A Brief Enquiry into the Nature and Character of our Federal Government/I

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A Brief Enquiry into the Nature and Character of our Federal Government by Abel P. Upshur
Chapter I
Chapter breaks are not found in the original; they were added in an 1868 edition. References to "our author" or "the author" refer to Joseph Story, the author of the work being critiqued by Upshur.

It came within the range of Judge Story's duties, as Dane Professor of Law in Harvard University, to expound and illustrate the Constitution of the United States. His lectures upon that subject have been abridged by himself, and published in a separate volume. Although the work is given to the public as an abridgment, it is nevertheless, as it professes to be, "a full analysis and exposition of the constitution of government of the United States;" and presents, in the opinion of the author himself, the "leading doctrines" of the original, "so far as they are necessary to a just understanding of the actual provisions of the Constitution." The author professes to have compiled it "for the use of colleges and high schools;" but as it contains all the important historical facts, and all the leading reasons upon which his own opinions have been based, and as it has been prepared with elaborate care in other respects, we may reasonably suppose, without impeaching his modesty, that he expected it to be received as a complete work. It is, indeed, quite as full as any such work needs to be, for any purpose, except, perhaps, the very first [ *6 ] *lessons to the student of constitutional law. The politician and the jurist may consult it, with a certainty of finding all the prominent topics of the subject fully discussed.

A work presenting a proper analysis and correct views of the Constitution of the United States has long been a desideratum with the public. It is true that the last fifteen years have not been unfruitful in commentaries upon that instrument; such commentaries, however, as have, for the most part met a deserved fate, in immediate and total oblivion. Most of them have served only to throw ridicule upon the subject which they professed to illustrate. A few have appeared, however, of a much higher order, and bearing the stamp of talent, learning, and research. Among these, the work before us, and the Commentaries of Chief Justice Kent, hold the first rank. Both of these works are, as it is natural they should be, strongly tinctured with the political opinions of their respective authors; and as there is a perfect concurrence between them in this respect, their joint authority can scarcely fail to exert a strong influence upon public opinion. It is much to be regretted that some one, among the many who differ from them in their views of the Constitution, and who possess all the requisite qualifications for the task, should not have thought it necessary to vindicate his own peculiar tenets, in a work equally elaborate, and presenting just claims to public attention. The authority of great names is of such imposing weight, that mere reason and argument can rarely counterpoise it in the public mind; and its preponderance is not easily overcome, except by adding like authority to the weight of reason and argument, in the opposing scale. I hope it is not yet too late for this suggestion to have its effect upon those to whom it is addressed.

The first commentary upon the Constitution, the Federalist, is decidedly the best, which has yet appeared. The writers of that book were actors in all the interesting scenes of the period, and two of them were members of the convention which formed the Constitution. Added to this, their extensive information, their commanding talents, and their experience in great public affairs, qualified them, in a peculiar degree, for the task which they undertook. Nevertheless, their great object was to recommend the Constitution to the people, at a time when it was very uncertain whether they would adopt it or not; and hence their work, although it contains a very full and philosophical analysis of the subject, comes to us as a mere argument in support of a favorite measure, and, for that reason, does not always command our entire confidence. Besides, the Constitution was then [ *7 ] *untried, and its true character, which is to be learned only from its practical operation, could only be conjectured. Much has been developed, in the actual practice of the government, which no politician of that day could either have foreseen or imagined. New questions have arisen, not then anticipated, and difficulties and embarrassments, wholly unforeseen, have sprung from new events in the relation of the States to one another, and to the general government. Hence the Federalist cannot be relied on, as full and safe authority in all cases. It is, indeed, matter of just surprise, and affording the strongest proof of the profound wisdom and far-seeing sagacity of the authors of that work, that their views of the Constitution have been so often justified in the course of its practical operation. Still, however, it must be admitted that the Federalist is defective in some important particulars, and deficient in many more. The Constitution is much better understood at this day than at the time of its adoption. This is not true of the great principles of civil and political liberty, which lie at the foundation of that instrument; but it is emphatically true of some of its provisions, which were considered at the time as comparatively unimportant, or so plain as not to be misunderstood, but which have been shown, by subsequent events, to be pregnant with the greatest difficulties, and to exert the most important influence upon the whole character of the government. Contemporary expositions of the Constitution, therefore, although they should be received as authority in some cases, and may enlighten our judgments in most others, cannot be regarded as safe guides, by the expounder of that instrument at this day. The subject demands our attention now as strongly as it did before the Federalist was written.

It is not surprising, therefore, that the work now under consideration should have been hailed with pleasure, and received with every favorable disposition. Judge Story fills a high station in the judiciary of the United States, and has acquired a character, for talents and learning, which ensures respect to whatever he may publish under his own name. His duty, as a judge of the supreme court, has demanded of him frequent investigations of the nicest questions of constitutional law; and his long service in that capacity has probably brought under his review every provision of that instrument, in regard to which any difference of opinion has prevailed. Assisted as he has been by the arguments of the ablest counsel, and by the joint deliberations of the other judges of the court, it would be indeed wonderful, if he should hazard his well-earned reputation as a jurist, upon any hasty or unweighed opinion, upon subjects so grave and [ *8 ] *important. He has also been an attentive observer of political events, and although by no means obtrusive in politics, has yet a political character, scarcely less distinguished than his character as a jurist. To all these claims to public attention and respect, may be added a reputation for laborious research, and for calm and temperate thinking. A work on the Constitution of the United States, emanating from such a source, cannot fail to exert a strong influence upon public opinion, and it is, therefore, peculiarly important that its real character should be understood. Whatever may be the cast of its political opinions, it can scarcely fail to contain many valuable truths, and much information which will be found useful to all classes of readers. And, so far as its political opinions are concerned, it is of the highest importance to guard the public mind against the influence which its errors, if errors they be, may borrow from the mere authority of the distinguished name under which they are advanced.

The plan of the work before us is very judicious. In order to a correct understanding of the Constitution, it is absolutely necessary to understand the situation of the States before it was adopted. The author, acting upon this idea, distributes his work into 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 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." This plan is at once comprehensive and analytic. It embraces every topic necessary to a full understanding of the subject, while, at the same time, it presents them in the natural order of investigation. It displays a perfect acquaintance with the true nature of the subject, and promises every result which the reader can desire. The first part relates to a subject of the greatest interest to every American, and well worthy the study of philosophical enquirers, all over the world. There is not, within the whole range of history, an event more important, with reference to its effects upon the world at large, than the settlement of the American colonies. It did not fall within the plan of our author to enquire very extensively, or very minutely, into the mere history of events which [ *9 ] *distinguished that extraordinary enterprise. So far as the first settlers may be regarded as actuated by avarice, by ambition, or by any other of the usual motives of the adventurer, their deeds belong to the province of the historian alone. We, however, must contemplate them in another and a higher character. A deep and solemn feeling of religion, and an attachment to, and an understanding of, the principles of civil liberty, far in advance of the age in which they lived, suggested to most of them the idea of seeking a new home and founding new institutions in the western world. To this spirit we are indebted for all that is free and liberal in our present political systems. It would be a work of very great interest, and altogether worthy of the political historian to trace the great principles of our institutions back to their sources. Their origin would probably be discovered at a period much more remote than is generally supposed. We should derive from such a review much light in the interpretation of those parts of our systems, as to which we have no precise rules in the language of our constitutions of government. It is to be regretted that Judge Story did not take this view of the subject. Although not strictly required by the plan of his work, it was, nevertheless, altogether consistent with it, and would have added much to its interest with the general reader. His sources of historical information were ample, and his habits and the character of his mind fitted him well for such an investigation, and for presenting the result in an analytic and philosophical form. He has chosen, however, to confine himself within much narrower limits. Yet, even within those limits, he has brought together a variety of historical facts of great interest, and has presented them in a condensed form, well calculated to make a lasting impression on the memory. The brief sketch which he has given of the settlement of the several colonies, and of the charters from which they derived their rights and powers as separate governments, contains much to enable us to understand fully the relation which they bore to one another and to the mother country. This is the true starting point in the investigation of those vexed questions of constitutional law which have so long divided political parties in the United States. It would seem almost impossible that any two opinions could exist upon the subject; and yet the historical facts, upon which alone all parties must rely, although well authenticated and comparatively recent, have not been understood by all men alike. Our author was well aware of the importance of settling this question at the threshold of his work. Many of the powers which have been claimed for the federal government, by the political party to which he [ *10 ] *belongs, depend upon a denial of that separate existence, and separate sovereignty and independence, which the opposing party has uniformly claimed for the States. It is, therefore, highly important to the correct settlement of this controversy, that we should ascertain the precise political condition of the several colonies prior to the revolution. This will enable us to determine how far our author has done justice to his subject, in the execution of the first part of his plan; and by tracing the colonies from their first establishment as such, through the various stages of their progress up to the adoption of the Federal Constitution, we shall be greatly aided in forming a correct opinion as to the true character of that instrument.