April, when the votes for president being counted, it was found that George Washington was unanimously elected president, and John Adams was elected vice-president.  On the 30th of April, president Washington was sworn into office, and the government then went into full operation in all its departments.

      137.    North-Carolina had not, as yet, ratified the constitution.  The first convention called in that state, in August, 1788, refused to ratify it without some previous amendments, and a declaration of rights.  In a second convention, however, called in November, 1789, this state adopted the constitution.  The state of Rhode-Island had declined to call a convention; but finally, by a convention held in May, 1790, its assent was obtained; and thus all the thirteen original states became parties to the new government.

      138.    Thus was achieved another, and still more glorious triumph in the cause of national liberty, than even that, which separated us from the mother country.  By it we fondly trust, that our republican institutions will grow up, and be nurtured into more mature strength and vigour; our independence be secured against foreign usurpation and aggression; our domestic blessings be widely diffused, and generally felt; and our union, as a people, be perpetuated, as our own truest glory and support, and as a proud example of a wise and beneficent government, entitled to the respect, if not to the admiration of mankind.

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CHAPTER XXXVIII.

JUDICIARY--ORGANIZATION AND POWERS.

      817.    The order of the subject next conducts us to the consideration of the third article of the constitution, which embraces the organization and powers of the judicial department.

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      850.    The second section of the third article contains an exposition of the jurisdiction appertaining to the judicial power of the national government.  The first clause is as follows: "The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects."

      851.    And first, the judicial power extends to all cases in law and equity, arising under the constitution, the laws, and the treaties of the United States.  And by cases in this clause we are to understand criminal, as well as civil cases.

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    855.    It is observable, that the language is, that "the judicial power shall extend to all cases in law and equity," arising under the constitution, laws, and treaties of the United States.  What is to be understood by "cases in law and equity," in this clause?  Plainly, cases at the common law, as contradistinguished from cases in equity, according to the known distinction in the jurisprudence of England, which our ancestors brought with them upon their emigration, and with which all the American states were familiarly acquainted.  Here, then, at least, the constitution of the United States appeals to, and adopts, the common law to the extent of making it a rule in the pursuit of remedial justice in the courts of the Union.  If the remedy must be in law, or in equity, according to the course of proceedings at the common law, in cases arising under the constitution, laws, and treaties, of the United States, it would seem irresistibly to follow, that the principles of decision, by which these remedies must be administered, must be derived from the same source.  Hitherto, such has been the uniform interpretation and mode of administering justice in the courts of the United States in this class of civil cases.


For further reading:

Justice Joseph Story on Church and State and the Bill of Rights

Samuel West, [On Natural Law] (1776)


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