only shall have power to make laws or repeal them, to grant levies, to admit freemen, dispose of lands undisposed of to several towns or persons, and shall also have power to call either court or magistrate, or any other person whatsoever, into question for any misdemeanor, and may for just cause displace or deal otherwise according to the nature of the offense; and also may deal in any other matter that concerns the good of this commonwealth, except election of magistrates, which shall be done by the whole body of freemen." . . . That Constitution was adopted on the 14th of January, 1639.

The New England Confederation.

The governmental purpose of the New England Confederation is set forth by Chief Justice Taney in the case of Kentucky v. Dennison,' decided in 1860 by the U. S. Supreme Court, as follows:

The necessity of [the] policy of mutual support, in bringing offenders to justice, without any exception as to the character and nature of the crime, seems to have been first recognized and acted upon by the American colonies; for we find by Winthrop's History of Massachusetts, vol. 2, pages 121 and 126, that as early as 1643, by "Articles of Confederation between the plantation under the government of Massachusetts, the plantation under the government of New Plymouth, the plantation under the government of Connecticut and the government of New Haven, with the plantations in common therewith," these plantations pledged themselves to each other that, "upon the escape of any prisoner or fugitive for any criminal cause, whether by breaking prison, or getting from the officer, or otherwise escaping, upon the certificate of two magistrates of the jurisdiction out of which the escape was made that he was a prisoner or such an offender at the time of 24 Howard (U. S.) Rep., 66.

I

the escape, the magistrate, or some of them, of the jurisdiction where, for the present, the said prisoner or fugitive abideth, shall forthwith grant such a warrant as the case will bear, for the apprehending of any such person, and the delivery of him into the hands of the officer or other person who pursueth him; and if there be help required for the safe returning of any such offender, then it shall be granted unto him that craves the same, he paying the charges thereof." It will be seen that this agreement gave no discretion to the magistrate of the government where the offender was found; but he was bound to arrest and deliver, upon the production of the certificate under which he was demanded.

CHAPTER II

ESTABLISHMENT OF THE UNITED STATES GOVERNMENT

The Interregnum.

The governments that had been established by royal charters and land grants were displaced during the agitations which preceded the War for Independence. For a time, the inhabitants of the different colonies got along as well as they could without any governments at all, relying for the maintenance of order upon the control exercised in each of the towns and counties by those who had previously been public officers. The legislature of each colony, having lost its legal status under the colonial system, reassembled as a provincial congress, but was really a convention of notables rather than a governing body. These congresses sent delegates to the First Continental Congress, which met at Philadelphia in September, 1774, and to the Second Continental Congress, which declared the independence and national existence of the United States of America. This Second Continental Congress was not a government in any true sense of the word, but was really a committee composed of delegates from the newly established States. It carried on the war and made a few treaties, but did not exercise any control over the people or the States. In the case of Penhallow v. Doane,1 1 3 Dallas (U. S.) Rep., 54, 90.

decided in 1795 by the U. S. Supreme Court, Justice Paterson described as follows the political status of the Second Continental Congress:

The powers of [the Second Continental] congress were revolutionary in their nature, arising out of events adequate to every national emergency, and co-extensive with the object to be attained. Congress was the general, supreme, and controlling council of the nation, the centre of union, the centre of force, and the sun of the political system. To determine what their powers were, we must inquire what powers they exercised. Congress raised armies, fitted out a navy, and prescribed rules for their government; congress conducted all military operations both by land and sea; congress emitted bills of credit, received and sent ambassadors, and made treaties; congress commissioned privateers to cruise against the enemy, directed what vessels should be liable to capture, and prescribed rules for the distribution of prizes. These high acts of sovereignty were submitted to, acquiesced in, and approved of by the people of America. In congress were vested, because by congress were exercised with the approbation of the people, the rights and powers of war and peace. In every government, whether it consists of many states or of a few, or whether it be of a federal or consolidated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy, and incidental thereto is the question of prize. If it be asked in whom, during our revolutionary war, was lodged, and by whom was exercised this supreme authority, no one will hesitate for an answer. It was lodged in and exercised by congress. . . . Disastrous would have been the issue of the contest, if the States separately had exercised the powers of war. For in such case there would have been as many supreme wills as there were States, and as many wars as there were wills. Happily,

however, for America, this was not the case; there was but one war and one sovereign will to conduct it. The danger being imminent and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert or break the violence of the gathering storm; they accordingly grew into union, and formed one great political body, of which congress was the directing principle and soul.

The Articles of Confederation.

In 1776, the Second Continental Congress appointed a committee "to prepare and digest the form of a confederation to be entered into between these colonies." This committee drafted the Articles of Confederation, which when ratified in 1781 created a League of Friendship rather than a central government with powers of control over the States or the people. Each State retained "its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." In practice these delegated powers proved very slight indeed. The Confederation was little more than a continuation of the Second Continental Congress; it created a congress composed of delegations from each of the States, each delegation having one vote. This Congress made laws which could not be enforced unless the States and the people voluntarily obeyed them. It imposed taxes that it could not collect by compulsion. It made treaties that were not binding upon the States. It established departments of foreign affairs, of finance, and of war that could do nothing except with the cooperation of all the State governments. The Confederation Congress thus was in fact rather an assembly of 'Articles of Confederation, Article II.