The consequence in the very next charter was a grant of a free fishery. In the charter granted to Mr. Penn there is this remarkable clanse, that no imposition shall be levied on the colony without consent of the proprietor and assembly, but by act of parliament in England. Calais was a colony. [Lord Mansfield. Was Calais a colony? It was ceded by the treaty of Bretigny.] Lord Vaughan, 290, states writs of Non Molestando, issuing out of Chancery to the mayor of Calais, and divers writs of error. With regard to the other parts not colonized, all mandatory writs issued hence as they might do to any part of the king's dominions. Lord Vaughan, but without precedent, says, writs of error might issue to Ireland; I don't find however that remedia! writs ever issued, but mandatory writs. The conquest of Wales, by Edward the first, has already been very fully considered, and Í find no reason to depart from the ground then taken. The language of that king was that every part of his dominions not in his possession was feudatory to him, quia in proprietatis do'minium totaliter conversa et tanquam pars ⚫ corpori annexa et unita.' From the conquest no instance of any but the legal authority exercised. The conquest of Ireland is the next. Co. 4th Inst. says that H. 2 ordered the laws kept in England to be observed in Ireland, and that he sent a transcript. Leland considered this as merely declaratory of the necessary consequences of the laws already received." In Harris's Hibernia, from the records, a grant to Felix Stephens, with the wardships: this could not have been constituted without manner of recovering according to the laws of England. Lord Holt says, (which concurs with this argument,) it was not the mere conquest, but the subsequent settling, which let them into the same rights with the other subjects. In Mr. Petit, 80, to shew the Commons of England sat separate before the 37 H. 3, a register is cited. In the 28th of Henry the third, by the queen regent to the archbishops, bishops, &c. of Ireland, to assemble. Therefore Ireland, Wales, Scotland, all partook of the constitution; all were and are exempt from taxation by prerogative. I have spoken already of Pensylvania; the same argument will apply to the other colonies; the same to Grenada. But secondly, even if the colonies are not exempt from such taxation by prerogative, except the king waive and renounce it, has not the king barred his right? The capitulation requires liberty of selling lands. They are allowed to sell them to British subjects. They desire the laws of Antigua and St. Christopher's, which, except a few local ordinances, are the same as in England, and they are promised in answer that they shall be considered as British subjects. October 7, 1763. That all persons may rely on the royal favour of Great Britain till the assembly can be got together, courts of justice are to be erected, with authority over causes criminal and civil, as near as may be to the laws of England. Then in March it is taken for granted that they have relied on the encouragement and as surances of the former proclamation, and a survey and distribution of lands is ordered. Then by the patent creating Mr. Melville governor of Grenada and the other islands, he is ordered to call an assembly as soon as possible, for the purpose of making laws. I can see nothing stronger than the language of the proclamation. That proclamation was said to be executory. "The calling an assembly is merely discretionary in the governor." Shall the effect of the proclamation be suspended on that event? Must we construe, "I give the law of England until you have an assembly" to this, "You shall not have the laws of England till you have an assembly?" The legislature of the colonies might make such addition of local ordinances as they should think fit. One of the benefits is this proclamation. On what authority was the proclamation? The king had no right to levy the tax 20th July 1764, unless under the patent in April. We need only compare the dates. But it is said there is no law at all. If the king has not, who has? I answer, the supreme legislative power of the state. The stamp-act prevailed at that time. It is a principle in contracts between political bodies contracting, still more necessary than between private persons, that the grant once made, can never be recalled, and cannot be released till the conditions of the contract are broken by the one or the other. This compact is what every speculative writer requires in his closet; what practice requires in all ages between nations; and which mutually and irreversibly bound both parties. As to the island of St. Christopher's, the opi nion of lord Hardwicke and sir E. Northey is observable. They certify they have prepared a draught of several laws of four and a half per cent. on the conquered part of St. Christopher's, as far as they thought the condition would permit, conformably to the proclamation 1703, which was in the time of the war. Sir Philip Yorke, in the year 1722, and sir Clement Worge, attorney and solicitor generals, were asked how far the king could, by his prerogative, levy, a tax on the island of Jamaica. They answered, that if Jamaica is still to be considered as a conquered country, the king has that right; but if it be in the situation of the other islands the tax cannot be levied, unless by act of assembly, or of English parliament. [Lord Mansfield.-I believe your report is wrong. It was said the tax was expedient. If it is meant that it is expedient to them to have their money taken from them (but I cannot conceive how that should be) the tax is very expedient: but I have no doubt the Court will consider whether it is lawful, and upon that ground rest, with good expectation, the cause of the plaintiff. Lord Mansfield.They allow the validity of the letters patent of 1764, so far as they annul the poll duty; this comes in lieu of it. Note, It seems it was never paid after the conquest, and there was an interval of two years. Mr. Hargrave. My lord; when I consider the great importance of the questions arising in this cause, and how ably and learnedly they have been argued by the gentleman on the other side, I find myself under extreme difficulties; and I wish, that the task of auswering such learned arguments had fallen upon some person more capable of acquitting himself of it than I am. Two questions have been made in this cause; one is a general question, Whether the king by his prerogative has a right to tax a conquered country?-The other is a more particular question; and that is, Whether the island of Grenada at the time of imposing the duty of four and a half per cent. was to be considered as a conquered country? If the king of France makes a conquest, the sovereign of course, as soon as the conquest is made, assumes the sole legislation of the people conquered. In the case of a mixed government like ours, the legislative power over a conquered country may be in the king only, or in the king and the two Houses of Parliament. It might be a the legislative power ought to reside in such question of some difficulty to decide, in whom case according to our constitution, if there were no precedents of law to guide and direct us. But unless I am greatly deceived the point has already been determined: and all the autho rities which are to be met with upon the subject, uniformly concur in the doctrine, that the power of imposing laws upon a conquered country belongs to the king as a part of his prerogative. It has been objected by your lordship, that the cases which were cited upon the former argument, as well as those now cited by my learned friend, were so full of inaccura cies, that they were not much to be depended upon. So far as regards historical facts, I agree, that the observation is just: but with respect to the principle of law, the cases are clear, strong, and uniform, and all of them ascribe to the king the prerogative of imposing laws upon a conquered country in terins the most explicit. What countries fall under that description, whether Ireland, Wales, or other countries which have been mentioned fall under it, the authorities differ about: but in respect to the doctrine of law there is not the least disagreement. The earliest case, in which I find any thing upon the subject, is Calvin's case; and I will state to the Court so much out of that case as is applicable to the present subject. Lord Coke mentions in Calvin's case, that a distinction bad been taken between countries vested in the king by conquest and countries coming to him by descent. This gave occasion to an enquiry, whether the king had greater powers over the former than over the latter; and it was agreed by the judges, that he had; and that on a country obtained by conquest he bad authority to impose laws. In reporting this doctrine, lord Coke mixes with it another distinction between Infidel and Christian countries, which is now justly exploded. But this ought not to prejudice the other part of the doctrine, which is not liable to the same objection My lord; it is not necessary to debate generally, what is the effect of conquest, or what rights the conqueror has over the people con quered. To destroy, to kill, to despoil and oppress, are pretensions I should be shocked to argue in favour of. But there are some rights which must be allowed to the conqueror; and he has, as I apprehend, a right of making laws to govern a conquered people. If, indeed, he consents to stipulations in their favour, they controul the legislative power of the conqueror; and ought to be rigidly observed. But if there is a submission without any particular terms, then the full sovereignty vests in the conqueror; and he has the legislative power without any other rules to direct him in the exercise, than those which natural justice and equity prescribe. Such is the general doctrine in respect to a conquered country; and under the qualifications I have stated the rights of the conqueror to exist, I apprehend my learned friend will scarce think proper to deny them.But though the general proposition may be true, still little can be inferred from it to explain, Mr. Hargrave. My lord, I cite the case, not what powers and what prerogatives the king of on account of the distinction between Infidels Great Britain is entitled to exercise over the and Christians, but for the doctrine assented to countries he obtains by conquest. The general by the judges in respect to the right of the king doctrine only shews, that the conquered coun- over all conquered countries. Though the dif try becomes subject to the dominion of the peo-ference derived from the religion of the counple conquering: but how such dominion is to try may be absurd and unreasonable, still there be exercised, in what persons the powers of may be other parts of the case not liable to oblegislation are vested, depends upon their ownjection. Lord Coke, describing the king's power laws and customs, and the form of their own over a conquered country, says, "He may at Constitution and government. pleasure alter and change the laws of the for the honour of lord Coke. kingdom: but till he does make an alteration the ancient laws remain." So that according to the opinion in this case, the king has the complete power of changing the laws of the conquered people, as he thinks proper and convenient. He may give them the laws of England or any other laws: but if the English laws are once given, from that time the king's prerogative of imposing laws ceases; and lord Coke agrees, that then their laws can only be changed by act of parliament. This doctrine from Calvin's case is of importance: for it is the opinion of all the judges, and not altogether extrajudicial, being an observation on a distinction, which had been made by the counsel against Calvin; who distinguished between countries acquired by conquest, and kingdoms coming to the king by descent; and asserted, that countries of conquest are parcel of Eng land, because acquired by the arms and treasure of England, and that such countries immediately become subject to the law of England. But this is not merely the doctrine of lord Coke's time, the same prerogative has been attributed to the crown in all cases, in which it was necessary to consider the subject both before and since the Revolution. Indeed no case has arisen, which required a judicial opinion; but there have been several cases, in the argument of which the doctrine in Calvin's case has been mentioned and observed upon; and in all of them it has been asserted both by the judges and counsel as law. The first case I shall mention is Dutton and Howell, Hill. 3 James 2, in the King's-bench, and afterwards in parliament. It is in 3 Mod. 159, and in Shower's Parliamentary Cases 24. This case was an action brought against the governor of Barbadoes for false imprisonment; and the counsel for the plaintiff agreed, that, according to Calvin's case, the king may impose laws upon a conquered country, but denied that Barbadoes was a conquest. The counsel for the plaintiff, whose interest required, that the doctrine should be controverted, if there was a chance of doing it with success, assents to it without hesitation. The words of Shower are, "It was agreed that according to Calvin's case, upon the conquest of an infidel country, all the old laws are abrogated eo instante, and the king imposes what laws he pleases; and in the case of the conquest of a Christian country he may change them at pleasure and appoint such as he thinks fit." The reporter goes on and says, "though Coke quotes no authority for it" (which is a mistake of the reporter, for lord Coke cites the case of Ireland and other instances in which the crown had exercised such a power)" this may be consonant to reason. But it was denied that Barbadoes was a conquest. It was a colony or plantation, and that imports the contrary, and by such names these plantations have always gone in letters patent, proclamations and acts of parliament." The book then cites some authorities to prove, that Barbadoes was a plantation or new settlement of Englishmen with the king's consent. Here your lordships will observe, that the sole question was, whether Barbadoes should be deemed a colony or a conquest; and it seems to have been agreed by all, that if it was a conquered country the king had authority to impose laws. But this case was before the Revolution. Blanchard and Galdy, which has been so frequently mentioned to your lordship, is the next case. It was after the Revolution, and is in Comberbatch 228, and 4 Mod. 215, and 2 Salkeld 411. The question in that case was, whether selling the office of deputy provost, marsbal in Jamaica was within the statute of Edw. 6, and the Court held that it did not extend to Jamaica, because it being a conquered country, the laws of England did not extend to it till introduced by the conqueror or his suc. cessors, meaning clearly, the king, for the word 'successors' will not apply to parliament. I will not repeat to your lordship the words of the report in Salkeld, as they have been already stated more than once. Another case since the Revolution, in which the doctrine is mentioned, is in 2 Peere Williams 75, and there, my lord, it was said by the master of the Rolls to be determined by the lords of the privy council, that if there be a new uninhabited country found out by Englishmen, as the law of England is the birthright of every subject, so wherever they go they carry their laws with them; but where the king of England conquers a country it is a different consideration, for there the conqueror by saving the lives of the people gains a right and property in the people, in consequence of which he may impose upon them what laws he pleases. report; I take it the master of the Rolls did Lord Mansfield. It is ill expressed in the not express himself so. Mr. Hargrave. My lord, these are the only cases, in which I find, that the general doctrine in respect to the king's prerogative over a conquered country has come into question. But there are instances in which the king has actually exerted this prerogative of giving laws to a conquered country. The first instance is that of Ireland. My lord, authors differ very much in their opinions about the manner, in which the laws of England were introduced into Ireland. Lord Coke in Calvin's case considers king John as having given the laws of England to Ireland. The words are" If a king has a Christian kingdom by conquest, as king Henry the 2d had Ireland, after king John had given unto them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding king could alter the same without parliament." Calvin's case, 7 Co. 176. Here lord Coke treats Ireland as a conquered country, and king John as giving laws as a conqueror. But in the 4th Institute king Henry the 2d is said to have partly in troduced them before; and there lord Coke be in respect to Ireland, all, except Mr. Molyneux, agree, that the constitution invested the king with such an authority over a conquered country. lu the treatises by D'Arcy and Mayart, Calvin's case is particularly commented upon; and both writers concur in the principle there laid down as to conquered countries; and both recognize it to be the law of England; the only difference between them in this particular being, that Mr. D'Arcy supposes king John to have introduced the laws of England, and that serjeant Mayart supposes them to have been introduced by king Henry the 2d. cites several records of the reign of Henry 3, in which king John is said to have ordained, that the laws of England should be observed in Ireland. But one of them expresses, that he introduced them with the common consent of all in Ireland. The words of the record are, "consuetudines et leges regni nostri Angliæ quas bonæ memoriæ Johannes rex pater noster de communi omnium de Hiberniâ consensu teneri statuit in terrâ illâ,” 4 Inst. 349. From the record and other circumstances attending the conquest of Ireland, Mr. Molyneux in his argument against the authority of the English parliament to bind Ireland by statutes, has inferred, that the laws of England were not im- My lord, Wales is another instance in which posed upon the Irish as a conquered people, the prerogative of imposing laws either has but were extended to them at their own desire been, or as all the books agree, might have and with their own consent. But sir John been exerted. When Edward the first had Davis's account of the introduction of the conquered Wales, some of its ancient laws English laws into Ireland seems the most were changed, and made conformable to the agreeable to history; and according to him laws of England, though the greatest part of they were not established simul et semel' them remained in force till the 27th of Henry over the whole country, but gradually, first 8. But it is not clear, whether the 12th of over so much of the country as was possessed by Edward 1, sometimes called Statutum Wallise the English colonists in Ireland, and at length and sometimes the statute of Rothland, by over the other parts of the island, as the king which the alteration was first effected, was an from time to time thought proper to extend the act of parliament or merely a royal charter. protection of the English laws, which was not❘ It is printed among our statutes, and lord Coke universally till the 3d year of James 1, who by and lord Hale call it a statute, and it is so called proclamation declared, that he received all the in Plowden; but sir John Davis calls it a natives under his royal protection. Sir John charter. Lord chief justice Vaughan seems Davis's Reports, 101 to 108, and his book on doubtful what it is, and Mr. Barrington in his the causes why Ireland was not subdued till Observations on ancient Statutes is of opinion, the beginning of the reign of James the 1st. that it is not a statute. 4 Inst. 239; Hale's The further particulars on the subject will be History of Common Law 182; Plowden 126; found in Pryn on 4 Inst., sir Matthew Hale's Davis's Reports 114; Vaughan 399, and BarHistory of the Common Law, the 1st vol. of rington, 2nd edit. p. 84. But whatever was Leland's History of Ireland, Nicholson's Irish the mode of first abrogating the Welch laws Historical Library, and two controversial tracts and substituting the laws of England, lord chief on the English parliament's power of making justice Vaughan allows the authority of king laws for Ireland in Harris's Hibernica. Edward to make the alteration without an act two tracts were written about the year 1641, of parliament. In speaking of Wales, and of though not published till within these few years. the 12th of Edward 1, his words are," So as The occasion of the controversy was the Act of from this time it being of the dominions of Adventurers made in the 17th of Charles 1, the English, the parliament of England which declared many Irish persons to be rebels, might make laws to bind it: but it was not and disposed of their lands to others. The immediately necessary it should; but its tract against the right of the English parlia- former laws (excepting in point of sovement is said to have been written by sir Rich-reignty) might still obtain, or such other as ard Bolton, or as Mr. Harris rather thinks, by Mr. Patrick D'Arcy, an eminent lawyer of those times; and the tract for the right was written by sir Samuel Mayart, serjeant at law. So much for the time and manner of introducing the English laws into Ireland; and it is remarkable, that however the several writers differ in explaining the mode of establishing the English laws, there is not one who denies the right of the king of England to impose Mr. Hargrave. My lord, so far as lord Jaws on a conquered country by prerogative, Vaughan goes the authority is the same; beexcept Mr. Molyneux, whose arguments, it cause he treats it as a conquered country, and must be confessed, have a tendency that way. does not found himself on Wales being a fief Some actually attribute the introduction of the of the king of England. He considers Wales English laws to an exertion of the royal pre- as having submitted to Edward the first as a rogative, and the assertion seems well founded conqueror; and therefore attributes to him a in respect to such parts of Ireland as were not power of imposing laws; though he is doubtEnglish colonies. But whatever the fact mightful whether he exercised it, or whether the al The Edward the 1st should constitute, to whom they had submitted, and accordingly their laws after their submission were partly their old laws, and partly new ordained by him," p. 400. Lord Mansfield. Edward the 1st considered land. The statute so represents it. Wales as an antient fief of the crown of Eng teration of the Welch laws was made by the authority of parliament. I am now come, my lord, to America; and shall state how the prerogative has been exercised there. One general observation may be applied to our colonies in America and the West Indies, which is, that all of them, except some of the few ceded to us by foreign states, whose constitutions have not been yet varied, derive the whole frame of their government from an exercise of the royal prerogative. Their governors, their councils, their assemblies; their courts of justice; all originate from gifts of the crown. Their legislative powers, even their powers of taxatiou, flow from the same source. The more early charters from the crown, those antecedent to the reign of James the 1st, were mere grants of the soil of newly discovered countries without fixing any form of government. The first charter for erecting the government of an American colony bears date the 10th of April 1606, and was to the two Virginia companies. It is worthy of notice, that by this charter the king vests the powers of government and legislation in such as should be appointed by a council of persons resident in London, and also imposes a duty of two and a half per cent. on merchandize bought and sold within the colony. But this was before the Revolution, in times when the prerogative was too often carried beyond its due and constitutional limits; and therefore much cannot be inferred from exertions of the prerogative during such a period. However, even since the Revolution, there have been great lawyers, who have attributed to the king a prerogative of taxing such of our American and West India possessions as are countries of conquest. The case of Blanchard and Galdy, in which lord chief justice Holt and the other judges of the King's-bench recognized the doctrine in Calvin's case as to the king's general powers of imposing laws on a conquered country, and the case from Peere Williams, in which the same doctrine was laid down as law, have been already stated as a confirmation of the same principle of law. The instances, in which the king's particular power of imposing taxes on a conquered country has been exercised or come into question with respect to America, shall now be mentioned. In 1686, the government of New England being seized into the hands of the crown under a judgment in a Quo Warranto, king James 2, appointed a governor and council with power to continue the former taxes, till they should settle other taxes under this commission. The governor and council passed an act continuing the former taxes, and in the year after the Revolution (and it is upon that account I speak of the case, for I should be ashamed to mention a precedent of the time of James the 2nd upon the subject of prerogative, unless it was supported by the opinion of those lawyers, who Jived after the Revolution,) lord Sommers and air George Treby, upon being consulted in the case of one Usher, gave their opinion, that the officers of the revenue who collected such taxes were not liable to any action for so doing— Lord Mansfield. The king appointed the governor and council. What were the powers given them? Mr. Hargrave. A power to collect former taxes till they should settle other taxes; and under this commission the governor and council passed an act continuing the former taxes. Lord Mansfield. That appointment respecting the collection of taxes was temporary. Mr. Hargrave. It was the year after the Revolution that lord Sommers and sir George Treby gave their opinions. Lord Sommers and sir George Treby were consulted upon thẻ legality of such taxes in 1689. Lord Mansfield. They were attorney and solicitor general, I believe. Mr. Hargrave. Their opinion being given so soon after the Revolution becomes a very strong authority, unless a difference can be established between a tax revived and a new tax. Lord Mansfield. How do you authenticate it? Mr. Hargrave. I have the case in my band with the opinions upon it. Lord Mansfield. Is it official? Mr. Hargrave. I believe it is an official case. Lord Mansfield. Is it referred to them as officers of the crown? Mr. Hargrave. It don't appear in whose name they were consulted; but most probably it was by the direction of the crown. [Here Mr. Hargrave stated the words of lord Sommers's opinion.] Lord Mansfield. They considered the charter being vacated as if it never had existed, and the charter was out of the way, and they had nó particular constitution given them by the crown, and so it went from the Revolution down to 1694 or 95 till the 4th of king William, their present charter was given them in the 4th of king William. [Here Mr. Hargrave stated sir George Treby's opinion, which was much to the same effect with that of lord Sommers.] Mr. Hargrave. I don't however mean to extend the doctrine as far as lord Sommers and sir G. Treby extend it. They seem to make no difference between a conquered country, and a colony without a government. Lord Mansfield. You mistake it, the charter being totally void, they could have no sort of government but that which the colonies that are called provinces have. They are governed not by any charter, not as proprietory governments are by any grant or patent, but by the king's commission, and instructions added to that commission; and in process of time they had an assembly given them by the king's commission, but had no charter. The two gentlemen meant the charter was vacated, and till he gave a new charter it must be governed by the king's commission. |