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it is in England proper; and, wherever it exists, the correspondent right to own and inherit the soil attaches. The right to regulate cominercial intercourse among her colonies belongs, of course, to the parent country, unless she relinquishes it by some act of her own; and no such act is shown in the present case. On the contrary, although that right was resisted for a time by some of the American colonies, it was finally yielded, as our author himself informs us, by all those of New England; and I am not informed that it was denied by any other. Indeed, the supremacy of Parliament, in most matters of legislation which concerned the colonies, was generally-nay, universally admitted, up to the very eve of the revolution. It is true, the right to tax the colonies was denied, but this was upon a wholly different principle; it was the right of every British subject to be exempt from taxation, except by his own consent; and as the colonies were not, and, from their local situation, could not be, represented in parliament, the right of that body to tax them was denied, upon a fundamental principle of English liberty. But the right of the mother country to regulate commerce among her colonies is of a different character, and it never was denied to England by her American colonies, so long as a hope of reconciliation remained to them. In like manner, the facts relied on by Mr. Jay, that all the people of this country were then subjects of the King of Great Britain, and owed allegiance to him,' and that, all the civil authority then existing or exercised herein, flowed from the head of the British empire,' are but the usual incidents of colonial dependence, and are by no means peculiar to the case he was considering. They do, indeed, prove a unity between all the colonies and the mother country, and show that these, taken altogether, are, in the strictest sense of the terms, 'one people; but I am at a loss to perceive how they prove that two or more parts, or subdivisions, of the same empire, necessarily constitute 'one people. If this be true of the colonies, it is equally true of any two or more geographical sections of England proper; for every one of the reasons assigned, applies as strictly to this case, as to ihat of the colonies. Any two countries may be one people,' or 'a nation de facto,' if they can be made so by the facts that their people are subjects of the king of Great Britain, and owe "allegiance to him, and that “all the civil authority exercised therein, flows from the head of the British empire.'
And, so far as the rights of the mother country are concerned, they existed in the same form, and to the same extent, over every other colony of the empire. Did this make the people of all the colonies 'one people ?! If so, the people of Jamaica, the British East Indian possessions, and ihe Canadas, are, for the very same reason, 'one people' at this day.
• The general relation between colonies and the parent country is as well settled and understood as any other; and it is precisely the same in all cases, except where special consent and agreement may vary it. Whoever, therefore, would prove that any peculiar unity existed between the American colonies, is bound to show something in their characters, or some peculiarity in their condition, to exempt them from the general rule. Judge Story was 100 well acquainted with the state of the facts, to make
such attempt in the present case. The congress of the nine colonies, which assembled at New York, in October, 1765, declared that the colonists owe the same allegiance to the Crown of Great Britain that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain.' "That the colonists are entitled to all the inherent rights and liberties of his (the king's) natural-born subjects within the Kingdom of Great Britain. We have here an all-sufficient foundation of the right of the crown to regulate commerce among the colonies, and of the right of the colonists to inhabit and to inherit land in each and all the colonies. They were nothing more than the ordinary rights and liabilities of every British
subject; and, indeed, the most that the colonies ever_contended for, was an equality, in these respects, with the subjects born in England.
" The great effort of the author, throughout his entire work, is to establish the doctrine, that the constitution of the United States is a government of the people of the United States,' as contra-distinguished from the people of the several states; or, in other words, that it is a consolidated, and not a federative system. His construction of every contested federal power, depends mainly upon this distinction; and hence the necessity of establishing a oneness among the people of the several colonies, prior to the revolution.
"In order to constitute 'one people,' in a political sense, of the inhabitants of different countries, something more is necessary than that they should owe a cominon allegiance to a common sovereign. Neither is it sufficient that in some particulars they are bound alike, by laws which that sovereign may prescribe; nor does the question depend on geographical relations. The inhabitants of different islands may be one people, and those of contiguous countries may be, as we know they in fact are, different nations. By the term people, as here used, we do not mean merely a number of persons. We mean by it a political corporation, the members of which owe a common alle. giance to a common sovereignty, and do not owe any allegiance which is not common; who are bound by no laws except such as that sovereignty may prescribe; who owe to one another reciprocal obligations;, who possess common political interests; who are liable to common political duties; and who can exert no sovereign power except in the name of the whole. Any thing short of this would be an imperfect definition of that political corporation which we call a people.
" Tested by this definition, the people of the American colonies were, in no conceivable sense, one people. They owed, indeed, allegiance to the British king, as the head of each colonial government, and as forming a part thereof, but this allegiance was exclusive in each colony to its own government, and consequently to the king as the head thereof, and was not a common 'alle. giance of the people of all the colonies, to a common head.* These colonial governments were clothed with the sovereign power of making laws, and of enforcing obedience to them, from their own people. The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws. The colonies had no common legislature, no common treasury, no common military power, no common judicatory. The people of one colony were not liable to pay taxes to any other colony, nor to bear arms in its defence; they had no right to vote in its elections; no influence nor control in its municipal government, no interest in its municipal institutions. There was no prescribed form by which the colonies could act together, for any purpose whatever; they were not known as 'one people’ in any one function of government, although they were all, alike, dependencies of ihe British crown, yet, even in the action of the parent country in regard to them, they were recognised as separate and distinct. They were established at differelit times, and each under an authority from the crown which applied to itself alone. They were not even alike in their organization. Some were provincial, some were proprietary, and some charter governments. Each derivedi its form of government from the particular instrument establishing it, or from assumptions of power acquiesced in by the crown, without any connexion with, or relation to, any other. They stood upon the same footing, in every respect, with other British colonies, with nothing to distinguish their relation
* The resolutions of Virginia, in 1796, show that she considered herself merely as an appendage of the British Crown; that her legislature was alone authorized to tax her; and that she had a right to call on her king, who was also King of England, to protect her against the usurpations of the British parliament.
either to the parent country or to one another. The charter of any one of them might have been destroyed, without in any manner affecting the rest. In point of fact, the charters of nearly all of them were altered from time to time, and the whole character of their governments changed. These changes were made in each colony for itself alone, sometimes by its own action, sometimes by the power and authority of the crown; but never by the joint agency of any other colony, and never with reference to the wish or demands of any other colony. Thus they were separate and distinct in their creation, separate and distinct in the forms of their governments, separate and distinct in the modifications of their government, which were made from time to time, separate and distinct in political functions, in political rights, and in political duties.
“The provincial government of Virginia was the first established. The people of Virginia owed allegiance to the British king, as the head of their own local government. The authority of that government was confined within certain geographical limits known as Virginia, and all who lived within those limits were 'one people.' When the colony of Plymouth was subse. quently settled, were the people of that colony one with the people of Virginia? When, long afterwards, the proprietary government of Pennsylvania was established, were the followers of William Penn'one' with the people of Plymouth and Virginia ? If so, to which government was their allegiance due? Virginia had a government of her own, Pennsylvania a government of her own, and Massachusetts a government of her own. The people of Pennsylvania could not be equally bound by the laws of all three governments; because those laws might happen to conflict; they could not owe the duties of citizenship to all of them alike, because they might stand in hostile relations to one another. Either then the government of Virginia, which originally extended over the whole territory, continued to be supreme therein, (subject only to its dependence upon the British Crown,) or else its supremacy was yielded to the new government. Every one knows that this last was the case, that within the territory of the new government, the authority of that government alone prevailed. How then could the people of this new government of Pennsyl. vania be said to be one with the people of Virginia, when they were not citizens of Virginia, owed her no allegiance and no duty, and when their allegiance to another government might place them in the relation of enemies of Virginia?
"In further illustration of this point, let us suppose that some one of the colonies had refused to unite in the declaration of independence; what relation would it then have held to the others ? Not having disclaimed its allegiance to the British crown, it would still have continued to be a British colony, subject to the authority of the parent country in all respects as before. Could the other colonies have rightfully compelled it to unite with them in their revolutionary purposes, on the ground that it was part and parcel of the 'one people known as the people of the colonies? No such right was ever claimed or dreamed of, and it will scarcely be contended for now, in the face of the known history of ihe time. Such recusant colony would have stood precisely as did the Canadas, and every other part of the British empire. The colonies which had declared, war, would have considered its people as enemies, but would not have had a right to treat them as traitors, or as disobedient citizens resisting their authority. To what purpose then were the people of the colonies 'one people,' if in a case so important to the common welfare, there was no right in all the people together, to coerce the members of their own community to the performance of a common duty ?
"It is thus apparent that the people of the colonies were not 'one people' as to any purpose involving allegiance on the one hand or protection on the other.
"As early as 1765, a majority of the colonies had met together in congress, or convention, in New York, for the purpose of deliberating on these grave matters of common concern; and they then made a formal declaration of what they considered their rights, as colonists and British subjects. This measure, however, led to no redress of their grievances. On the contrary, the subsequent measures of the British government gave new and just causes of complaint; so that, in 1774, it was deemed necessary that the colonies should again meet together, in order to consult upon their general condition, and provide for the safety of their common rights. Hence the congress, which met in Carpenter's Hall on the 5th of September, 1774. It consisted of delegates from New Hampshire, Massachusetts Bay, Rhode Island, and Provi. dence Plantations, Connecticut, from the City and County of New York, und other counties in the Province of New York, New Jersey, Pennsylvania, Neucastle, Kent, and Sussex, in Delaware, Maryland, Virginia, and South Carolina. North Carolina was not represented until the 14th of September, and Georgia not at all. It is also apparent that New York was not represented as a colony, but only through certain portions of her people; in like manner, Lyman Hall was admitted to his seat, in the succeeding congress, as a delegate from the parish of St. John's, in Georgia, although he declined to vote on any question requiring a majority of the colonies to carry it, because he was not the repre. sentative of a colony. This congress passed a variety of important resolutions, between September, 1774, and October 22d, in the same year, during all which time Georgia was not represented at all; for even the parish of St. John's did not appoint a representative till May, 1775. In point of fact, the congress was a deliberative and advisory body, and nothing more; and for this reason it was not deemed important, or, at least, not indispensable, that all the colonies should be represented, since the resolutions of congress had no obligatory force whatever. It was appointed for the sole purpose of taking into consideration the general condition of the colonies, and of devising and recommending proper measures for the security of their rights and interests. For these objects no precise powers and instructions were necessary, and beyond them none were given. Neither does it appear that any precise time was assigned for the duration of congress. The duty with which it was charged was extremely simple; and it was taken for granted that it would dissolve itself as soon as that duty was performed.
"Speaking of the congress of 1774, Marshall says: “The members of this congress were generally elected by the authority of the colonial legislatures, but, in some instances, a different system had been pursued. In New Jersey and Maryland, the elections were made by committees, chosen in the several counties for that particular purpose : and in New York, where the royal party was very strong, and where it is probable that no legislative act, authorizing an election of members to represent that colony in congress, could have been obtained, the people themselves assembled in those places, where the spirit of opposition to the claims of parliament prevailed, and elected deputies, who were very readily received into congress. Here the general rule is stated to be, that the deputies were elected by the colonial legislatures;' and the instances in which the people acted, directly in their primary, sovereign capacity,' without the intervention of the ordinary functionaries of government, are given as exceptions.
"As to New York, neither her people nor her government had so far lost their attachment to their mother country, as to concur in any measure of opposition, until after the battle of Lexington, in April, 1775; and the only representatives which New York had in the congress of 1774, were those of a comparatively small portion of her people. It is well known, and, indeed The author himself so informs us, that the members of the congress of 1775, were elected substantially as were those of the preceding congress; so that
there were very few of the colonies, in which the people performed that act in their .primary, sovereign capacity,' without the intervention of their constituted authorities. It is of little consequence, however, to the present inquiry, whether the deputies were chosen by the colonial legislatures, as was done in most of the colonies, or by conventions, as was done in Georgia and some others; or by committees appointed for the purpose, as was done in one or two instances; or by the people in primary assemblies, as was done in part of New York. The circumstances under which the congresses of 1774 and 1775, were called into existence, precluded the possibility of any precise limi. tations of their powers, even if it had been designed to clothe them with the functions of government. The colonies were suffering under common oppres. sions, and were threatened with common dangers from the mother country. The great object which they had in view, was to produce that concert of action among themselves which would best enable them to resist their common enemy, and best secure the safety and liberties of all. Great confidence must necessarily be reposed in public rulers, under circumstances of this sort.
Many of those powers which, for greater convenience, were intrusted exclusively to congress, could not be effectually exerted, except by the aid of the state authorities. The troops required by congress, were raised by the states, and the commissions of their officers were countersigned by the governors of the states. Congress was allowed to issue bills of credit, but could not make them a legal tender, nor punish the counterfeiter of them. Neither could they bind the states to redeem them, nor raise, by their own authority, the necessary funds for that purpose. Congress received ambassadors and other public ministers, yet had no power to extend to them that protection, which they receive from the government of every sovereign nation.
Thus it appears that, in the important functions of raising an army, of providing a public revenue, of paying public debts, and giving security to the persons of foreign ministers, the boasted sovereignty of the federal govern. ment was merely nominal, and owed its entire efficiency to the co-operation and aid of the state governments. Congress had no power to coerce these governments, nor could it exercise any direct authority over their individual citizens.
“Although the powers actually assumed and exercised by congress, were certainly very great, they were not always acquiesced in, or allowed by the states. Thus, the power to lay an embargo, was earnestly desired by them, but was denied by the states; and in order the more clearly to indicate that many of their powers were exercised merely by sufferance, and, at the same time, to lend a sanction to their authority, so far as they chose to allow it, it was deemed necessary, by at least one of the states, to pass laws indemnifying those who might act in obedience to the resolutions of that body.
“The following extract from the journals of the convention of Virginia, containing the history of this interesting event, cannot fail to be acceptable to every American reader.
"Wednesday, May 15th, 1776.— The convention, then, according to the order of the day, resolved itself into a committee on the state of the colony; and after some time spent therein, Mr. President resumed the chair, and Mr. Carey reported that the committee had, according to order, had under their consideration the state of the colony, and had come to the following resoluLions thereupon; which he read in his place, and afterwards delivered in at the clerk's table, where the same were again twice read, and unanimously agreed to, one hundred and twelve members being present.
« For as much as all the endeavours of the united colonies, by the most decent representations and petitions to the king and parliament of Great Britain, to restore peace and security to America under the British govern