the people of the Empire assembled, which was supreme throughout the whole organism, the ultimatum of any Member-State in the Empire, against the Imperial State or against another Member-State, for committing any governmental act inconsistent with the Constitution of the Empire, would have been addressed to the person or body of persons in the Empire whose function it was to interpret and adjudicate the terms of the unwritten Constitution of the Empire, and to cause the Constitution, as so interpreted and adjudicated, to be executed throughout the Empire. If this person were the King, the ultimatum of the Colonies would have been delivered to him, if it were the House of Lords, to that body, if it were the House of Commons, to that body, if it were the whole Parliament, consisting of King, Lords, and Commons assembled, to that body. The person or body of persons so addressed would have been petitioned to exercise his or their "power" or "authority" to adjudicate and declare the Constitution of the Empire, to enjoin and prevent the execution of all acts inconsistent with the Constitution, and to execute the Constitution by affirmative acts. Such an ultimatum would virtually have been a suit in court, and it would not have been necessary for the complaining party to state what it would do if its complaint were fairly adjudicated against it, since it would have gone without saying that it would submit to such an adjudication. If the officer or tribunal designated as the proper official to adjudicate and execute the Constitution refused to act as such and was supported in its refusal by the opposing party, the Empire would be ipso facto dissolved.

The Address to the King was plainly based on this last theory. He was not asked to use his influence as a friendly third person, by way of mediation, but he was asked to exercise power and authority to adjudicate, declare, and execute the unwritten Constitution of the Federal Empire, as the sole official of the Empire upon

whom that function rested. As the power of adjudication, accompanied by the power of execution, is exactly the power of disposition, the King was addressed as the Disposer of the affairs of the Empire.

The King was implored "as the loving father of his whole people, connected by the same bonds of law, loyalty, faith and blood, although dwelling in various countries," not to "suffer the transcendent relation formed by these ties to be further violated." He was petitioned to "redress the grievances" of the Colonies, by using his “royal authority and interposition" for the "relief" of the Colonies against a "system of statutes and regulations of the British Parliament alleged to be a wrongful action on the part of Great Britain toward the Colonies. The Colonies declared that they "wished not a diminution of the prerogative," nor "solicited the grant of any new right in their favor," and that "they should always carefully and zealously endeavor to support and maintain the King's "royal authority" over them and their "connection with Great Britain."

An "authority" of the King to "interpose" so as to prevent the execution of the legislation of the State of Great Britain was essentially the same power as the King's Chancellor exercised in suits between private persons when he enjoined the performance of a threatened act because in violation of a contract for personal services. The State of Great Britain was regarded in the Address to the King as a person which had entered into an unwritten contract with the Colonies, as persons, to perform services for them. It was complained of as a party defendant in a judicial action because it was threatening to insist upon performing services for the Colonies which were not included in the contract, which the Colonies did not desire, and which were not for their benefit. The King was prayed to interpret the terms of the contract, and, on its being determined by him that Great Britain

had violated the terms of the contract, to enjoin the further performance or attempt to perform the services not included in it. This unwritten contract was described in the Address as "the transcendent relation formed by the ties of law, loyalty, faith and blood," which was the supreme law governing the relations of the States of the Empire to each other.

The purpose of the Address to the People of Great Britain was, in part, to urge them to settle the matter out of court and thus avoid the necessity of having the matter go to final judgment, and in part to notify them that, if they persisted in supporting their Parliament in the position that the Empire was not a federal organism and thus making it impossible for the King to adjudicate and execute the unwritten Constitution of the Empire, the Colonies would regard the Empire as dissolved by the act of the people and State of Great Britain. In this Address it was declared that the statutes complained of were violations of the "rights of the whole Empire,"—that is, of the unwritten Constitution of the Federal Empire. The people of Great Britain were declared to be addressed as "fellow-subjects" of the same King,-that is, as subject to the adjudication and execution, by the King of Great Britain, as ex officio the Disposer of the affairs of the Empire, of the terms of the Constitution of the Empire. An appeal was made to their "justice and magnanimity to compel the Parliament to repeal the statutes which were in excess of the constitutional powers of the State of Great Britain, and thus remove the necessity for an adjudication and execution of the Constitution of the Empire by the King.

The ultimatum of America therefore was, in a word, that the British Empire be recognized, by the State of Great Britain, as a Federal Empire.

TH

CHAPTER XVII

BRITISH PROPOSITIONS, 1775

HE decision in the case of Campbell v. Hall, rendered November 28, 1774, after four arguments, by the Court of Kings Bench, presided over by Chief Justice Mansfield, recognizing as it did that the King had legislative power over dependencies arising by conquest, and that such power was conditioned and limited so that he could make no laws which were "contrary to fundamental principles, or excepting from the laws of trade or authority of Parliament, or granting privileges [to inhabitants of the Colonies] exclusive of his other subjects," gave a new trend to thought on both sides of the water, and particularly in America. Thence

forward, though the Court in that case had recognized Parliament as the Supreme Legislature of the Empire, there was a distinct and increasing tendency in America to regard the King—that is, the King in Council-as the Supreme Head of the Empire, and to deny to Parliament all power in the Empire.

The exact question involved in that case was, whether the King, after having granted, by Proclamation in Council, to the Island of Grenada, in the West Indiesone of the countries ceded by France to Great Britain by the Treaty of Paris of February 4, 1763, upon the close of the war-the right to have an elected House of Representatives as a part of its General Assembly, could, by a subsequent Proclamation in Council, lay a tariff duty on articles imported into the Island. The Court held that

the King would have had power to levy the tax, had he not granted Grenada the right to have an elective branch of its Legislature, but that by such grant he had precluded himself from levying the tax.

In the argument on behalf of the Crown, Attorney General Thurlow (afterwards Lord Chancellor) said:

My reason for stating that dominion and property were acquired over Grenada by conquest was, because I shall infer that the Constitution has intrusted the King with the disposition of the property, and with the ordering of that dominion conquered; subject to the legislation of the country [i. e., of Great Britain].

The King, both in conquests and colonies, has had this right. There has not been an instance in which the King has not exercised the disposition of the laws and property of the conquered country.

Lord Mansfield, delivering the opinion of the Court, said:

If the King has power (and when I say the King, I mean in this case to be understood "without concurrence of Parliament") to make new laws for a conquered country, this being a power subordinate to his own authority as a part of the Supreme Legislature in Parliament, he can make none which are contrary to fundamental principles, none excepting from the laws of trade or authority of Parliament, or [granting] privileges exclusive of his other subjects.

The present proclamation [of July 20, 1764, levying the tax] is an act of this subordinate legislative power. If made before the 11th of October, 1763 [the date of the proclamation granting to Grenada the right to have a Legislative Assembly], it would have been made on the most reasonable and equitable grounds; putting the Island of Grenada on the same footing as the other Islands. . The only question which remains then is, whether the King had power, after the 4th of February, 1763, of himself, to impose the duty.