ciliation of their local interests, and for the gradual developement of the principles, upon which a union ought to rest, rather than brought on an immediate sense of the necessity, or the blessings of such a general gov

ernment.

91. But although the colonies were independent of each other in respect to their domestic concerns, they were not wholly alien to each other. On the contrary, they were fellow subjects, and for many purposes one people. Every colonist had a right to inhabit, if he pleased, in any other colony; and, as a British subject, he was capable of inheriting lands by descent in every other colony. The commercial intercourse of the colonies, too, was regulated by the general laws of the British empire; and could not be restrained, or obstructed by colonial legislation. The remarks of Mr. Chief Justice Jay on this subject are equally just and striking. "All the people of this country were then subjects of the king of Great Britain, and owed allegiance to him; and all the civil authority then existing, or exercised here, flowed from the head of the British empire. They were, in a strict sense, fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert, that only the same affinity and social connexion subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, to wit, only that affinity and social connexion, which result from the mere circumstance of being governed by the same prince." Different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.

§ 92. In respect to the political relations of the colonies with the parent country, it is not easy to state the exact limits of the dependency, which was admitted,

and the extent of sovereignty, which might be lawfully exercised over them, either by the crown, or by parliament. In regard to the crown, all of the colonies admitted, that they owed allegiance to the crown, as their sovereign liege lord, though the nature of the powers, which he might exercise, as sovereign, were still undefined.

§ 93. In the silence of express declarations we may resort to the doctrines maintained by the crownwriters, as furnishing, if not an exact, at least a comprehensive view of the claims of the royal prerogative over the colonial establishments. They considered it not necessary to maintain, that all the royal prerogatives, exercisable in England, were of course exercisable in the colonies; but only such fundamental rights and principles, as constituted the basis of the throne and its authority, and without which the king would cease to be sovereign in all his dominions. Hence the attributes of sovereignty, perfection, perpetuity, and irresponsibility, which were inherent in the political capacity of the king, belonged to him in all the territories subject to the crown, whatever were the nature of their laws, and government in other respects. Every where he was the head of the church, and the fountain of justice; every where he was entitled to a share in the legislation, (except where he had expressly renounced it ;) every where he was generalissimo of all forces, and entitled to make peace or war. But minor prerogatives might be yielded, where they were inconsistent with the laws or usages of the place, or were inapplicable to the condition of the people. In every question, that respected the royal prerogatives in the colonies, where they were not of a strictly fundamental nature, the first thing to be considered was, whether the charter of the

particular colony contained any express provision on the subject. If it did, that was the guide. If it was silent, then the royal prerogatives were in the colony precisely the same, as in the parent country; for in such cases the common law of England was the common law of the colonies for such purposes. Hence, if the colonial charter contained no peculiar grant to the contrary, the king might erect courts of justice and exchequer therein; and the colonial judicatories, in point of law, were deemed to emanate from the crown, under the modifications made by the colonial assemblies under their charters. The king also might extend the privilege of sending representatives to new towns in the colonial assemblies. He might control, and enter a nolle prosequi in criminal prosecutions, and pardon crimes, and release forfeitures. He might present to vacant benefices; and he was entitled to royal mines, treasuretrove, escheats, and forfeitures. No colonial assemblies had a right to enact laws, except with the assent of the crown by charter, or commission, or otherwise; and if they exceeded the authority prescribed by the crown, their acts were void. The king might alter the constitution and form of the government of the colony, where there was no charter, or other confirmatory act by the colonial assembly with the assent of the crown; and it rested merely on the instructions and commissions given, from time to time, by the crown to its governors. The king had power also to vest in the royal governors in the colonies, from time to time, such of his prerogatives, as he should please; such as the power to prorogue, adjourn, and dissolve the colonial assemblies; to confirm acts and laws; to pardon offences; to act as captain general of the public forces; to appoint public officers; to act as chancellor and supreme ordinary; to

sit in the highest court of appeals and errors; to exercise the duties of vice-admiral, and to grant commissions to privateers. These last and some other of the prerogatives of the king, were commonly exercised by the royal governors without objection.

§ 94. The colonial assemblies were not considered as standing on the same footing, as parliament, in respect to rights, powers, and privileges; but as deriving all their energies from the crown, and limited by the respective charters, or other confirmatory acts of the crown, in all their proceedings. The king might, in respect to a colonial assembly, assent to an act of assembly, before it met, or ratify it, or dissent from it, after the session was closed. He might accept a surrender of a colonial charter, subject to the rights of third persons previously acquired; and give the colony a new charter, or otherwise institute therein a new form of government. And it has been even contended, that the king might, in cases of extraordinary necessity or emergency, take away a charter, where the defence or protection of the inhabitants required it, leaving them in possession of their civil rights.

§ 95. Such are some of the royal prerogatives, which were supposed to exist by the crown-writers in the colonial establishments, when not restrained by any positive charter or bill of rights. Of these, many were undisputed; but others were resisted with pertinacity and effect in the colonial assemblies.

§ 96. In regard to the authority of parliament to enact laws, which should be binding upon them, there was quite as much obscurity, and still more jealousy spreading over the whole subject. The government of Great Britain always maintained the doctrine, that the parliament had authority to bind the colonies in all cases

whatsoever. No acts of parliament, however, were understood to bind the colonies, unless expressly named therein. But in America, at different times and in different colonies, different opinions were entertained on the subject. In fact it seemed to be the policy of the colonies, as much as possible, to withdraw themselves from any acknowledgment of such authority, except so far as their necessities, from time to time, compelled them to acquiesce in the parliamentary measures expressly extending to them. We have already seen, that they resisted the imposition of taxes upon them, without the consent of their local legislatures, from a very early period.

§ 97. But it was by no means an uncommon opinion in some of the colonies, especially in the proprietary and charter governments, that no act of parliament whatsoever could bind them without their own consent. An extreme reluctance was shown by Massachusetts to any parliamentary interference as early as 1640; and the famous navigation acts of 1651 and 1660 were perpetually evaded, even when their authority was no longer denied, throughout the whole of New-England. Massachusetts, in 1679, in an address to the crown, declared, that she "apprehended them to be an invasion of the rights, liberties, and properties of the subjects of his majesty in the colony, they not being represented in parliament; and, according to the usual sayings of the learned in the law, the laws of England were bounded within the four seas, and did not reach America." However, Massachusetts, as well as the other NewEngland colonies, finally acquiesced in the authority of parliament to regulate trade and commerce; but denied it in regard to taxation and internal regulation of the colonies. As late as 1757, the general court of Mas