Page:Harvard Law Review Volume 8.djvu/164

148 148 HARVARD LAW REVIEW. of New York v. Miln,^ there was a difference of opinion among the judges as to whether the statute there in question was within the power possessed by the State to enact municipal legisla- tion, — the power to legislate on matters of internal police. But both the majority and the minority agreed that the States have no- authority to pass laws which act upon subjects beyond their terri- torial limits; and that a valid State statute must be one "whose operation was within the territorial limits of the State." (Compare Barbour, J., 11 Peters, p. 139; and Story, J., 11 Peters, p. 156.) The question has thus far been discussed as if the different States had each possessed full power of sovereignty from the date of their first settlement up to the adoption of the present Federal Constitution. But it is matter of common knowledge that this assumption is without foundation. Prior to the Revolution the colonies were not thirteen separate and independent nations. Each " was a dependency and a part of the British Empire." " The Declaration of Independence was not the work of thirteen separate colonies, each acting in an assumed sovereign capacity, but of the United Colonies acting in a national capacity through their dele- gates in Congress assembled." As soon after the Declaration as there was time to ascertain and formulate the popular wish, in 1777, Articles of Confederation were adopted by Congress, and were ratified the following year by most of the colonies (including Massachusetts and New Hampshire).^ Not only is it true that Massachusetts and New Hampshire were not formerly independent nations, but it is also true that they were both subjects of the same power. Their domains did not originally belong to different sovereignties, and were not originally granted by different European Powers ; as, for example, Florida under the rule of Spain, and Georgia, subject to the dominion of Great Britain. Did the King of Great Britain, in chartering these respective colonies of Massachusetts and New Hampshire, intend to give each the right to destroy the other 1 At that time the rivers and the water-power were the important features of the country. Must not the King's grants of these two colonies be taken as each subject to the implied reservation or condition that neither prov- ince should materially change the course of streams flowing from one to the other } If such a condition can plausibly be contended I II Peters, 102. « See Pwmeroy, Const'l Law, ss. 47, 52, 53, 59. Compare Baldwin, J., 12 Peters, p. 748.