propriety can it be affirmed that bodies of people are one people, when they have separate and distinct governments; of separate and distinct forms; with distinct and conflicting systems of jurisprudence; where the judgments of one are held foreign to the other (as was the case in the colonies); when neither can interfere with or control another, and, in short, when each has the power of governing itself without being dependent on the will of the other? Judge Story, himself, tells us (195) that if a state has the sole power of governing itself, and is not dependent on any foreign state, it is called a sovereign state; from which the corollary seems fair, that every state must be held to be independent and distinct from every other state by which it is not governed. The law-making power seems peculiarly to give its character in this regard to the society. That which makes for itself law, and particularly its fundamental law, is so far sovereign. That power of legislation for itself, makes it distinct from others; for legislation is the action of political bodies, and separate legislation is separate action, which is inconsistent with the notion of unity.(k) Thus it is that two peoples may have the same king, and yet be separate people: as in the case of Great Britain and Hanover now, and of England and Scotland before the union. The union itself proves that they were not one before. At this day England and Hanover, with the same king, are not involved in the wars of each other. Ireland, too, before the union, was considered as foreign, and the judgments of her courts, and those of Jamaica, of Canada and of India are looked upon as foreign judgments. Even the judgment of the king's bench is a foreign judgment in Ireland, 2 Str. 1090; 4 Barn. & Cres. 411; and the court of king's bench itself affirms the judgment which so pronounces it. But if these portions of the empire are foreign to England, the thirteen colonies must have been foreign to her, and if foreign to her, how much more foreign to Hindostan, or Antigua, or to one another?

There was then nothing of nationality or oneness in the people of the colonies. Each colony was a distinct com

(k) 1 Tuck. Black. app. 64, 65, citing Hutchinson, Vattel and Burlamaque.

munity or body politic; having its own charter, its own government, its own laws and institutions, and its own right of separate action, under the control indeed of the crown, but not of the sister colonies: and hence, I confidently conclude, that they did not in any sense whatever constitute one people.

Unwilling however to leave this important position upon my less forcible arguments, I offer to the student the acute remarks of judge Upshur in his able review of a part of udge Story's work. The learned and sagacious author

observes:

"It appears to be a favourite object with the author to impress upon the mind of the reader, at the very commencement of his work, the idea that the people of the several colonies were, as to some objects, which he has not explained, and to some extent, which he has not defined, 'one people.' This is not only plainly inferable from the general scope of the book, but is expressly asserted in the following passage: '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 capa ble 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 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 results from the mere circumstance of being governed by the same prince.' '

"In this passage the author takes his ground distinctly and boldly. The first idea suggested by the perusal of it is, that he discerned very clearly the necessity of establishing his position, but did not discern quite so clearly by what process of reasoning he was to accomplish it. If the passage stood alone, it would be fair to suppose that he did not design to extend the idea of a unity among the people of the colonies beyond the several particulars which he has enumerated. Justice to um requires that we should suppose this; for, if it had been otherwise, he would scarcery have failed to support his opinion by pointing out some one of the 'many purposes,' for which the colonies were, in his view of them, 'one people.' The same may be said of Mr. chief justice Jay. He also has specified several particulars in which he supposed this unity to exist, and arrives at the conclusion, that the people of the several colonies were, 'in a variety of respects, one people.' In what respect they were 'one,' except those which he has enumerated, he does not say, and of course it is fair to presume that he meant to rest the justness of his conclusion upon them alone. The historical facts stated by both of these gentlemen are truly stated; but it is surprising that it did not occur to such cool reasoners, that every one of them is the result of the relation between the colonies and the mother country, and not the result of the relation between the colonies themselves. Every British subject, whether born in England proper or in a colony, has a right to reside any where within the British realm; and this by the force of British laws. Such is the right of every Englishman, wherever he may be found. As to the right of the colonist to inherit lands by descent in any other colony than his own, our author himself informs us that it belonged to him ' as a British subject.' That right, indeed, is a consequence of his allegiance. By the policy of the British constitution and laws, it is not permitted that the soil of her territory should belong to any from whom she cannot demand all the duties of allegiance. This allegiance is the same in all the colonies as it is in England proper; and, wherever it exists, the correspondent right to own and inherit the soil attaches. The right to regulate commercial 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 shewn 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 fight 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 here 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 shew 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 that 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.'

"It is to be regretted that the author has not given us his own views of the sources from which these several

rights and powers were derived. If they authorize his conclusion, that there was any sort of unity among the people of the several colonies, distinct from their common connexion with the mother country, as parts of the same empire, it must be because they flowed from something in the relation betwixt the colonies themselves, and not from their common relation to the parent country. Nor is it enough that these rights and powers should, in point of fact, flow from the relation of the colonies to one another; they must be the necessary result of their political condition. Even admitting, then, that they would, under any state of circumstances, warrant the conclusion which the author has drawn from them, it does not follow that the conclusion is correctly drawn in the present instance. For aught that he has said to the contrary, the right of every colonist to inhabit and inherit lands in every colony, whether his own or not, may have been derived from positive compact and agreement among the colonies themselves; and this presupposes that they were distinct and separate, and not one people.' 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 the Canadas are, for the very same one people' at this day. If a common allegiance to a common sovereign, and a common subordination to his jurisdiction, are sufficient to make the people of different countries' one people,' it is not perceived (with all deference to Mr. chief justice Jay) why the people of Gaul, Britain and Spain might not have been one people,' while Roman provinces, notwithstanding the patriots' did not say so. 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 shew something in their charters, or some peculiarity in their condition, to exempt them from the general rule. Judge Story was too well acquainted with the state of the facts to make any such attempt in the present case. The congress of the nine co

reason,

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