the eastern sea, be adjudged to belong to his Majesty, and the other half to Lord Baltimore." 1

This report His Majesty approved, it was also affirmed in 1709 by Queen Anne in Council, and by this interpretation of the grants in question Penn would acquire that part of the three counties bordering on the Delaware River and the ocean as far south as Cape Henlopen, and Lord Baltimore the western half thereof. The boundaries, however, would remain to be run and marked, and, after much delay, an agreement was entered into, dated May 10, 1732, between Penn's sons, on the one hand, and the then Lord Baltimore, on the other, providing for the determination of the line by commissioners on or before Christmas, 1733. The line, however, was not drawn before the expiration of this time. The Penns thereupon petitioned the Privy Council to have the agreement executed, but the Committee for Hearing Appeals from the Plantations recommended, on May 10, 1735, "that the Consideration of the said Report and Petitions should be adjourned until the end of Michaelmass Term next in Order to give an Opportunity to the said John Thomas and Richard Penn to proceed in a Court of Equity to obtain relief upon the said Articles of Agreement so insisted upon by them according as they shall be advised." 2 Therefore the Penns filed their bill in equity on June 21, 1731, for the specific performance of the articles of the agreement.

In 1745 Lord Chancellor Hardwicke, before whom the case was heard, thought the bill should be amended by making the Attorney General a party on behalf of the Crown. As amended, the bill was heard and, in 1750, the specific performance of the articles of agreement was decreed by Lord Hardwicke. For present purposes it is sufficient to say that the plea to the jurisdiction of the court taken by Lord Baltimore was overruled, and properly, for although the lands lay beyond the jurisdiction of the court, the parties plaintiff and defendant were before it, and as equity acts in personem they could properly be, and they were ordered in England to perform the act in America.

This is, however, a matter of equity practice and procedure. The important point for us is that the Privy Council refused to assume jurisdiction, and, by means of commissions, to determine the boundaries in dispute, since there was an agreement between the parties on the very question, enforcible in equity. There was no need to resort to the King in Council, because the parties had their day in court. The question was therefore settled, upon

1 Chalmers, Opinions of Eminent Lawyers, pp. 86-7.

2 Acts of the Privy Council, Colonial Series, Vol. iii, p. 336.

3 Penn. v. Lord Baltimore (Ridgeway temp. Hardwicke, 332; Reprint, English Reports, Vol. 27, p. 1132).

4 Penn. v. Lord Baltimore (1 Vesey Sr., 444).

great deliberation, by the first of English Chancellors, that boundaries between provinces as large as kingdoms did not need to be settled by force of arms; that disputes of this nature were susceptible of judicial determination, and that an agreement to settle the dispute and to draw the boundaries in a particular manner made the question judicial, to be passed upon in a court of justice, although it might have been considered political, in the absence of an agreement, and as such been passed upon by the King in Council.

A Political

May Become
Justiciable

The case of Penn v. Lord Baltimore was, therefore, a precedent for the Dispute framers of the Constitution, clearly pointing out that political questions would become justiciable by an agreement to settle them, which, when made, could be interpreted and carried into execution by a court of justice. It was quoted as such in the leading case of Rhode Island v. Massachusetts (12 Peters, 657), decided in 1838, in which decision the distinction here taken was announced, and the procedure before the King in Council recognized as a precedent for investing the Supreme Court with jurisdiction of controversies between States. More recently Chief Justice White, in delivering the opinion of the court in Virginia v. West Virginia (246 U. S., 565, 597),1 decided in 1918, thus referred to the case of Rhode Island v. Massachusetts and the proceedings in the Privy Council as a precedent, and gave to each, as such, the stamp of his approval:

Bound by a common allegiance and absolutely controlled in their exterior relations by the mother country, the colonies before the Revolution were yet as regards each other practically independent, that is, distinct one from the other. Their common intercourse, more or less frequent, the contiguity of their boundaries, their conflicting claims, in many instances, of authority over undefined and outlying territory, of necessity brought about conflicting contentions between them. As these contentions became more and more irritating, if not seriously acute, the necessity for the creation of some means of settling them became more and more urgent, if physical conflict was to be avoided. And for this reason, it is to be assumed, it early came to pass that differences between the colonies were taken to the Privy Council for settlement and were there considered and passed upon during a long period of years, the sanction afforded to the conclusions of that body being the entire power of the realm, whether exerted through the medium of a royal decree or legislation by Parliament. This power, it is undoubtedly true, was principally called into play in cases of disputed boundary, but that it was applied also to the complaint of an individual against a colony concerning the wrongful possession of property by the colony alleged to belong to him, is not disputed. This general situation as to the disputes between the colonies and. the power to dispose of them by the Privy Council was stated in Rhode Island v. Massachusetts, 12 Pet. 657, 739, et seq., and will be found reviewed in the authorities referred to in the margin.

When the Revolution came and the relations with the mother country were severed, indisputably controversies between some of the colonies, of the greatest moment to them, had been submitted to the Privy Council and were

1 Also Scott, Judicial Settlement, Vol. ii, pp. 1751-73.

undetermined. The necessity for their consideration and solution was obviously not obscured by the struggle for independence which ensued, for, by the Ninth of the Articles of Confederation, an attempt to provide for them as well as for future controversies was made. Without going into detail it suffices to say that that article in express terms declared the Congress to be the final arbiter of controversies between the States and provided machinery for bringing into play a tribunal which had power to decide the same. That these powers were exerted concerning controversies between the States of the most serious character again cannot be disputed. But the mechanism devised for their solution proved unavailing because of a want of power in Congress to enforce the findings of the body charged with their solution, a deficiency of power which was generic, because resulting from the limited authority over the States conferred by the Articles of Confederation on Congress as to every subject. That this absence of power to control the governmental attributes of the States, for the purpose of enforcing findings concerning disputes between them, gave rise to the most serious consequences, and brought the States to the very verge of physical struggle, and resulted in the shedding of blood and would, if it had not been for the adoption of the Constitution of the United States, it may be reasonably assumed, have rendered nugatory the great results of the Revolution, is known of all and will be found stated in the authoritative works on the history of the time.

The views of the Chief Justice can not be gainsaid. If, however, contemporary exposition is preferred, as to the nature, function and rôle of the Privy Council in the administration of justice and the maintenance of order upon the basis of law, it is at hand, for in the seventeenth article of the Constitution of Delaware, adopted on Friday, September 20, 1776, by the three lower counties of Pennsylvania, forming "The Delaware State," as it was then called, it is provided that: "There shall be an appeal from the supreme court of Delaware in matters of law and equity, to a court of seven persons, to consist of the president for the time being, who shall preside therein, and six others, to be appointed, three by the legislative council, and three by the house of assembly, who shall continue in office during good behaviour, and be commissioned by the president under the great seal; which court shall be stiled, The Court of Appeals, and have all the authority and powers heretofore given by law in the last resort to the king in council, under the old government.” 1

1 The Constitutions of the Several Independent States of America, 1781, p. 111.

VI

ESTABLISHMENT OF STATE CONSTITUTIONS

In short, these legislators derive their power from the constitution, how then can they change it, without destroying the foundation of their authority? (M. de Vattel, The Law of Nations; or Principles of the Law of Nature: Applied to_the_Conduct and Affairs of Nations and Sovereigns, 1758, Translated from the French Vol. I, 1760, Book 1, Chapter III, § 34, p. 18.)

To examine the Union before we have studied the State would be to adopt a method filled with obstacles. The great political principles which now govern American society undoubtedly took their growth in the State. (Alexis de Tocqueville, De la Démocratie en Amérique, 2 Vols., 1835, Vol. I, p. 80.)

"At a meeting of the Inhabitants of the Town of Concord being free and Twentyone years of age and upward, upon adjournment on the twentyfirst Day of October, 1776, Ephraim Wood Junr being Moderator, Voted unanimously that the Present House of Representatives is not a proper Body to form a Constitution for this State. And Voted to Chuse a Committee of five men to make answer to the Question Proposed by the House of Representatives of this State and to Give the Reasons why the Town thinks them not a suitable body for that Purpas, the persons following was Chosen the Committee above mentioned, viz, Ephraim Wood Junr, Mr. Nathan Bond, Col. James Barrett, Col. John Buttrick, and James Barrett esqr. And the Committee Reported the following Draft which being Read several times over for Consideration it then was Read Resolve by Resolve and accepted unanimously in a very full Town meeting- the Reasones are as followes -

Resolved 1st, that this State being at Present destitute of a properly established form of Government, it is absolutely necessary that one should be immediately formed and established.

66

Resolved secondly that the supreme Legislative, Either in their proper capacity or in Joint Committee are by no means a Body Proper to form & Establish a Constitution or form of Government for Reasones following, viz-first Because we conceive that Constitution in its proper Idea intends a system of principals established to secure the subject in the Possession of and enjoyment of their Rights & Privileges against any encrouchment of the Governing Part. Secondly Because the same Body that forms a Constitution have of Consequence a power to alter it-thirdly Because a Constitution alterable by the Supreme Legislative is no security at all to the subject against the encrouchment of the Governing part on any or on all their Rights and Privileges.

"Resolved thirdly that it appears to this Town highly expidient that a Convention or Congress be immediately chosen to form and establish a Constitution, by the Inhabitants of the Respective Towns in this State being free and Twentyone years and upward, in Proportion as the Representatives of this State were formerly chosen; the Convention or Congress not to consist of a greater number than the house of assembly of this State heretofore might consist of, except that Each Town & District shall have Liberty to send one Representative; or otherwise as shall appear meet to the Inhabitants of this State in General.

'Resolved 4ly. That when the Convention or Congress have formed a Constitution, they adjourn for a short time, and publish their Proposed Constitution for the Inspection and Remarks of the Inhabitants of this State.

Resolved 5ly. That the Honble. House of assembly of this State be Desired to recommend it to the Inhabitants of this State to Proceed to Chuse a Convention or Congress for the Purpas above mentioned as soon as possible. Signed by order of the Committee Ephraim Wood Ju Chairman, and the meeting was Desolved by the Moderator."

(Roger Sherman Hoar, The Invention of Constitutional Conventions, 1918, in The Constitutional Review, vol. 2, pp. 99–100.)

The elements of the British constitution, which the American people claimed as their inheritance, were not so much the customary forms which entered into the structure of the British government as those chartered privileges which might serve to protect them from the supervision and interference of autocratic power. What they most desired was to be let alone and to work out their own political salvation. And it was precisely when

and where they were least hampered by foreign control, and least influenced by foreign models, that they developed those political features which have become the most distinctive characteristics of the American constitutional system. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, p. 232.)

The American colonists inherited the instincts of the English race. But under new circumstances they were called upon to work out problems which were peculiar to their own political life; and as a consequence of this we find that the constitutional system which grew up on this continent was an American and not a European product. Even those institutions which seem to have a general similarity to those which are foreign have here acquired specific characteristics which distinguish them from those belonging to any foreign country. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, pt. 1, p. 203.)

The first State constitutions were in their main features the direct descendants of the colonial governments, modified to the extent necessary to bring them into harmony, with the republican spirit of the people. Every State, either in a preamble or in a separate declaration of rights, prefaced its constitution by a statement of the chartered rights upon which it had always insisted; and many of them also declared in general terms the democratic principles which their experience and reason had taught them and which had been partly realized in their previous governments. (William C. Morey, The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, pt. I, p. 219.)

In a previous paper published in this journal it was claimed that the real continuity in the growth of American constitutional law could be seen only by tracing: first, how the charters of the English trading companies were transformed into the organic laws of the early colonies; second, how the organic laws of the colonies were translated into the constitutions of the original States; and, finally, how the original State constitutions contributed to the Constitution of the Federal Union. (William C. Morey. The First State Constitutions, Annals of the American Academy of Political and Social Science, 1893, Vol. 4, p. 202.)

In applying the historical method to the study of the American political system it is not enough to trace the origin and growth of the various branches of the federal government. The origin of the forms of the federal government presents no great historical difficulties to one who has carefully studied the constitutional history of the early States and colonies. He finds that the central government of the United States, in its general structure and its various branches, is scarcely more than a reproduction on a higher plane of the government forms existing in the previous States, and more remotely in the early colonies. (William C. Morey, The Sources of American Federalism, American Academy of Political and Social Sciences, 1895, Vol. 6, p. 197.)

"The powers of the states depend on their own constitution; the people of every state had the right to modify and restrain them according to their own views of policy or principle; and they remain unaltered and unimpaired, except so far as they were granted to the government of the United States. These deductions have been positively recognised by the tenth amendment." 1 Wh. 325. "The powers retained by the states, proceed not from the people of America, but from the people of the several states, and remain after the adoption of the constitution what they were before, except so far as they may be abridged by that instrument." 4 Wh. 193. S. P.; 5 Wh. 17, 54; 9 Wh. 203, 9. "In our system, the legislature of a state is the supreme power; in all cases where its action is not restrained by the constitution of the United States." 12 Wh. 347. "Its jurisdiction is coextensive with its territory, coextensive with its legislative power," 3. Wh. 387; "and subject to this grant of power, adheres to the territory as a portion of sovereignty not yet given away." The residuary powers of legislation are still in the state. Ib. 389. "The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission." 6 Wh. 429: 4 Pet. 564. (Mr Justice Baldwin. A General View of the Origin and Nature of the Constitution and Government of the United States, 1837, pp. 14-15.)