instrument. Add to these sources of light upon our political system, the essays and speeches of eminent statesmen contemporaneous with the adoption of the constitution and at subsequent periods; and the opinions of the judicial officers in the several States. The results of these various authorities and expositions have occasionally been collected in general treatises, as in Tucker's Blackstone, Rawle on the Constitution, and Kent's Commentaries. But these are all very compendious in plan; a full elaborate work was wanted, that should present the whole body of constitutional law rigidly digested and lucidly arranged. Such a work Mr. Justice Story has given to the public, and very opportunely, since we have most strangely, now at this late day, been unexpectedly thrown back to the very threshold to the agitation of the question whether we have, in fact, any constitution of government, or are entirely destitute of a supreme law; and which is, in effect, equivalent, whether we have any tribunal to interpret and apply, and an authority to enforce that law. These are the questions recently agitated. Some of the powers exercised by the government ever since its establishment, are strenuously denied to have been ever granted. In regard to those granted, rules of interpretation have been proposed, which would embarrass or defeat their operation.. A fierce contest is raging over the whole field of constitutional law, which will end, we will not doubt, in the firm establishment of those constructions which have hitherto been adopted in the practical administration, and in demonstrating still more clearly the admirable structure of our government. A work presenting the whole subject, to which every man can readily resort for all the learning that may help him to form his opinion, will, it is obvious, have a powerful influence upon these discussions, by enlightening the public mind and by fortifying public opinion against plausible sophisms and groundless exceptions.

A dry forbidding work, laborious to peruse, however learned it might be, would not meet the exigency; since only the most resolute and indefatigable would plod through it. The one before us is not liable, in the least degree, to this objection. The style is animated, free and flowing, in the usual manner of the author. The arrangement is methodical and clear. It is a fortunate of the author's plan to commence with the consti

part

tutional history of the period antecedent to the Revolution. By an outline of the political history of each of the colonies, and that of the Revolution, and the confederation, the reader is not only prepared to enter upon the history and exposition of the constitution with greater intelligence, and greater facility of apprehension, but his curiosity is excited and his interest in the subject kindled, for he has a lively sense of the difficulty and peril of the occasion at the dissolution of the confederation, and the magnitude of the work then to be accomplished, and he proceeds with earnest solicitude to the subsequent analysis and exposition. Having fresh in his mind all the difficulties to be overcome, he is desirous of learning, by a critical review of the whole subject, in what way they are surmounted; and at each step, as he advances, he is struck with new admiration of the profound, practical wisdom displayed in the structure of the government. Indeed any one capable of understanding the constitution, who does not admire and glory in it, is not worthy to live under it.

The work commences, as we have said, with a constitutional history of each of the thirteen colonies. A general view is then given of their resemblances and diversities, and of their political condition at the epoch of the Revolution. There were three kinds of colonial government, the provincial, proprietary, and chartered. The provincial colonies were governed according to the royal commissions and instructions to the governors and other magistrates, to which class belonged New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia. In the proprietary governments the colony was granted to individuals in the nature of feudatory principalities, with all the inferior royalties and subordinate powers of legislation which formerly belonged to counties palatine; of which class were Maryland, Pennsylvania, and Delaware. The chartered colonies were political establishments possessing the general powers of government, and rights of sovereignty, being dependent upon and subject to the realm of England, but still possessing within their own territorial limits the general powers of legislation and taxation; such were Massachusetts, Rhode Island, and Connecticut.

The political condition of all of them was similar in some respects. The inhabitants of all enjoyed the rights and privi

leges of British born subjects and the benefit of the common laws 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.

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 king

1 Com. Dig. Navigation, G. 1; Id. Ley. C.; 2 Wilson's Law Lect. 48, 49, 50, 51, 52.

21 Chalm. Annals, 677, 678, 687; 1 Tucker's Black. Comm. 384. 1 Vez. 444, 449; 2 Wilson's Law Lect. 49 to 54; Mass. State Papers, (Ed. 1818,) 375, 390, 391.

31 Chalmer's Annals, 139, 140, 684, 687, 671, 675; 1 Tucker's Black. Comm. 384, App.; 2 Wilson's Law Lect. 49, 50; 1 Doug. Summ. 213; 1 Pitk. Hist. 108; Mass. State Papers, 345, 346, 347, 351 to 364, 375, 390; Dummer's Defence, 1 American Tracts, 65, &c. 32

VOL. IX.-NO. XVIII.

dom relative to the said plantations, shall be utterly void and of none effect." 1

'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 succeeded 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.

3

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

1 Stokes's Colon. 27.

21 Pitk. Hist. 88, 89; 3 Hutch. Coll. 201, &c.; 1 Chalmer's Annals, 678; 2 Doug. Summ. 193.

3 1 Doug. Summ. 213 to 215.

4 Robertson's America, B. 9.

5 1 Tucker's Black. Comm. App. 386.

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.'

In the proprietary and charter governments, the right of the people to be governed by laws established by a local legislature, in which they were represented, was recognised as a fundamental principle of the compact. But in the provincial governments it was often a matter of debate, whether the people had a right to be represented in the legislature, or whether it was a privilege enjoyed by the favor and during the

11 Hutch. Hist. Mass. 93, note; 1 Doug. Summ. 213. — Mr. Hutchinson's remarks are entitled to something more than this brief notice, and a quotation is therefore made of the leading passage. "It is observable, that all the colonies before the reign of King Charles the Second, Maryland excepted, settled a model of government for themselves. Virginia had been many years distracted under the government of presidents and governors, with councils, in whose nomination or removal the people had no voice, until in the year 1620 a house of burgesses broke out in the colony; the king nor the grand council at home not having given any powers or directions for it. The governor and assistants of the Massachusetts at first intended to rule the people; and, as we have observed, obtained their consent for it, but this lasted two or three years only; and although there is no color for it in the charter, yet a house of deputies appeared suddenly, in 1634, to the surprise of the magistrates, and the disappointment of their schemes for power. Connecticut soon after followed the plan of the Massachusetts. New Haven, although the people had the highest reverence for their leaders, and for near thirty years in judicial proceedings submitted to the magistracy, (it must, however, be remembered, that it was annually elected,) without a jury; yet in matters of legislation the people, from the beginning, would have their share by their representatives. - New Hampshire combined together under the same form with Massachusetts. - Lord Say tempted the principal men of the Massachusetts, to make them and their heirs nobles and absolute governors of a new colony; but, under this plan, they could find no people to follow them. Barbadoes and the leeward islands, began in 1625, struggled under governors, and councils, and contending proprietors, for about twenty years. Numbers suffered death by the arbitrary sentences of courts martial, or other acts of violence, as one side, or the other happened to prevail. At length, in 1645, the first assembly was called, and no reason given but this, viz. That, by the grant to the Earl of Carlisle, the inhabitants were to enjoy all the liberties, privileges, and franchises of English subjects; and therefore, as it is also expressly mentioned in the grant, could not legally be bound, or charged by any act without their own consent. This grant, in 1627, was made by Charles the First, a prince not the most tender of the subjects' liberties. After the restoration, there is no instance of a colony settled without a representative of the people, nor any attempt to deprive the colonies of this privilege, except in the arbitrary reign of King James the Second."