measures; to establish an Imperial postal service; to constitute Imperial and Colonial Courts, unless the right to establish Colonial Courts were granted to a Colony in its Charter; to establish a Supreme Court of Appeal in England for the Colonies (the Court being a Judicial Committee of the Privy Council, which was evidently regarded as the proper body to hear Colonial causes, since such causes had to be decided not by the laws of England but by the equity of those laws); to define and punish piracies and felonies on the high seas and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to provide and maintain an army, navy, and fortifications for the Imperial defence, and to have power over the militia of the Colonies when raised by the Colonies for the Imperial defence; to regulate the mode of proof of the acts, records, and proceedings of a Colony, in another Colony; and to provide for the extradition of criminals from one Colony to another.

Among the matters of common interest concerning which the Colonies could act when authorized, were the entering into treaty, alliance, or confederation with other Colonies; granting letters of marque and reprisal; coining money; emitting bills of credit; or making anything other than gold and silver coin a legal tender in payment of debts.

The right to tax for the Imperial defence and welfare had never, up to 1750 (or until 1764), been exercised by Great Britain. Its rights in this respect had, up to that time, been confined to an adjudication by the King in Council, after hearing the Agents of the Colonies, of the amounts of money or the numbers of troops which ought justly to be supplied by each Colony, and to making requisitions upon the respective Colonies, which responded through action taken by their General Assemblies for raising the money or troops.

3d. Concerning the rights of individuals in the Colonies against the Imperial and the Colonial Governments. It was adjudged and declared by Great Britain and assented to by the Colonies that neither the Imperial nor the Local Governments were to deprive the citizens of the Colonies of the equal protection of the laws (and hence were not to grant any monopoly except for patents, copyrights, etc.) or deprive any person of life, liberty, or property without due process of law. Due process of

law, as against the Imperial Government, consisted in the Colonies being heard, through their Agents, acting both as diplomatic representatives and as attorneys at law, by the Board of Trade and Plantations and the Committee of the Privy Council for Plantation Affairs, before any action of the State of Great Britain depriving them, or any of their inhabitants, of life, liberty, or property, became final.

Under this Constitution, Great Britain and the Colonies were Member-States of a Federal Empire, in which Great Britain was the Imperial State and Central Government which adjudicated upon the limits of its own jurisdiction and concerning its action within these limits, after advis ing with the Colonial Agents, who acted as the representatives of the Colonies at the Court of the Imperial State. The usual instrumentality through which Great Britain made these adjudications or dispositions was the King, assisted by the Committee of the Privy Council for Plantation Affairs as a Secretarial Board or Chancellery, and by the Board of Trade and Plantations as an underSecretarial Board or sub-Chancellery, but the adjudications of the King were reviewable and controllable by the Parliament, composed of King, Lords, and Commons, acting in conformity with the conditions and trusts which rested upon the State.

The whole political organism composed of Great Britain and the Colonies was a Federal Empire, and not a

Federal State, because the Central Government was a State and not an elected body of men. The powers of Great Britain as the Imperial State and Central Government of the Federal Empire were essentially conditional,- the condition being that it should adjudicate the limits of its own jurisdiction, and act only within the limits so adjudicated. It occupied a position of trust of the highest nature, as does every Imperial State in its Federal Empire.

It cannot be said that the existence of the Federal Empire was ever admitted. It could not have been, since the Federal Empire and the Federal State had not yet been recognized and named. Writers on the general public law had not advanced beyond calling such political organisms "Systems of States." It can be said, however, that the Federal Empire existed in fact and that the Constitution above described was, in fact, its fundamental law. That there were acts of the English and British State and its Government during this period which were inconsistent with this Constitution is undeniable, but they were few in comparison with the great body of acts which were explicable only on the theory of the existence of such a Constitution.

The Constitution as it existed in 1750 continued in force unchanged until the close of the French War in 1763. In all the negotiations between the Colonies and Great Britain preceding the Revolution, when a claim was made by or in behalf of the Colonies that they be restored to their constitutional situation, it was invariably the situation as it existed at the close of the war in 1763 that was intended. In speaking of the harmony and good feeling which it was hoped might be restored as the result of the negotiations, it was the harmony and good feeling which existed at the close of the war in 1763 to which the words referred. It would seem, therefore, on first glance, that the pre-Revolutionary Constitution

of the British Empire in America ought to be called the Constitution of 1763, and not the Constitution of 1750. Inasmuch, however, as the acts on both sides which were regarded, in the time of the Revolution, by each of the contending parties, as attempted infractions of its constitutional rights, began in the year 1750, it seems more proper to describe the Constitution as of the last year before any alleged infractions of it took place.

In the year 1750, the Constitution of the British Empire in America reached its greatest efficiency. During the period from 1735 to 1750, the relations of the Colonies with Great Britain were better than they had been at any previous time; and, though seeds of discord were sown between 1750 and 1763, yet the close fellowship and the pursuit of a common end during the war with France drew tighter the bonds of friendship. The Colonies were devoted to the connection with Great Britain, which was, to all intents and purposes, a connection with England, and no one appears to have dreamed that there was anything which was not dignified, just, and proper in their relationship to that State.

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CHAPTER VIII

REALM OR EMPIRE, 1750-1765

FTER the passage of the Act of Settlement of 1689, the King, as a part of the Parliament, consisting of King, Lords, and Commons, was still looked up to by the people as the leader of political thought and action. It was equally repugnant to the ideas of William III. and of the people that the power of the King over legislation should be reduced to a mere power to veto bills that had passed both Houses. It was agreed by all parties that the King ought not only to have a part in the enactment of legislation, both constitutional and ordinary, but that he ought, as the expert part of the Government, to have the power of initiation and an equal voice with each of the two Houses in the framing of enactments. In the actual working of the system established by the Act of Settlement, it was necessary to the maintenance of the King's leadership that he should succeed in persuading the House of Commons to adopt any new measures of legislation initiated by him the House of Lords acting usually with the King, but also checking both the King and the Commons. He could no longer ignore the Commons, or force them. to act as a mere deliberative and registering body.

Legislation, therefore, had to be a matter of agreement between the three parties,— King, Lords, and Commons, and, in order to consummate the agreement, there was need of the services of a body of persons, skilled in government and in party politics, whose