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has appointed, as long as the form of government subsists. This is the British Constitution; and if the British subjects in America still continue to be part of our community, it follows that they also are represented by the British Legislative, and equally bound by its laws.

The answer to this argument, so far as it is founded on the theories of Hooker and Locke, is now easy, but it was not in 1769, because political thought had not then evolved to the point where the State as organized for the purposes of war, was distinguished from the State as organized for the purposes of peace. In the State as organized for the purposes of war, only one Legislature and Executive was possible, and, for the most effective exercise of the power of the State, it was necessary that all power should be in the hands of one individual. For a long time after the condition of peace came to be the normal condition of the State, and the Sovereign became a body of persons instead of a single individual, the theory that the power of the supreme governing person or body was indivisible, remained undisputed. It was not until the American Revolution that it was perceived that the will of the people was the supreme power, and that all governmental power was an agency for them, which they might divide in time of peace between two or more governmental agents, so that each should exercise a supreme governmental agency within its sphere. When Hooker and Locke wrote, the conception of divided supreme governmental agency, on which was based the claim of the Colonies to be Member-States of the British Federal Empire, was unknown.

The next argument was that, because the rights of the Colonies were originally derived from the Crown through charters or commissions granted by it, which necessarily implied an original submission to Parliament as the Supreme Legislature, the Colonies could not claim to be

Member-States of a Federal Empire, because this would imply a subsequent dispensation by the Crown, by which the Colonies were in whole or in part released from the supreme legislative authority of Parliament, which the Crown had never purported to give and which it could not have given, especially since the Act of Settlement of 1689, by which the King recognized that he had no power to dispense with statutes. They said:

That the first inhabitants of the Colonies were part of the British community, and bound to obey its legislative power in all respects, as any other subjects at the time of the establishment of those Colonies, will not be denied. How then has that obedience been altered or released? Those Colonies were all created by charters or temporary authorities, from the Executive Power of this community, except in the cases of Jamaica, New York, and the late acquisition of Quebec, the Ceded Islands, and the two Floridas, which were conquests made by this community upon foreign powers, and such of their subjects as remained were incorporated with us under our laws and obedience. And it cannot, we have seen, be pretended, that this obedience has been altered or released by charters or authorities from the Executive Power; for, on the contrary, the obedience to the laws of Great Britain, without any restriction, is expressly reserved in every one of them, and particularly the right of taxation is mentioned and reserved to the Parliament of Great Britain by the Charter of Pennsylvania, in which Colony Mr. Dickinson wrote his Farmer's Letters.

This argument was difficult to answer in 1769. The character of the Colonies as Member-States of the Federal Empire arose neither from the act of King or Parliament, but in part from their being under the power of the State of Great Britain, and in part from the nature of things. The acts of the Crown derived their force not merely from the fact that they were expressions of the

will of the King or of the State of Great Britain, but also and principally because they were adjudications made by the King under expert advice, concerning the character and extent of the rights of member-statehood which the Colonies ought, on just principles, to have in the Federal Empire. The question, therefore, was not of the right of the Crown to release or discharge the Colonies, in whole or in part, from the power of Parliament, but of the right of the Crown to adjudicate in what manner, and to what extent, the Colonies were, in the nature of things, released and discharged, in time of peace, from the power of the State of Great Britain.

The authors also claimed that, in the case of the inhabitants of the Colonies, there was a special reason why they should be considered as an integral part of the population of the British State, namely, that the proprietary title to the soil itself, as well as the governmental authority over the soil, had been originally vested in the State of Great Britain by discovery, and that the inhabitants had recognized this original and paramount title in many ways, and particularly by paying to the Crown, i.e., to the State of Great Britain, rents, called quit-rents, reserved by it, in lieu of the military or other service which the occupant of the land would otherwise owe. The argument on this point was as follows:

It is however pretended, that the lands in America lying without the Realm, and appertaining to the King only, their possessors cannot, from those circumstances, be subject to the jurisdiction of Parliament, whose authority is necessarily confined within the limits of the Realm. This plea, it is presumed, cannot be made by the inhabitants of such lands as were conquered by the forces of the British State from foreign powers, or ceded to Great Britain by treaty. Those conquests or cessions are surely the dominions of the Crown of Great Britain, not the private property of the King, which have

thus been acquired by the efforts, the blood, and treasure of the community; and indeed Mr. Dickinson puts these out of the question in all that he says of the rights of the Colonies.

But does the discovery of countries by the subjects of the British State, or the cession of them by the natives, make those countries more particularly the private property of the King, than would the conquest of them by force of arms from a foreign Prince, or the acquisition of them by treaty? The difference only lies in the change of the term, the Crown for that of the King; but that change has been made without authority, either of reason or fact. The Kings of England never had personally, nor ever claimed to have any property in the lands in the Colonies. Those of them who carried their claims of prerogative the highest, never pretended to have any other title to those lands than what they derived from their possession of the Crown of England, and they granted them under that title to their present possessors, or their ancestors; for all grants of lands in the Colonies have been made under the Great Seal of England, or by authority derived under the Great Seal of England, which is the same thing, from the first discovery of America to this day.

No man, at least no lawyer, will pretend, that the Great Seal of England is the Private Seal of the King. It is the Seal of the State, and distinguishes the acts of the State from the private acts of the King; now, had the Kings of England claimed to hold the lands in the Colonies as their own private estate, they would have granted them of their own private authority, and passed them under their own Private Seal, and not under the Great Seal of England. The very nature of the grant or charter is therefore an undeniable proof that the lands in the Colonies are, and always have been, the possessions or dominions of the Crown of England, and not the private personal property of the Kings of England. And it is an equally undeniable consequence, that those who hold those lands under such grants or charters, or by whatever title which derives its authority originally or immediately under the Great Seal of England, hold them of the Crown of England, and as a part and parcel of the Realm; for the Crown's estate must

necessarily be within the Realm, since it is the estate or dominions of the Crown (though not of the King) which make the Realm.

In so far as this argument showed that the soil of the Colonies belonged to the State of Great Britain as its "property," it was unanswerable, but the conclusion drawn from this premise was wholly wrong, as it is now possible to see. To conclude from the premise that the soil of the Colonies was the property of the State of Great Britain, and, as such, subject to the unconditioned and unlimited power of that State, that the people of the Colonies were subject to the unconditioned and unlimited power of that State, necessitated a minor premise to the effect that the people on the soil of the Colonies were a part of the soil.

The argument, put in the form of a syllogism, would be:

The soil of the Colonies is the property of the State of Great Britain, and, as such, subject to its unconditioned and unlimited power.

The people on the soil of the Colonies are a part of the soil of the Colonies.

Therefore the people of the Colonies are the property of the State of Great Britain, and, as such, subject to its unconditioned and unlimited power.

The truth of this minor premise, under any circumstances, would now be denied, according to the practically unanimous sentiment of the civilized world, though the principle contained in it is still, unfortunately, the underlying basis of much political action. The difficulty with the syllogism, however, reaches back to the major premise, which is itself too broad, because not making a difference in the kind and degree of property which a State has in the soil of countries external to itself, according as they are occupied by human beings or not. If the

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