direct sanction, which consists in this, that when a violation is judicially ascertained, the legal consequences will be enforced by the whole power of the community. Legal sanctions, however, are of two kinds, civil and penal. When the injury which would result from the violation of a law, is such that it can be redressed by a mere compensation or restitution to the party injured, it is deemed sufficient to compel the aggressor to render this kind of satisfaction. And this is the case with respect to a large proportion of all the injuries, whether to the person or to property, which take place in society. Such injuries are denominated civil; and the sanction of the laws made to prevent or redress them, consists in the pledge of the public faith, that if the injured party take the proper steps to obtain redress, it will be enforced by the public arm. But there are other injuries, both to the person and to property, of so atrocious a character, that either they do not admit of any thing like compensation, or, for other reasons, the welfare of society requires a more efficient sanction, in order to prevent them. Such injuries are denominated crimes, offences, or misdemeanors. And to guard against them, in addition to the enforcement of restitution, where the case admits of it, the laws provide a penalty or punishment, in the case of transgression; which penalty or punishment is proportioned, not so much to the actual injury sustained in each particular case, as to the necessity of preventing a repetition of the act. Such, then, are the civil and penal sanctions which give efficacy to municipal laws. By entering into the social compact, the citizen has renounced the right of taking redress for injuries into his own hands; and in return for this, society has given him its pledge to redress them for him. Instead, therefore, of relying upon his own individual strength, as in a state of nature, every member of society may command, if necessary, the whole strength of that society to prevent or redress his wrongs.

For the sake of simplicity, I have presented this outline of political organization hypothetically; but I have, in fact, described the precise system under which it is our happiness to live; and I trust that this method of exhibiting it, while it traces government in general up to its elementary principles, will, at the same time, have the effect of demonstrating the entire conformity of our government to the principles of enlightened reason, as applied to the free nature of man. We did not, indeed, pass through the exact gradations I have supposed; and, probably, no nation has. But the consummation of our system is precisely such as I have endeavored to sketch; this will be abundantly proved in the sequel. In the mean time, it is sufficient to say, that when the British colonies in America declared their independence, they may be considered as returning for a moment to that state of nature to which I have referred. The people of each colony then established by general consent an independent State government; and, afterwards, the people of all the States became united, by like consent, under one federal government: so that, at this moment, the

United States exhibit a complete picture of that political organization of which I have only traced a very general and imperfect outline.

LECTURE III.

HISTORICAL SUMMARY.

§ 10. Title of Great Britain. (a) In the preceding lecture, I presented a hypothetical outline of the organization of civil society. I shall now offer a brief historical outline of the actual organization of our American society. Prior to the year 1492, this entire continent was in the exclusive possession of an uncivilized race of men called Indians or Aborigines, who had occupied it from time immemorial. Had the character of their occupancy_been the same as that of civilized men, it is obvious that the Europeans could only have obtained their title by purchase or conquest; (b) since the right of discovery can manifestly attach only to unoccupied territory. But the occupancy of the Indians, who subsisted chiefly by hunting, was considered, by the various discovering nations, to be of too vague and undefined a character, to confer an exclusive right to the vast regions over which they habitually roamed. The civilians of that day maintained the doctrine whether correctly or not, I shall not stop to inquire that it never could have been the design of the Creator, that a few thousand savages should monopolize for hunting grounds, an extent of territory, which, under the cultivation of civilized men, might be made to support perhaps ten times as many millions; and, accordingly, the European nations founded their respective claims. upon the right of discovery. On this ground, the greater part of what is now the territory of the United States, fell to the share of

(a) See the tenth lecture of Kent; the first volume of Story's Commentaries on the Constitution; Marshall's Life of Washington; Bancroft's History of the United States; Pitkin's History of the United States; Curtis's History of the Constitution.

The American doctrine on the subject of Indian title is briefly this: The Indians have no fee in the lands they occupy. The fee is in the government. They cannot of course aliene them either to nations or individuals, the exclusive right of preemption being in the government. Yet they have a qualified right of occupancy which can only be extinguished by treaty, and upon fair compensation; until which they are entitled to be protected in their possession. See the third article of the Ordinance of 1787; Vattel, chap. 1, § 81, 209; 3 Kent, Com. 386; 1 Story, Const. § 7, 153; Johnston v. McIntosh, 8 Wheat. 543; Jackson v. Hudson, 3 Johns. 375, Cherokees v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; Clark v. Smith, 13 Pet. 195; Chaffee v. Garrett, 6 Ohio, 421. It will thus be seen that all valid individual title must be traced to some one of the governments for whom the discoveries were made, or who claim title under them. See 3 Kent, Com. 377; Jackson v. Ingraham, 4 Johns. 16; Jackson v. Waters, 12 Johns. 365.

(b) There is an interesting discussion of the rights gained by a nation by conquest in the United States v. Repentigny, 5 Wallace, 211.

Great Britain by virtue of the expedition of John Cabot, who, in 1495, under the auspices of Henry the Seventh, sailed along the eastern coast, from the 56th to the 38th degree of north latitude; and thereupon claimed for his sovereign the whole vast region of the Gulf of Mexico to the Northern Ocean, and from the Atlantic to the Pacific. It turned out, that France and Spain had superior titles to some portions of this domain; but for the rest the claim. of Great Britain was acquiesced in. No successful attempt, however, was made to establish colonies here, until 1606, when James the First granted a charter to certain of his subjects, which laid the foundation of the colonies of Virginia and Massachusetts. From this period other colonies were successively established along the whole eastern coast; the last being that of Georgia, in 1732.

They

§ 11. The Revolution. The colonies were now thirteen in number; and though distinguished by their original organization, into provincial, proprietary, and charter governments, they did not differ very essentially from each other, in their relations to the mother country. (a) As British subjects, they all brought from the mother country the laws and institutions adapted to their condition. They all had local legislatures also; but being dependent colonies, and not independent States, they could make no laws repugnant to those of Parliament. The exact limits, however, of colonial dependency, were never very precisely ascertained; and claims to supremacy asserted beyond the Atlantic were often rejected here. At length Parliament, by way of preamble to one of its acts, asserted the unqualified right to bind the colonies in all cases whatsoever. But the colonies, while they admitted the general authority of Parliament, most resolutely denied it in the case of taxation. held it to be a fundamental principle of British law that taxation and representation go together; and, since they were not represented in Parliament, they could not be taxed by Parliament. And the controversy which began upon this question, ended in the revolution which established our independence. But in order that three millions of people might resist, with any hope of success, a power upon whose dominions the sun never sets, it was necessary that they should act in perfect unison. The idea of co-operation had already been rendered familiar to the colonies by the New England alliance, in 1643, for protection against the Indians; by a convention at Albany, in 1754, to discuss a plan of union against the French and Indians; and by a congress of nine colonies at New York in 1765, to declare the rights of the colonies with reference to the mother country; but as yet there was nothing like a permanent and efficient union. When, however, the determination to resist was unalterably taken, the first step was to form a revolutionary league. Accordingly, in 1774, the people of all the colonies.

(a) For the distinguishing features of these several forms of Colonial Government see 1 Story, Const. § 1-197.

elected delegates to represent them in a general Congress, (a) which, from its universality, was dignified with the name of Contimental and which was the commencement of that glorious Union which we now enjoy. Passing over the earlier acts of this Continental Congress, the mind hastens at once to that sublime manifesto of the 4th of July, 1776, which fixes the birthday of our national existence. Upon the merits of the Declaration of Independence, (b) the highest terms of panegyric might be exhausted without extravagance; but this is not the proper occasion. The effect of declaring the "United Colonies" to be "free and independent States," was to make them so. For although it was not until the treaty of peace ratified on the 15th of April, 1783, that Great Britain acknowledged the thirteen States to be free, sovereign, and independent;" yet we universally regard the declaration and not the recognition of our independence as our true national era. From that moment, in the language of that instrument, "all political connection" between the colonies and the mother country was "totally dissolved;" and from dependent colonies, they rose at once to the rank of independent States. But how far was this independence to extend? Were the States to be independent of each other, as well as of Great Britain? This was now an open question; for as yet there was no formal instrument of union. The bond of common danger would hold them together until the revolution should be consummated; but then it would be at their option to remain united or not. In a word, by dissolving their connection with Great Britain, they so far placed themselves in a state of nature, that they could enter into whatsoever kind of social compact

(a) For an account of the organization and doings of this Congress, see 1 Story, Const. § 198-206; 1 Pitkin's Hist. U. S. chap. 8 and 9, pages 282-383. It was called on the recommendation of Massachusetts, and assembled at Philadelphia on the 5th of September, 1774. All the colonies were represented except Georgia, which came in the next year. They sat with closed doors, and each colony had one vote. One of their first acts was to adopt a declaration of rights. 1 Pitkin, 285. The members also unanimously signed an agreement for non-intercourse, to which they pledged themselves and their constituents, "under the sacred ties of virtue, honor, and love of their country"-id. 289. They then prepared an address to the people of Great Britain -id. 291; another to the King-id. 293; and another to their constituents — id. 297. It was of this Congress, and of these their doings, that Lord Chatham said: "For genuine sagacity, for singular moderation, for solid wisdom, manly spirit, sublime sentiments, and simplicity of language, for every thing respectable and honorable, the Congress of Philadelphia shine unrivalled. This wise people speak out. They do not hold the language of slaves; they tell you what they mean. They do not ask you to repeal your laws as a favor; they claim it as a right." Id. 309.

(8) On the 10th of May, 1776, Congress had adopted a significant resolution reported by Mr. Adams, recommending to all the colonies, which had not already established governments for themselves, to do so without delay. The resolution for independence was moved by Mr. Lee, of Virginia, on the 7th of June. The committee appointed to prepare the Declaration, consisted of Messrs. Jefferson, Adams, Franklin, Sherman, and Livingston. It was drawn up by Mr. Jefferson, approved by the committee, and reported to Congress on the 28th of June. For a brief sketch of the debates by Mr. Jefferson, see Mad. Pap. 9; and for the original draft of the Decla ration, with the alterations made by Congress, see id. 19. For a further account see 1 Story, Const. § 205; 1 Pitkin's Hist. U. S. chap. 9, pages 360-370. The most important alteration made by Congress, was to strike out the entire clause reprobating the slave-trade. Mad. Pap. 24.

should be most agreeable. (a) But, fortunately, this momentous question was settled before the common danger was removed. For on the 15th of November, 1777, the Continental Congress, after long debate, agreed upon the Articles of Confederation, (b) and recommended them to the States for ratification. So great, however, was the opposition, that the ratification was not effected until the 1st of March, 1781. This formed the second stage in the progress of our Union. And without attempting a particular analysis of these "Articles," I will refer to some of their leading characteristics. The union thereby created, though declared to be perpetual, was professedly nothing but a league, having for its object, "the common defence and general welfare." In Congress, the States were represented equally, each having one vote. The subjects of jurisdiction were enumerated, and the determinations of Congress were declared to be binding on the States. There was, however, no regular judiciary, and nothing resembling an executive, except a "committee of the States," to act during the recess of Congress. The radical defect, therefore, was the total want of power to execute what Congress might direct. The acts of Congress were not laws, as we understand the term; but merely ordinances or requisitions operating upon the States; in their collective capacities, and not upon individuals. Obedience depended solely upon the good faith of the States, and was often refused with impunity. The consequence was, that the moment peace took off the pressure of a common danger, the Union was found to be too feeble to answer its design; and every day increased the prospect of a fatal dismemberment.

(a) I am aware that this has always been a disputed point. There certainly was a national government de facto from the first meeting of the Continental Congress. And it is equally true that the declaration of independence was not the act of each colony separately, but of all united. Still, I think it clear that nothing more than a temporary union, dissoluble at the option of the States, can be considered as existing, prior to the Articles of Confederation. But see 1 Story, Const. § 207-217.

(b) A plan of confederation had been submitted by Dr. Franklin, on the 21st of July, 1775, but was not acted upon. On the 11th of June, 1776, during the discussion of the question of independence, a committee of one from each State was appointed to prepare a plan. They reported, through Mr. Dickinson, on the 12th of July, 1776. Their plan was debated and amended from time to time, until the 15th of November, 1777, when it was adopted by Congress. Mad. Pap. 688-9; 1 Story, Const. § 218-228; 2 Pitkin's Hist. U. S. chap. 11, pages 9-19. Of the debates on these Articles, we have no full report. Mr. Jefferson has preserved a sketch of the debate on the quotas of contribution among the States, and also on the equality of votes in Congress. Mad. Pap. 27-39. The Articles were submitted to the legislatures of the States for approval, in which case they were to authorize their delegates in Congress to ratify them by signature. Much opposition was made in all the States, and the ratification, commenced on the 9th of July, 1778, was not completed until the 1st of March, 1781. The three last ratifications were, by New Jersey on the 25th of November, 1778, by Delaware on the 22d of February, 1779, and by Maryland on the first of March, 1781. The principal reason for this long delay was the claim made by some of the States to the vacant Western lands. And it is probable that Maryland never would have come into the Union, if this obstacle had not been removed by the relinquishment of these claims. 1 Story, Const. § 226-228; 2 Pitkin's Hist. U. S. chap. 11, pages 19-36. For a very clear analysis of these Articles, see 1 Story, Const. § 229-242. For a full exposition of the defects of this system, and a vivid description of the state of anarchy and despondency to which the country was reduced by it, see 1 Story, Const. § 243-271; 2 Marshall's Washington, chap. 4, pages 94-125; 2 Pitkin's Hist. U. S. chap. 16, pages 214-223.