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II. THE CONTINENTAL CONGRESSIONAL ERA. On the 5th of September, 1774, a Congress of twelve colonies met at Carpenter's Hall in Philadelphia. First. What was its nature, and whom did it represent, and for whom act?

Second. Whence did it derive its powers?

Let its own journal and the official records decide. 1. The Virginia Burgesses, dissolved by Lord Dunmore, met in Williamsburg, May 26, 1774, and recommended inter alia, that deputies be appointed "from the several colonies" to meet in "General Congress at such place annually" as shall be convenient; there "to deliberate on those general measures which the united interests of America may from time to time require." Amer. Arch. (4th series, vol. 1), 350-1. Rhode Island on June 15, 1774, concurred (id. 416-7), and Massachusetts June 17, 1774 (id. 421-2), resolved that "a meeting of committees from the several colonies was proper to determine upon wise measures, to be recommended to all the colonies," etc.

The credentials of the several delegations may be seen. Amer. Arch. (4th series, vol. 1), 893, etc.; 1 Jour. Cong. 4 to 10. Each of them appointed deputies, to act for and in behalf of this colony or province.

The journal opens thus:

"A number of delegates chosen and appointed by the several colonies and provinces in North America, to meet and hold a Congress," etc.

Each colony, by its deputies, had one vote. 1 Jour. 11.

Congress issued six addresses, in all of which, but one, the name of every colony was mentioned, as by its deputies the authority for the address, thus: "The good people of the several colonies of New Hampshire," etc. (naming all). 1 Jour. 27, 31-36, 43, 55–63. And so in similar form in the others.

In the one exception to this statement, the address is to the inhabitants of the colonies, and in that, while omitting the names of the colonies in naming the deputies, they are all named in connection with the parties addressed. Thus: "We, the delegates appointed by the good people of these colonies to meet in Philadelphia in September last, for the purposes mentioned by our respective constituents," etc. This is preceded by a caption: "To the inhabitants of the colonies of New Hampshire," etc. (naming all). When the words "these colonies" are used afterward, they cannot relate to any but those named in the caption. So that there is nothing, one would suppose, to indicate any assertion of political unity in the colonies.

Judge Story, however, in his Commentaries on the Constitution (vol. 1, § 200), says: "The Congress of delegates (calling themselves in their more formal acts the delegates appointed by the good people of these colonies,") etc., and the italics, are his own.

This statement is not only historically erroneous, but calculated to mislead. The quoted form is in only one of six of the formal addresses issued, as I have shown, and the learned author has omitted the caption, which excludes the idea of unity, which his italics would emphasize, and the other five absolutely exclude the conclusion he deduces from the only one he cites.

The author then proceeds to say that the deputies acted upon powers derived from the people, "and not as the delegated agents of the governments de facto of the colonies, but in virtue of original powers derived from the people." § 201.

Under the equivocal expression "the people," the true issue may be evaded. What people? The whole of the colonies as the one people as one civil body politic? Or from the people of each and every colony, and, therefore, from all? For it is true that the powers were derived from the whole people, if derived from the people of every colony, as well as if from all of them taken as one body. Which was it? That is the question.

But the whole statement is historically inaccurate. In Massachusetts, Rhode Island, Connecticut, Pennsylvania and South Carolina, the deputies were appointed by authority of the colonial governments. In all the others, the governments had been dissolved by royal power. But in New Hampshire the deputies from all the towns met and elected its delegates "on behalf of this province;" and so in New Jersey, Delaware, Maryland, Virginia and North Carolina. In New York they were appointed by popular votes in the towns and counties. But afterwards, as colonial and State governments were established, all the deputies to the subsequent Congresses were appointed by their respective legislatures. For this let the credentials be avouched.

In every Congress, from 1774 to 1781, there is no hint in the credentials of any delegate that he represented any thing but his own colony, nor is there a symptom of any one ever claiming to represent the people of America, or any other people than the people of each separate colony. Each colony spoke its own voiceand Congress spoke the combined will of all the colonies - each voting as such, with its oue vote, through its own deputies.

2. Whence did Congress derive its powers?

It never claimed any inherent powers. It claimed to act as the organ of the colonies. It never claimed to enforce its will against a dissentient colony.

One extraordinary fact should be noted. The Continental Congress, during its seven years of existence, passed resolutions and recommendations, and expressed opinions, but never enacted a law. It passed only two ordinances, that I can find, and they merely for its own internal operations; one to regulate the clothing department, the other its treasury.

It is true, that Congress did many acts, which have been much relied on by Judge Story and others, to show the assertion of its inherent and sovereigu power, as the representative of one civil body politic. Thus it adopted re solutions as to exports; to put the colonies in a state of defense; to raise troops; to appoint a commander-in-chief and other general offi cers; to emit bills of credit, pledging the faith of the thirteen colonies to their redemption, and apportioning the quota of the emitted bills to each colony; published a declaration of causes for taking up arms; aud organized a post-office department.

I have not time to examine these details, but a few observations will suffice.

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2. No action was taken which for its real effectuation was not dependent in a large degree on the will of the separate colonies.

3. In many, if not in most cases, the separate colonies, by subsequent action, ratified what Congress had done, or so acquiesced in it, that a letter was written in 1779 by Congress justifying its action on that ground, and in the separate sanction given by each colony to the Declaration of Independence after its adoption, which virtually gave to Congress the use of the needful means of war, treaty making, etc., to sustain the independence so declared. 5 Jour. 259–267.

4. The pledge of the credit of the thirteen colonies to redeem the bills of credit was the pledge of the several colonies, for Congress could raise no money by taxation, and at once apportioned the quota of each State to pay its share. The general agent pledged the credit of its thirteen principals.

5. Washington was commissioned Commander-inChief, but in the name of all the colonies, expressed in the commission. 1 Jour. 114. The oath of all the officers was, "I do acknowledge the thirteen United States of America, namely, New Hampshire," etc. (naming all), "to be free, independent and sovereign States." 2 Jour. 400. No oath was taken to Congress or to the one people of the United States.

Much stress is laid upon the fact, that several of the colonies formed governments upon the suggestion of Congress.

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I answer, that in every case it was merely done in the form of recommendation. In the case of Massachusetts upon her request "for the explicit advice of Congress.' 1 Jour. 105-8. And in April, 1776, she changed the style of judicial writs from "George III" to "the People and Government of Massachusetts." So as to New Hampshire (1 Jour. 206, 215), and South Carolina. 1 Jour. 219. North Carolina in April, 1776, took steps without any action of Congress, and its government went into effect December, 1776. Early in 1776 Connecticut declared its form of government, and that it was a free, sovereign and independent State. And so Rhode Island in May, 1776; and New Jersey in July, 1776.

It is true, that Congress, being the organ of all the colonies, who were striving for a common safety from a common danger, was looked to by a colony proposing a new step in advance to give advice about its propriety with respect to the other colonies with whom it was acting; and May 10 and 15, 1776, Congress recommended to all the colonies to form governments (2 Jour. 158, 166), but never claimed power to direct it, or control or supervise the action taken.

On May 15, 1776 (and before the recommendation of Congress could have been heard from), the Convention of the people of Virginia met in Williamsburg and passed a declaration that no alternative to abject submission was left but "in total separation from the crown and government of Great Britain;" and this without advice asked or given by Congress. She instructed her delegates in Congress to propose a declaration that the States were free and independent, at the moment she so declared herself. She adopted the first Bill of Rights in America, June 12, 1776, for the good people of Virginia; and the first written constitution of a free commonwealth in human history on the 29th of June, 1776; (five days before the Declaration of Independence,) in which she declared all power of government in herself for her own people; her succession to crown rights by escheat; settled the territorial ques

tions between herself and neighboring States; elected her governor, and other officers, who on the 5th of July, 1776 (when the General Declaration could not have been heard of) took an oath of official fidelity to the Commonwealth of Virginia. All writs were to issue in the name, and indictments to conclude against the peace and dignity of the Commonwealth of Virginia. And in 1776 she passed an act prescribing an oath of allegiance to the Commonwealth of Virginia, as a free and independent State. 9 Hen. Stat. at L. 119.

South Carolina, in 1777, and Massachusetts in 1780, prescribed a like oath of allegiance, that each was and of right ought to be a free, sovereign and independent State.

Congress on the 24th of June, 1776, resolved, that all persons in any colony owed allegiance to its laws and were members thereof, and for levying war against it, would be "guilty of treason against such colony," and recommended to each colony to punish such treasons. 2 Jour. 217. It also asked the colonies to punish the counterfeiting of the Continental Bills (2 Jour. 217-8), and to punish the destruction of the Continental Magazines (3 Id. 330), and on the 5th of July, 1776, asked Virginia, North Carolina and South Carolina to permit the raising of troops within their limits. Id. 236. These public acts of Congress and States prove the recognition by Congress of all the real powers of government to have been in the colonies, its own inability to carry out its will, and its dependence on the separate sovereignty of the States. It could not punish the forgery of its own bills, the destruction of its own magazines, nor did it claim treason was possible against any government, save of the several colonies. In fact, in its famous declaration of October 14, 1774, already quoted, it had claimed no power, but only declared the supreme and exclusive authority of each colony.

It is a curious fact, confirmatory of these views, that the concession of the commercial power to Parliament during the colonial period did not induce any claim of its transfer to the United Colonies after independence. So that this great power, as well as that of internal government, reverted to each State, upon independence, and was held by each of them until the Constitution of 1789.

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But Judge Story, as the leader of a class of political writers, has said, that the Declaration of Independence was an act of paramount and sovereign authority;" was the "act of the whole people; " "of original inherent sovereignty by the people themselves;" "by the good people of these colonies." 1 Story on Const., § 211.

If he meant by this, that all the people, because the people of every State united in it, we should not deny, but affirm the statement. But if he meant that it was the act of one body politic, of which the colonies were fractional parts and not the multiple of thirteen colonies, of which each colony was a distinct unit, the theory is wholly unsupported by any facts in history, and is contradicted by all.

The most interesting account of the debates leading to the declaration was given by Mr. Jefferson to Mr. Madison, and published in the first volume of the Madison Papers, page 9.

On the 7th of June, 1776, Richard Henry Lee, one of the delegates from Virginia, in obedience to instructions from their constituents, moved that Congress should declare that these United Colonies are

and of right ought to be free and independent States. The resolution of instructions is to be found in appendix to 1 Tucker's Blacks. 91-2.

The substance of the debate is given by Mr. Jefferson, a part of which may be cited.

The objectors said, inter alia: "That if the delegates of any particular colony had no power to declare such colony independent, certain they were the others could not declare it for them, the colonies being as yet perfectly independent of each other."

John Adams, Lee, Wythe and others replied: "That the question was not whether by a Declaration of Independence we should make ourselves what we are not, but whether we should declare a fact which already exists;" and that by the actual hostilities, and the declaration by the King, that the colonies were out of his protection, all bonds were already dissolved, etc.

This shows that independence was already a fait accompli, and the declaration could not make, but only announce it.

Mr. Jefferson goes on to show that it was delayed for some time, until each colony should authorize its deputies to consent, as none could be bound but by its assent. He says, nine States voted for it, two against it, one was divided, and one undecided; and after the others yielded assent except one, he adds: "So that the whole twelve colonies who were authorized to vote at all, gave their voices for it; and within a few days the Convention of New York approved of it, and that supplied the void." 1 Mad. Pap. 17, 18; 1 Pitkin, 362-5; 12 Nile's Reg. 305. New York never assented by her deputies until July 15, 1776. 2 Jour. 250.

In a circular letter, written by Congress to the States in 1779, it is claimed that every State in the Union had by express assent and ratification sanctioned the Declaration of Independence, and thus had sanctioned the treaty power, the making war, and every measure needed to redeem the pledge of lives, fortunes and sacred honor. 5 Jour. 259, etc.

This evidence proves that the independence of each State preceded the declaration, and that it was made by the deputies of each State for and on its behalf, and gained its authority from the separate colonies, and none by virtue of the paramount sovereignty of Congress as the potential representative of one civil body politic, divided into thirteen subordinate provinces. In truth, it was said in debate, that if part consented to the declaration, and the others dissented, there would be a disruption between the States.

But the terms of the declaration are said to be against my view. Turn to them: "We, therefore, the representatives of the United States of America in General Congress assembled, do, in the name and by authority of the good people of these colonies," declare "that these United Colonies are and of right❘ ought to be free and independent States," that as such "they have full power," etc.

In view of the facts already stated, is it not apparent that the representatives spoke in the name and by authority of their several colonies? Judge Story, indeed, again relies on this phrase, "good people of these colonies." But if there was one sovereignty, why delay its action until a part was heard from? The part would be bound without consent, by the will of the majority, if the hypothesis assumed be true. But why does the one people declare the freedom and independence of the plurality of States? If the

united Colonies were one people, the declaration should have been, "are and of right ought to be a free and independent State."

Judge Chase, in Ware v. Hyllon, 3 Dall. 224, said: "I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent States, etc., but that each of them was a sovereign and independent State, that is, each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth."

But how entirely antagonized is this theory of the learned commentator to another fact in the history of this era.

Virginia, New Jersey, Maryland, New York and others instructed their delegates "to give their assent to a confederacy of the colonies." Congress entered on the plan June 11, 1776, matured it November 15, 1777, and it was never ratified until all the States had assented in 1781. Virginia and others qualified their assent by reserving the regulation of their internal concerns to their respective legislatures.

If the colonies were on July 4, 1776, a paramount sovereignty, why talk of forming a confederacy? What gain could be hoped for from abdicating paramount power for the imbecility of a confederate government? What right had a State to reserve its internal government from the hands of its absolute sovereign? And yet Congress, on the hypothesis of Judge Story, was urging the adoption of this feeble confederation, to supersede its absolute and paramount authority!

Without power to tax, Congress was utterly at the will of the States. Its now claimed sovereignty was, in the language of every patriot of that era, a helpless and powerless government, whose weakness would have lost independence but for the French alliance. And no one has stated more powerfully the imbecility of the authority of the subsequent confederation, which was greater than it had been before it was formed than Judge Story himself. 1 Story on Const., 4th chap.

In Penhallow v. Doane, 3 Dall. 54, the judges speak of the relation existing, during the revolution, between the colonies, as a league-based on compact or tacit consent they say that the powers of Congress were "derived from the people of each province," conveyed by each body politic separately, and not by all jointly, and that Congress had no power not given; that the powers were given by the credentials to the delegates, or by subsequent ratification, and that the States were sovereign, saving only the powers they had delegated to Congress.

In Martin v. Waddell, 16 Peters, 410, Taney, C. J., said (Story, J., concurring): "For when the Revolu tion took place, the people of each State became them. selves sovereign, and held the absolute right to all their navigable rivers," etc. See, also, Pollard v. Hagan, 3 How. 212.

But some one may say where did Congress get the power to make the French alliance and other treaties, I answer:

1. By special and general powers in the credentials of the delegates of the several colonies.

2. In their resolutions giving assent to the Declaration of Independence and to foreign alliances, by Virginia and other States.

3. In their consent to the Declaration of Independence, which asserted that power.

4. In the treaty with France it appears it was made with the colonies, and by Congress in their names. It was proclaimed by the "Congress of the United States of New Hampshire," etc. (all named), "by the grace of God sovereign, free and independent," and purports to be made with the thirteen United States of North America, viz.: New Hampshire, etc. (all named). 6 Jour. 74. etc.

WE

(To be continued.

PROVING WILLS.

E never saw the chapter relating to Surrogates' Courts, passed at the last session of the legislature, until within the last few days. We deem it fortunate that it was not approved by the Governor.

The provisions of that chapter, like the whole legislation of the Revised Statutes upon the subject, are very onerous, and we think unjust to the people.

Before the Revised Statutes took effect in 1830, the executor, or some other person interested in a will of personal estate, took it, with one of the witnesses, to the surrogate, who proved and recorded it, and issued letters testamentary to the executors therein named. This did not finally establish the will, for anybody interested could contest its validity at any time within a year. No citation was necessary. If anybody wanted to contest the will, he could file with the surrogate a caveat against its proof, when proper means would be taken to test its validity. Then the surrogate took no cognizance of a will of real estate as such, but the Revised Statutes authorized the surrogate to prove and record wills of real estate, so that they stood substantially the same as deeds duly acknowledged or proved and recorded, but they could be contested at any time afterward by anybody interested. The law is now substantially the same as to the legal effect of proving a will before the surrogate when it is not contested.

The remarkable thing is, that ever since 1830, a party who wants to get a will proved, must present his petition in writing, under oath, showing the name, age and residence of all persons having an interest under the statute of descents, or of distributions, to the estate of the decedent. The surrogate must enter an order in writing, for the issue of citations under seal, which must be served by delivery of a copy on those in the county eight days before the return day, and on those out of the county fifteen days, and on those out of the State by publication six weeks. On infants, under fourteen years, the service must be personal, and also on the person in charge of the infant. On the return day proof of service must be made, an order entered appointing, on written consent, special guardians to the minors, and a further order for the proof of the will is then made and entered.

Thereupon two long depositions of the witnesses are generally made in response to a single interrogatory of the surrogate. The orders, depositions and will are recorded, and the petition, citation and affidavits are filed, and an order is entered adjudging the will duly executed.

Now what is all this parade of citations and service for? Nothing, absolutely nothing. The only good, in the nature of things, it can do, is to notify anybody that wants to contest the will. It appeared to me at the beginning, in 1830, unreasonable and very unjust to throw such a burden upon the estates of deceased

persons, and so it has looked ever since. The only case when a citation can be called for, is when it would notify some one ignorant of the will, who wanted to contest it. There is a possibility, but scarcely a remote probability, that such an one can be found. I was surrogate nearly five years, and not one contestant was brought forward by citations in that time in Suffolk county. My predecessor for ten years, told me that he never had a single contestant who would not have been so, if no citations had issued. I have made inquiries in other parts of the State, and have never heard of one contestant that was brought forward by a citation. It is doubtful if anybody, during the fortyseven years this strange law has been in force, was ever brought forward as a contestant by a citation. Then why should the trouble and expense of these citations be thrown upon the estate of every man who leaves a will? It would look as if it were thought essential to give validity to the will, that it should be proved on notice to every one that might have inherited without a will, but it is not so. A will of real estate gives a perfect title without being proved or recorded, and it only gains by such proof and record, what a deed does by acknowledgment and record. A will of personal property can be contested at any time within a year after it has been proved and recorded, the same as before the Revised Statutes.

It is, therefore, a mistake to assume that there are any rights existing between the legatee or devisee on the one hand, and the next of kin or heir on the other, which are to be cut off by the proof of the will on notice. A will gives as perfect a title as a deed.

I never heard at the beginning, or since, wherein any thing was to be gained by citing all the next of kin on the uncontested proof of a will of personal property, or what profit it would be to cite all the heirs on the proof and recording of a will of real estate, where no one contested it. Much was said in those days about the importance and elevation to which the Surrogates' Court had attained under the Revised Statutes. It was then, and till lately has been a court of fees, and the fees and expenses attending these citations were certainly very burdensome to be paid out of the estates of testators, and, of course, principally by widows and orphans.

Now the trouble and expense of obtaining and serving citations, tell very heavily against the benignity of the widows and orphans' court, while cords of manuscripts, petitions, citations, affidavits and orders have accumulated in the offices of these courts, merely to prove and put upon record the will and proofs, the only thing that can be of any utility, and these cannot be used by any party on a trial when the will is contested.

We think a proceeding like this for the proof and recording of wills cannot be found in any State or country cognizant of the common law.

When I was a member of Assembly in 1854, I represented the case to the House, and it readily passed a bill to change the law in relation to the proof and record of wills, so as to dispense with citations when the will is not contested, and I have no doubt it would have passed the Senate, had not illness prevented my attendance before a committee of that body, so that the bill was not brought before it.

Of course we should be sorry to see the proposed new law go into effect. Its main features are the same as the present law. It does not lessen the trouble and expense of proving a will that is not contested, while

it makes but little difference as to the effect of such proof.

The clerkship may be proved by the certificate of the attorney with whom the same was served, or in case of their death or removal from the State, by other

After writing thus far we stopped and made inquiries personally or in writing, in ten or more of the principal | satisfactory evidence. The time of study allowed as counties of the State, as to what proportion of wills presented for proof are contested, and the result is that on an average, considerably less than one in thirty is contested. Probably the proportion for the last forty-seven years has been less than it is now.

Thus we see that the proceeding for the proof of a will not contested, is practically the authentication and recording of a document not disputed by anybody.

When a will is to be contested, of course, the parties interested will be brought by citations, or otherwise appear, and it must be very rare, if it ever occurred, that a citation would reach a contestant who had never heard of the death of the testator.

We cannot but regard this as a remarkable case of theoretic legislation that ought to be changed. GEORGE MILLER.

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No person shall be admitted to practice as an attorney or counselor in any court of record in this State, except as provided in these rules, without a regular admission and license by the Supreme Court, at a General Term thereof, after a satisfactory examination, conducted by the judges of such court, or by at least three practicing lawyers of at least seven years' standing at the bar, to be appointed for one year at the first General Term held in each year in the respective departments. The members of such committee of examination may be removed at any time by the court, and vacancies for any cause, or non-attendance, may be supplied during the year.

II.

To entitle an applicant to an examination as an attorney, he must prove to the court,

1st. That he is a citizen of the United States, twenty-one years of age, and a resident of the department within which the application is made, and that he has not been examined in any other department for admission to practice, and been refused admission and license, within three months immediately preceding; which proof may be made by his own affidavit.

2d. That he is a person of good moral character by the certificate of the attorneys with whom he has passed his clerkship, but such certificate shall not be conclusive, and the court must be satisfied on this point from examination and inquiry.

3d. That he has served the clerkship, or pursued the substituted course of study prescribed by the rules.

a substitute for any part of the clerkship may be proved by the certificate of the teacher or the president of the faculty under whose instructions the person has studied, in addition to the affidavit of the applicant; the proof must be satisfactory to the presiding judge of the court, who alone shall make the order allowing a deduction from the regular term of clerkship by reason of such studies.

III.

No person shall be admitted to an examination as an attorney unless he shall have served a regular clerkship of three years in the office of a practicing attorney of the Supreme Court after the age of eighteen years. An allowance of one year shall be made to applicants who are graduates of any college or university. Any portion of time, not exceeding one year, for graduates receiving the foregoing allowance, and two years for other applicants, actually spent in regular attendance upon the law lectures or the law school connected with any college or university of this State having a department organized with competent professors and teachers in which instruction is regularly given, shall be allowed in lieu of an equal period of clerkship in the office of a practicing attorney of the Supreme Court, but in no case shall an applicant be entitled to an examination as an attorney, without having served a clerkship in the office of a practicing attorney of the Supreme Court for the period of at least one year.

IV.

It shall be the duty of attorneys with whom a clerkship shall have been commenced, to file a certificate of the same in the office of the clerk of the Court of Appeals. The clerkship shall be deemed commenced from the time of such filing, and a certified copy of the certificate, and of the filing, shall be produced at the time of the application for examination.

V.

The examination and admission provided for in the previous rules shall entitle the applicant to a license to practice as an attorney only. At the expiration of two years from the time of his admission as attorney, he may apply to the General Term for examination as a counselor. Upon such application he shall, by his own affidavit or otherwise, satisfy the court that during two years since he was admitted as attorney he has been actually engaged in the practice of law as a clerk in the office of a practicing attorney, or otherwise, or in attending a law school or law lectures, as provided in Rule III. It shall be the duty of the court to cause an examination of the applicant to be made either by the judge holding the court or by a committee as provided in Rule I, and if satisfactory, to license him to practice as a counselor.

Any person admitted as an attorney of the Supreme Court may practice as an attorney and counselor in county courts.

VI.

Persons who have been admitted as attorneys in the highest courts of another State, may be admitted to examination as attorneys and counselors if they have served a regular clerkship of one year in the office of a practicing attorney of the Supreme Court of this

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