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sentatives of the province of the Massachusets Bay, in the month of January, 1768, to the earl of Shelburne, (who was at that time one of his majesty's principal secretaries of state), it is recited in these words; Sir William Jones, an eminent jurist, declared it as his opinion, to king Charles the second, That he could no more grant a commission to levy money on his subjects in Jamaica, without their consent by an assembly, than they could discharge themselves from their allegiance to the crown.

"In this account we see that this opinion related to Jamaica; which was a conquered country. The only remaining doubt therefore is, whether sir William Jones, when he gave this opinion, considered Jamaica as continuing still in its original state of a conquered country, or whether he supposed its political condition to have been altered by the events that had happened to it since its conquest, (such as the withdrawing of the Spanish inhabitants from it, and the accession of Englishmen to it, who were invited by the king's proclamation to come and settle in it), so as to have been thereby converted into the political condition of a colony, or country that had been originally planted by Englishmen under the king's authority; which is the light in which lord Mansfield seems to think that island ought to have been considered in the year 1722, when sir Philip Yorke and sir Clement Wearg gave their opinion concerning it. But there may be a great deal of difference between the condition of Jamaica, in the year 1722, and its condition in king Charles the 2d's time, about the year 1677, or 1678, when this opinion probably was given and the reasons for considering it as having changed its political state from that of a conquered to that of a planted country, or colony, were much stronger in the year 1722 than at the other period. For during the greater part of Charles the second's reign, and therefore, probably, when this opinion was given, the inhabitants of Jamaica were governed only by a governor and council, without an assembly of the people and consequently king Charles, when this opinion was given, had not yet, (by granting them the privilege of being represented by an assembly with a power to make laws and impose taxes for the public uses of the island), divested himself of his antecedent right to impose taxes on them, if such a right had really belonged to him. It seems therefore not unlikely that sir William Jones, when he gave this opinion, might consider the island of Jamaica as continuing still in its original state of a conquered country, notwithstanding most of the Spanish inhabitants had left it: and, if he did consider it in that light, it is evident that this opinion of his would, in such case, be an opinion exactly in point to contradict lord Mansfield's doctrine of the king's sole legislative authority over conquered countries.

And, agreeably to this conjecture, I find, in another account of this opinion, that sir William Jones did consider Jamaica as a conquered country, and expressly called it so,

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and yet denied the king's authority to impose taxes on its inhabitants without the consent of an assembly. For in another letter of the same assembly of the representatives of the province of Massachusets bay, written in the same month of January, 1768, as the former letter to lord Shelburne, and addressed to Dennis De Berdt, esq. their agent in England, they speak of this opinion of sir William Jones in these words: There was even in those times [the times before the Revolution] an excellent attorney-general, sir William Jones, who was of another mind, and told king Charles the second, that he could no more grant a commission to levy money on his subjects in Jamaica, though a conquered island, without their consent by an assembly, than they could discharge themselves from their allegiance to the English crown.' If this last account of sir William Jones's opinion is the true one, it is evident that he considered Jamaica as continuing still in the condition of a conquered country, and consequently that his opinion with respect to the king's power over conquered countries is directly contrary to lord Mansfield's.

"The other opinion which I mentioned as material to our present enquiry was that of Mr. Lechmere, a lawyer of considerable eminence, and esteemed a man of great integrity, who was attorney-general to king George the 1st. This opinion I had occasion to mention to you in our last conversation, just before I begun the account of the imposition of the duty of four and a half per cent. upon goods exported from Grenada by the king's letters patent of July, 1764. It is shortly thus. When the British ministers of state, in the year 1717, had a design of advising the king to impose, by his royal prerogative, the said duty of four and a half per cent. on goods exported from the island of Jamaica and the little islands of Anegada and Tortola, which are situated at a small distance from St. Christopher's, they consulted Mr. Lechmere, the attorney-general, upon the legality of the intended measure. And be, thereupon, honestly told them, that the person who should advise his majesty to take such a step, would be guilty of high treason.' But I do not know whether he considered Jamaica as still continuing in the state of a conquered island, or not. If he did, this opinion of his would be an opinion exactly in point to our present subject, and directly contrary (as well as the opinion of sir William Jones, according to the last account of it,) to the doctrine of lord Mansfield concerning the sole legislative authority of the crown over conquered countries.

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"These two respectable opinions, against the said supposed legislative authority of the crown, may fairly be set in opposition to the opinion of sir Philip Yorke and sir Clement Wearg, so much relied on by lord Mansfield, in support of it.

"You now, I hope, are satisfied that lord Mansfield's peremptory assertions, that no doubts had ever been entertained by any lawyers, before the said case of Campbell

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and Hall, concerning the king's sole legislative authority over conquered countries,' are not quite agreeable to the truth, but that some lawyers of character in former times have presumed to entertain a different opinion, and even to tell the king's ministers that they did so. And consequently you should shake off from your mind that over-great awe and deference to that learned lord's opinion which the peremptory manner of his making those assertions had impressed upon it, and should boldly venture to entertain that opinion upon the subject which, upon the full enquiry you have made into it, appears to you to be the most reasonable.

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"F.-I will endeavour to do so, as far as I am able. But, I protest, I find it difficult; as his authoritative manner of making these as sertions does still retain some influence over my mind, notwithstanding you have now convinced me that they are neither altogether true, nor decisive of the matter in question, if they were true. However, upon the whole, 1 do venture to conclude that the reasons he has given in support of his opinion, that the king alone has a legislative authority over conquered countries,' are far from being sufficient to maintain it. I should therefore continue to hold the opinion which at first appeared to me most reasonable, to wit, that the king and parfament conjointly, and not the king alone, had a right to make laws for the inhabitants of conquered countries,' and to impose taxes on them, if it were not for one remaining difficulty, concerning which I must desire the assistance of your opinion. This difficulty is grounded on the authority which lord Mansfield's doctrine may, perhaps, derive from the very circumstance of its being his opinion, and having been delivered by him, as such, in his judicial capacity on a question that brought the subject regularly before him for his decision; more especially, if we consider the silence of the other judges of the court of King's-bench, when lord Mansfield delivered this opinion, as implying their concurrence with him in it. For in this case it may be said, that, on the only occasion on which this doctrine of the king's sole legislative power over conquered countries' has been brought into question before an English court of justice, it has been decided in favour of the crown by the unanimous opinion of all the judges of the court; and that, whatever the law might be before, such a decision must be considered as settling it for the future in favour of the said power of the crown, or must be a peremptory guide to all future courts of justice in their decision of the same question, as often as it shall occur before them. I should be glad to know, therefore, what you think of this conclusion, and whether by the rules observed by English courts of justice with respect to points already decided by the same or other courts, such a question ought to be considered as having been decided for ever in favour of the crown by this one decision of

lord Mansfield and the court of King's-bench. If it is to be so considered, I must needs think that lord Mansfield and his brother judges will, by that opinion of theirs in their judgment on the case of Campbell and Hall, have, indirectly, made a law of the most capital importance to Great Britain and the British domi

nions.

"E.-Your question is a very proper one, and not a very easy one to answer; there being no express law, nor even constant usage, that ascertains, in all cases, the degree of deference which is to be paid by courts of justice to the former judicial decisions of the same or other courts of justice. And we have seen lord Mansfield himself, since he has been chief justice of the King's-bench, and his brother judges of that court, in more than one instance, determine a point of law in a manner directly contrary to the determination of it by all the judges of the same court of King's-bench on a former occasion, though the said former determination had been acquiesced in by the party against whom it had been made, and had been taken and reputed for good law ever after, till the new case in which lord Mansfield and the other judges of the court of King's-bench determined the point in a different manner. I particularly remember an instance of this kind in a case in which the names of the parties were Wyndham and Chetwynd, containing the qualifications necessary to the three witnesses who, by a certain statute made to prevent frauds, are required to attest and subscribe a will of lands, in order to its validity. But the general rules concerning the authority of judicial determinations of points of law I take to be as follows.

"In the first place, where a point of law has been agitated in all the courts through which it may be carried by appeal, or writ of error, and has been finally determined by a judgment of the highest court of appeal, that is, of the House of Lords, (for that is, in Great Britain, the highest court of appeal both in matters of law and equity;) such a determination is reckoned to be of almost as much authority with respect to the point so settled, as an act of parliament; or, at least, it is so considered by all the ordinary courts of justice, though, perhaps, the House of Lords itself wight, on another occasion, if they thought there was very strong ground for it, determine it in a different manner.

"In the second place, when a point of law has been fully argued, and solemnly determined by one of the four great courts of Westminster-ball, that is, the court of Chancery, the court of King's-bench, the court of Common Pleas, and the Court of Exchequer, and the party, against whom the judgment has been given, has acquiesced in it, and has forborn to bring an appeal, or a writ of error, into the next higher court of justice, to which the right of revising the judgments of the first court, and correcting the errors in them, be

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longs; and such forbearance does not arise from the poverty or inability of the said party to bear the expence of prosecuting such writ of error, or appeal to the next higher court; such a determination acquires a great degree of respect and authority in Westminster-hall, and is usually adopted and followed by the courts of justice in their subsequent determinations of the same point of law, as often as it comes before them. Yet it is not of quite so great authority as a determination of the House of Lords upon a question brought there in the last resort and we have sometimes seen such determinations overturned by subsequent determinations of the same or other courts of justice in Westminster-hall; as was done in the court of King's-bench in the case of Wyndham and Chetwynd, which I just now mentioned to you. Yet such overturnings of the former solemn determinations of courts of justice are very unfrequent, and are not in general approved of, though, perhaps, in some very strong cases, where the former determinations have been made upon very wrong principles, they may be justifiable.

"In the third place, when a matter has been fully argued before one of the courts of Westminster-hall, and a solemn judgment has been given upon it in favour of one of the parties; and in the said judgment more than one point of law has been determined in favour of such party; and the losing party acquiesces in the said judgment, and forbears to bring a writ of error for a reversal of it in a higher court of justice; the determinations of such points of law acquire a considerable degree of weight and authority in the estimation of lawyers and subsequent courts of justice, but yet are not quite so much respected as the determinations in the two former cases: and for this plain reason, that, as more than one point of law are determined at the same time in favour of one of the contending parties and against the other, it is uncertain, whether the losing party, when he acquiesces under the whole judgment, and forbears to bring a writ of error in a superior court to get it reversed, acquiesces in all the points of law determined against him, or only in some, or one, of them; because, if only one of them is rightly determined against him, the judgment against him would be affirmed upon a writ of error, as much as if all the points had been so determined. This uncertainty concerning the particular points of law, in the determination of which the losing party may be supposed to acquiesce, takes from the determinations of each of the points of law, that are determined against him, some part of the weight and authority which such determinations would otherwise derive from his acqui

escence.

"And fourthly, if a matter has been fully argued before a court of justice in Westminsterhall, and a solemn judgment has been given upon it in favour of one of the parties; and in the said judgment one, or more than one, point of law has been determined in his favour, and another

point, or points of law have been determined against him; and the losing party acquiesces in the said judgment, and brings no writ of error to reverse it; such an acquiescence of the losing party can operate as a confirmation of only those points of law which are determined against him, and not of those which are determined for him. In such a case, therefore, there will be several determinations of points of law, all deliberately made by the same judges and in the same cause, which will have different degrees of weight and authority, namely, the points determined in favour of the losing party, and the points determined against him. For the points determined in favour of the losing party will have that degree of weight and authority which arises from the respect due to the learning, abilities, and integrity of the judges who have decided them, and to the deliberate manner in which they have been considered and discussed before they were decided; but those which are determined against the losing party will, besides the weight and authority arising from the foregoing circumstances, be entitled to an additional degree of respect arising from the acquiescence of the losing party, which will shew that he, and his counsel learned in the law, despair of having those points determined in a different manner, if they were to bring a writ of error for the purpose.

"These seem to me to be the different degrees of authority which are attributed by the English courts of justice to the aforesaid different sorts of judicial determinations of points of law by former judges: which, I presume, you will agree with me in thinking reasonable.

"F.-1 enter very readily into these distinc tions between the different sorts of judicial determinations, and think them very natural and reasonable. And, according to this gradation of them, it seems to me that the opinion of lord Mansfield, delivered in the case of Campbell and Hall, concerning the sole legislative authority of the crown over conquered countries, (even supposing the other judges of the King's-bench to have concurred with him ia it,) must be placed in the fourth, or lowest class of them. For in that case there is no room to infer any thing, from the acquiescence of either of the parties, in favour of that opinion. For, as to the defendant Hall, who was the losing party, all that can be inferred from his acquiescence in the judgment given against him in that action is, that he and his counsel acquiesced in the opinion of the Court upon the 2d point, of the immediate operation of the king's proclamation of October 1763, as a bar to the exercise of his antecedent legislative authority,' and despaired of having it otherwise determined, if he should have brought it into the House of Lords by writ of error. And as to the plaintiff Campbell who gained his cause, he could not bring a writ of error to reverse a judgment that was given in bis favour. So that the opinion of lord Mansfield upon that first point must, indeed, be considered as the opinion

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of that learned lord, and, perhaps, of the whole court of King's-bench, upon a point that had been fully argued before them, and must be entitled to all the respect which is due to it on that account, but cannot derive any additional weight from the acquiescence of either of the parties under it; that is, it must be a judicial decision of the lowest of the four classes of judicial decisions which you have been just now describing.

"E.-It is exactly so. The opinion of lord Mansfield upon that first point is a decision of that fourth and lowest class. And therefore I suppose that it would not be considered by the same or any other court of justice in Westminster-hall, on any other occasion in which the same point, of the king's legislative authority over conquered countries,' should occur, as being absolutely binding and decisive of the question, so as to be entitled to the confirmation of such court of justice, though the

reasons on which it was founded should be entirely disapproved by the judges of which such court should be composed; since we have seen, in the case of Wyudham and Chetwynd, (which was determined by lord Mansfield him self) that even a decision of the second class is not always so considered. But yet it would certainly have considerable weight with the judges of such subsequent court of justice, so as to induce them to give judgment agreeably to it, if they were only in a state of doubt concerning the validity of the reasons on which it had been grounded, and did not thoroughly disapprove them. So that I am afraid we must allow, that (weak and ill-grounded as it ap. pears to you and me,) this opinion of lord Mansfield, concerning the king's sole legislative power over conquered countries, is a temporary judicial determination of that question in favour of the prerogative of the crown. But, as you rightly observed, it is a decision of the fourth, or lowest, class of the several sorts of judicial determinations above described.-But I hope your curiosity is now satisfied with respect to this important question of law, concerning the supposed sole legislative authority of the crown over conquered countries, which, I think, we have very sufficiently discussed. "F-My curiosity is, indeed, satisfied on this subject but the pleasure I have had in the enquiry is allayed with some mixture of uneasiness arising from the weight that may be thought to belong to that opinion of lord Mansfeld. For how can any lover of liberty and the English constitution (as I most sincerely profess myself to be) not be sorry to find, that the only judicial decision that has been made upon the subject, has ascribed to the crown

alone, without the concurrence of the parlia ment, a power to make laws and impose taxes at pleasure on the inhabitants of all countries that are conquered by the British arms?I therefore hope, either, that the law upon this subject will soon be altered by an express act of parliament for the purpose, or that the question may again be brought under the con sideration of some court of justice, and be there determined in a different manner, as the Chetwynd, was determined, by lord Mansfield case just now mentioned, of Wyndham and himself and the other judges of the King'sformer determination of the same point of law bench, in a manner directly contrary to a in the same court of King's-bench, though the

said former determination had been a decision

of the second class. For it may be of terrible consequence to the freedom of the English constitution to have so enormous a power fixed permanently in the possession of the crown,

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'F-I heartily join with you in these wishes: but doubt a little whether they are likely to be soon accomplished. However, if this question were again to come before a court of justice, and the merits of the cause were to turn singly upon the decision of it, (which was not the case in the action of Campbell against Hall,) I can hardly persuade myself that the judges of any court in Westminster-hall would think themselves bound to determine it agreeably to lord Mansfield's opinion, merely through deference to that opinion and without any new reasons that should influence their own judgments in favour of it; seeing that the reasons alledged by lord Mansfield in support of it have appeared, upon examination, to be so very weak, and that its authority as a judicial decision is two degrees lower than that of the case in the court of King's-bench, above alluded to, (which is called the case of Ansty and Dowsing,) which was overturned by the same court in the subsequent case of Wyndham and Chetwynd, that case having been a decision of the second class, and this being only of the fourth. But this is all matter of conjecture, and consequently not worthy our further consideration." Canadian Freeholder; a work of which Dr. Watson, the eminent bishop of Llandaff, has very truly said (Note to Assize Sermon preached at Cambridge in the year 1769) that it is replete with sound and perspicuous reasoning.

With respect to the application of the revenue arising from the four and a half per cent. duty, see some discussions in the House of Lords on April 6, 1802, and in the House of Commons on March 30, 1802; on July 2, 1804, Parl. Deb. vol. 2, p. 902, and on May 8, 1809, Parl. Deb, vol. 14, p. 409.

VOL. XX.

551. The Trial of ELIZABETH, calling herself Duchess Dowager of KINGSTON, for Bigamy:* before the Right Hon. the House, of Peers, in Westminster-Hall, in full Parliament assembled, 15th, 16th, 19th, 20th, and 22d Days of April: 16 GEORGE III. A. D. 1776. [Printed under an Order of the House of Lords.]

Monday, April 15, 1776. In the Court erected in Westminster-hall, for the Trial of Elizabeth Duchess Dowager of Kingston, for Bigamy.

ABOUT ten o'clock the Lords came from

their own House into the court erected in Westminster-hall, for the Trial of Elizabeth duchess-dowager of Kingstou, in the manner following:

The Lord High Steward's gentlemen attendants, two and two.

* See the Trials of Mary Moders, vol. 6, 273, and of Fielding, vol. 14, p. 1327, for the like offence.

"REX v. DUCHESS of KINGSTON. +" "Mr. Wallace had moved on the part of the defendant, for a Certiorari to be directed to the justices of Oyer and Terminer, at Hicks's-hall, to remove into the Court an indictment found against her, at the sessions there, for bigamy; and, upon the motion, the court granted the writ.

But now lord Mansfield took notice to Mr. Wallace, that the motion was irregular. For a defendant has no right to remove an indictment of felony from Hicks's-Hall, without the consent of the prosecutor; and in this case there was no consent, therefore his lordship said the writ issued improvidè, and must be superseded.

The clerks assistant to the House of Lords,

and the clerk of the parliament.

king's commission to the Lord High Steward,
Clerk of the crown in Chancery, bearing the
and the clerk of the crown in the King's-bench.
The masters in Chancery, two and two.
The judges, two and two.

The peers eldest sons, two and two.
Peers minors, two and two.

Chester and Somerset heralds.

Four serjeants at arms with their maces, twe and two.

sented to ber being bailed, as there could be no doubt (he said) of her appearance to answer to the indictment.

"Lord Mansfield. Though we should undoubtedly have bailed her, it is better to take it as upon the consent of the prosecutor; and she must be bound to appear in the House of Lords when required, to answer to the indictinent, as well as to appear in this court. But as there is nothing against her in this court, her appearance here may be dispensed with for the future upon motion, without giving her the trouble of actually appearing here in court any more.

Bail was taken accordingly, herself being bound in 4,000l. and each of her four bail in 1,000l.

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