Page images

ciles several recorıls of the reign of Henry 3, , be in respect to Ireland, all, except Mr. Molyin which king Jobo is said to have ordained, neux, agree, that the constitution invested the obat the laws of England shonld be observed in king with such an authority over a conquered Ireland. But one of them expresses, that he country. lu the treatisez by D'Arcy and introduced them with the common consent of Mayart, Calvin's case is particularly comall in Ireland. The words of the record are, mented upon; and both writers concur in the ** consuetudines et leges regni nostri Angliæ priuciple ibere laid down as to conquered counquas bonæ memoriæ Johannes rex pater poster tries; and both recognize it to be the law of de communi omnium de Hibernjâ consensu England; the only difference between them in teneri statuit in terrâ illâ,” 4 lost. 349. From this particular being, that Mr. D'Arcy sup. the record and other circumstances attending poses king Jobo to bave introduced the laws of the conquest of Ireland, Mr. Molyneux in bis England, and that serjeant Mayart supposes argument against the authority of the English them to have been introduced by king Heary parliament to bind Ireland by statutes, has in- | the 2d. ferred, that the laws of Eugland 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 copsept. But sir Jobn heen exerted. When Edward tbe 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 will the 27tb of Henry over the wbole country, but gradually, first 8. But it is not clear, whether the 12th of 0yer so much of the country as was possessed by Edward 1, sometimes called Statutum Wallive 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, wbich 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 tbe in Plowden; but sir John Davis calls it a natives under his royal protection. Sir John charter. Lord chief justice Vaugban seems Davis's Reports, 101 to 108, and his book on doubtful what it is, and Mr. Barrington in his tbe causes why Ireland was not subdued till Observations on ancient Statutes is of opinion, the begioning 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 ; Plow den 126; found in Pryo on 4 lost., sir Matthew Hale's Davis's Reports 114; Vaugban 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 Alistorical 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. The 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 coutroversy was the Act of from this time it being of the dominions of Adventurers maile 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) migbt still obtain, or such otber as ard Bolton, or as Mr. Harris rather thinks, by Edward the 1st sbould constitute, to whom Mr. Patrick D'Arcy, an eminent lawyer of they had submitted, and accordingly their those times; and the tract for the right was laws after their submission were partly their written by sir Samuel Mayart, serjeant at law. old laws, and partly new ordained by him," So much for the time and inanner of introduc- p. 400. ing the English laws into Ireland; and it is remarkable, that however the several writers

Lord Munsfield. Edward the 1st considered differ in explaining the mode of establishing

Wales as an antient fief of the crown of Eugthe English laws, there is not one who decies

land. The statute so represents it. the right of the king of England to impose Mr. Hargrave. My lord, so far as lord laws on a conquered country by prerogative, Vaugban goes the authority is the same ; beexcept Mr. Molyneux, whose arguments, it cause be treats it as a conquered country, and musi be confessed, have a tendency that way. does not found himself on Wales being a fief Rome aetually attribute the introduction of the of the king of England. He considers Wales Eaglish 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

respect to such parts of Ireland as were not power of imposing laws; though be is doubtnglish colonies. But whatever the fact might ful whether he exercised it, or whether the al

teration of the Welch laws was made by the case of one Usher, gave their opinion, that the authority of parliament.

officers of the revenue who collected such I am now come, my lord, to America ; and taxes were not liable to any action for so shall state how the prerogative has been exer- doingcised there. One general observation may be applied to our colonies in America and the Lord Mansfield. The king appointed the West Jodies, wbich is, that all of them, except governor and council. What were the powers some of the few ceded to us by foreign states, given them ? whose constitutions have not been yet varied, Mr. Hargrave. A power to collect former derive the whole frame of their goveroment taxes till they should settle other taxes ; and from an exercise of the royal prerngative. under this commission the governor and counTheir governors, their councils, their assem- cil passed an act continging the former taxes. blies; their courts of justice; all originate from Lord Mansfield. That appointment respectgifts of the crown. Their legislative powers, ing the collection of taxes was temporary. even their powers of taxation, flow from the Mr. Hargrave. It was the year after the same source. The more early charters from Revolution that lord Sommers and sir George the crown, those aptecedent to the reign of Treby gave their opinions. Lord Sommers James the 1st, were mere grants of the soil of and sir George Treby were consulted upon the newly discovered countries without fixing any legality of such taxes in 1689. forın of government. The first charter for Lord Mansfield. They were attorney and soerecting the government of an American licitor general, I believe. colony bears date the 10th of April 1606, and Mr. Hargrave. Their opinion being given was to the two Virginia companies. It is wor. so soon after the Revolution becomes a very thy of notice, that by this charter the king vests strong authority, unless a difference can be the powers of government and legislation in established between a tax revived and a new such as should be appointed by a council of tax. persous resident in London, and also imposes a Lord Mansfield. How do you authenticate it? duty of two and a half per cent. on merchan- Mr. Hargrave. I have the case in my band dize bought and sold within the colony. But with the opinions upon it. this was before the Revolution, in times when Lord Mansfield. Is it official ? the prerogative was too often carried beyond its Mr. Hargrave. I believe it is an official case. due and constitutional limits; and therefore Lord Mansfield. Is it referred to them as of .much cannot be inferred from exertions of the ficers of the crown ? prerogative during such a period. However, Mr. Hargrave. It don't appear in whose even since the Revolution, there have been name they were consulted; but most probably great lawyers, who have attributed to the king it was by the direction of the crown." (Here a prerogative of taxing such of our American Mr. Hargrave stated the words of lord Somand West Jodia possessions as are countries of mers's opinion.] conquest. The case of Blanchard and Galdy, Lord Mansfield. They considered the charter in which lord chief justice Holt and the other being vacated as if it never had existed, and judges of the King's-bench recognized the the charter was out of the way, and they bad doctrine in Calvin's case as to the king's gene- no particular constitution given them by the ral powers of imposing laws on a conquered crown, and so it went from the Revolution country, and the case from Peere Williams, in down to 1694 or 95 till the 4th of king William, which the same doctrine was laid down as their present charter was given them in the 4th law, have been already stated as a confirma- of king William. tion of the same principle of law.

[Here Mr. Hargrave stated sir George TreThe instances, in which the king's particu- by's opinion, which was much to the same lar power of imposing, taxes on a conquered effect with that of lord Sommers.] country has been exercised or come into ques- Mr. Hargrave. I don't bowever mean to tion with respect to America, shall now be extend the doctrine as far as lord Sommers and mentioned.

sir G. Treby extend it. They seem to make In 1686, the government of New England no difference between a conquered country, being seized into the hands of the crown under and a colony without a government. a judgment in a Quo Warranto, king James 2, Lord Mansfield. You mistake it, the charter appointed a governor and council with power being totally void, they could have no sort of to continue the former taxes, till they should government but that wbich the colonies that settle other taxes under this commission. The are called provinces have. They are governed governor and council passed an act continuing not by any charter, not as proprietory governthe former taxes, and in the year after the Re- ments are by any grant or patent, but by the volution (and it is upon that account I speak of king's commission, and instructions added to the case, for I should be ashamed to mention a that commission; and in process of time they precedent of the time of James the 2nd upon bad an assembly given them by the king's

the subject of prerogative, unless it was sup- commission, but had no charter. The two genported by the opinion of those lawyers, who tlemen meant the charter was vacated, and till lived after the Revolution,) lord Sommers and be gave a new charter it must be governed by uir George Treby, upon being consulted in the the king's commission.

Mr. Hargrave. There are still more recent command the like duty to be levied upon goods cases in respect to our American possessions. to be exported from the conquered part, and

Io 1702 the English conquered the French sach commands are law there, her majesty part of the island of St. Christopher's; and by prerogative being enabled to make laws to soon after sir Edward Northey, then attorney bind places obtained by conquest, and all that general, on a reference to bim by the privy shall inhabit therein." council, reported it as his opinion, that the Mr. Hargrade. If, my lord, I bave sue. queen might by letters patent impose a duty ceeded in establishing the first point, that the upon goods exported from the conquered part, king has a right by prerogative to tax a conand the reason he gave was, " that the queen quered country, the only remaining consideraby ber prerogative could make laws to bind tion is, whether at the time of imposing the places obtained by conquest and all that inhabit daty of four and a half per cent. the island of therein." Accordingly a duty of four and a Grenada answered to that description. It is half per cent. was imposed by the queen, that stated in the special verdict, that the island of being the same duty as was payable in the Grenada was conquered during the late war; Eoglish part of the island under an act of as- and there is nothing in the terms of capitulation sembly. This duty on the French part was which gives a right to the inhabitants of that continued till the peace of Utrecht, when the island to the laws of England. By the 5th and possession of the whole island was confirmed 6th articles the inhabitants require, that they to Great Britain, soon after which an act of should preserve their civil government, their assembly was passed extending this duty of laws and ordinances with respect to the admi. four and a half per cent. to the French part of nistration of justice, and that there should be the island.

regulations made between the governors of bis But there is a more recent case. In the Britannic majesty and them for that purpose ; reign of the late king the assembly of Jamaica and in case at the peace the island should be wjibbeld the psual grants ; aud ihis gave oc- ceded to the king of Great Britain, it should be casion to the crown's consulting sir Clement allowed to the inhabitants to preserve their own Worge and the late lord Hardwicke, then at form of government or accept that of St. Christorney and solicitor general, to know, whether topber's. This was what was demanded on the the king had not a right by his prerogative to part of the island, but the demand was not impose taxes in that island. Their answer complied with. The answer was, that they was, “ That if Jamaica was still to be consi- would become British subjects, but should be dered as a conquered island, the king had such continued to be governed by their present laws a right, but if it was to be considered in the till bis majesty's pleasure should be known, same light with the other colonies, no tax could So that the articles of capitulation neither stibe imposed on the inhabitants, but by the as. pulate a constitution nor" laws for the island; sembly of the island or by act of parliament." but leave the royal prerogative as free and un- It is in vain to urge against these authorities, restrained, as if there had been a submission that in Great Britain, in Ireland, and such of without any terms. But the great difficulty in our colonies as were originally settled by emi- the cause arises from the first proclamation, by grants from this country, the legislative power which a provincial legislature and the laws of is not entrusted to the crown. It might perbaps England are promised to the island of Grenada, be more conformable to the general nature of and the commission to governor Melville, by the constitution, and it might be more conve

which he is authorized to carry that promise niept, it certainly would be more uniform, if into effect. It is said, that these instruments the limits of the king's prerogative were as were an immediate gift of the British consticircamscribed in a conquered country as in the tution and liberties, and of the English laws; realm of Great Britain. But the question to and being antecedent to the letters patent for be decided here is not, what would be the best imposing the duty of four and a ball per cent. constitution, but what the constitution actually were a waiver of the prerogative of taxing. It is; not what bounds ought to be set to the is true, that an administration of justice accordking's prerogative, but what its limits really ing to the laws of England was to take effect are. If the royal prerogative is in tbis instance immediately, but both the proclamation and improper, inconvenient, and dangerous, it is the governor Melville's commission suspend the business of the British parliament to correct calling of a general assembly, till the cirand reform it, and to reduce it within narrower cumstances of the island should admit of a bounds; but the business of this court is of change so important. It was left entirely to another kind.

the discretion of the governor and bis council Lord Munsfield. You did not state sir Ed- to decide, when it should be proper to execute ward Nortbey's opinion fully; his opinion, I that part of his commission : and in fact it was will read it, is this : “ The law extended ori- not executed, an assembly was not called, till ginally to such part of St. Christopher's as be after imposing the duty. Before the first prolonged to the crown of England. When that clamation, the king was the lawgiver of the law was made, by virtue of that law they island; but he thought fit to promise a legis. could not raise the daty upon the conquered lature more conformable to the general frame part, yet her majesty inay if she so pleases of our goveroment, and he commissions his koder the great seal of England direct and governor to fulfil that promise, when the state of the island should permit. Till that time first governed all his dominions according to came, I submit, that the prerogative continued. his own idea of prerogative, conceiving this 1 submit, that the king's legislative powers did empire to be made up of so many small parcels, not cease till the assembly to which he pro- looking up to him for support, and when he mised to transfer them was called. At a sea drew a comparison of his subjects understanding sonable time a new legislative power was to be with his own, he held that they were in proconstituted : but till tbat time arrived, the old portion to his, as a platter is to the sup in the one, however arbitrary, remained ; and it was firmament, or as the brass nails in the pommel not the king's iutention to divest himself of bis of a saddle to the stars in tbe heaveus.—My prerogative souper. To say otherwise is sup- lord, it is most indisputably true in the general posing, that the king meant to leave the island terms in which the proposition is laid down, for a time without any legislature, and to quit that the king may tax a conquered country. I his legislative powers before the assembly, in have admitted that he may during the war, but which he promised to vest tbem, was called then and then only, and I have heard no answer into existence,

to the arguments by wbich I confined it to tbat Lord Mansfield. There are three instru. period ; at least, though the king inight have ments. There is the proclamation, the survey a power to lay on a tax before the proclamation in March, and the commission to the governor. so soon as that proclamation was made, he waived

Mr. Hargrave. I did not mention the se- that right, and by virtue of it allowed them a cond proclamation, because it seems merely to constitution, which was established completely concern the survey of the island, and the man- the year after, and I submit, if that proclamaner of granting crown lands to pew settlers. tion is over-ruled, it will be worse than if it had

Lord Mansfield. It recites the terms of the never existeil. It is said with respect to the proclamation, and invites settlers upon those charters of New England, and other places 'Lermos.

at the time when they were resumed into the Mr. Hargráde. But then I answer, it was king's bands, that great lawyers soon after the not a part of those terms to waive the king's Revolution gave it as their opinions, that those prerogative of making laws, till a new legisla- places were considered as conquered countries, ture was constituted under governor Melville's and in the saine situation as if those charters commission. A promise was made to call an had never existed. I conceive po precedent assembly when the circumstances of the island whatsoever can warrant such opinion, but as to should permit';, and it would bave been dis- all the cases quoted by Mr. Hargrave and me; graceful not to have performed that promise. they are very loose; and neither can avail ourBut it was performed. All I contend for is, selves very much of them ; but still with rethat till actually executed, and till the legis. spect to those opinions, they talk of a conquered lature was established by calling an assembly country without saying wbat it is or is not, and in order to succeed to the legislative power of I hope I have shewn to your lordship that it the crown, the king's prerogative remained the can only be a country, beld by the sword same as before. Nothing further occurs to alone. . me; and I am the less unwilliug to trust to the few observations I bave made in the latter American inscances is this, there are con

Lord Mansfield. Wbat he says of the part of the cause, because it was the principal quered countries amongst them—New York subject of the former argument.

in particular was conquered from the Dutch, Mr. Macdonald in reply. My lord, as I have they have their wbole constitution from the already troubled your lordship to a much greater crown that is what he says, but always that length than I am warranted in doing, and as I stitution exercised by the king is not exclusive

this power of giving a conconceive I have already anticipated most of the of parliament, there cannot exist any power in arguments and instaoces mentioned by Mr. Hargrave, I shall be very short by way of

the king exclusive of parliament. reply.-1 shall only bring back to your lord- Mr. Macdonald. Mr. Hargrave at the same ship's recollection, that I endeavoured to ex- time says the king's proclamation is not ouly plain to the best of my understanding, that the executory, but he has the intermediate power king cannot extend his prerogative power of of imposing taxes until the assembly can sit imposing taxes beyond the time that a country vow if that proclamation was not capable of becomes a regular settled part of the state—by giving these people a constitution, which it the terms of proclamation in question, be ex- does inasmuch as it gives them the laws of pressly transfers to the island of Grenada, the England to all eternity, they must remain as laws of England. And to impose a tax without a conquered country, and the crown has not the concurrence of any other body, is to retract the power of doing that act which can give that gift: but Mr. Hargrave bas said there are them the benefit of a legislature which every precedents, thoagh not very strong, which other colouy bas; if this proclamation does not shew the king bas such power of exercising a give it, what is the consequence of that—what prerogative of taxation over a conquered coun- your lordship says undoubtedly must be true try. One he mentions in James, the Ist's time, the parliament can never be excluded, but tben and at the same time he says be is ashamed to there will be a double legislative authority over mention another in James the 2d. James the this country, and parliament may do one way, the king another, and they will be subject to Mr. Attorney General authorized me to say that the miseries of a double government.

he desired another argument. But I underMr. Just. Willes. Is not it the case with them stand from him in conversation, that he meant all-wben a legislative power is given then to argue it the third time, which is one reason they are subject to this parliament also. for my present application.

Mr. Macdonald. True, my lord, but I mean Loru Mansfield. Let it stand over for a third there is a double superior government over them: argument. as to their own subordinate legislature, I don't conceive that to be so very material as to be On Monday the 6th of June it was moved classed with the others, namely, the king alone, for farther argoment. Stood over till the or jointly with bis parliament, and much of the Tuesday se'ennigbt. misery of double and consequevtly uncertain government will still remain.-1 submit to

Tuesday, June 14. your lordship it is inconsistent that the king

It was entreated it might stand over till should thus have the legislative authority: as

Friday. to the parliainent having it, there can he no

Lord Mansfield.I don't see any inconvedoubt of that. With regard to the opinions of nience in going over till next term. 'It is your lord Sommers and sir George Treby, they were own delay. It is absolutely impossible to give given on circumstances so very particular that judgment this term. Suppose we were all they cannot possibly apply to this case, in agreed, many matters are thrown ont in arguwhich no such circumstances are to be found ; ment which are not absolutely necessary in the and with respect to sir Edward Northey, I must decisior., but of which it would be necessary to remind your lordship that be speaks of a coun- the Court to take notice. try held by force of arms, and his opinion was What the value of the French duties may that it might then be subject to the king's pre- be, I don't know: it does not appear in the rogative only; but wben it becomes a colony,

case. Suppose the Court should be against the that is, as soon as the legislature was established, imposition of those duties which are imposed that prerogative is not to be enforced.

in lieu of the French, there would arise a If the sense of the parliament was wanting, question concerning those duties. there was a bill brought in, in March 1749, in order to make the king's order law ju the terial argument of all ?

Can you have any doubt upon the most macolonies. That was petitioned against by every The first question made in the second arguone of the colonies, and thrown out.

ment by Mr. Macdonald, I think, is one of the The words of the Declaratory Act of 6 of

greatest constitutional questions that, perhaps, Geo. 3, 6, 12, are as strong as possibly words

ever came before this Court. As my brother can be, declaring the power of legislation and Aston is absent, I wish, principally upon that taxation orer the colonies to be in the king and

account, that it may stand over. It is imposparliament, without any reference to the king's sible it should ever be passed over in silence. sole prerogative. I need not go over the ground again, for beside the crude ideas wbicb I have Mr. Campbell moved that judgment might submitted to the Court, the learned gentleman be given upon the former argument, but lord who went before me has sufficiently answered Mansfield reminded bim that he could get no every objection in the first argument; where- farther, because it must necessarily come into fore, trusting more to his ingenuity and learn- the Exchequer; and, even if that were not ing than my own, I hope the judgment of the the case, judgment could not have been given Court will be for the plaintiff.

in the term, both on the account of the absence

of Mr. Justice Aston, and as the last day would Lord Mansfield. If neither side desire a fur. be a Wednesday. ther argument, I am ready to give my opinion. Mr. Hargrade. My lord, I am desired to

November 7, 1774. request a further argument, and when I con

The Grenada cause came on for the third sider my own inability, 1 hope your lordship argument by Mr. Attorney General on the part will grant another argument. Mr. Macdonald. I am instructed to repre

of the crown, and Mr. Serjeant Glynn for the

plaintiff. sent to your lordship that this is a revenue tax requiring an immediate determination, and Mr. Serjeant Glynn.-This case, one of the to say that we should be glad of the judgment most important in its principles, and in the conof the Court as soon as possible.

sequences dependent on the decision, that was Lord Mansfield. It has been argued very ever argued, comes before the Court on a special well.

verdict, stating that the island of Grenada was Mr. Hargrade. My lord, it is the wish of in the possession of the French king, and conMr. Auorney General to have an opportunity quered by his Britannic majesty's arms in of arguing it, the cause is of great importance, 1762. The inhabitants permitted to sell their -there is great novelty in it.

lands, to the subjects of Great Britain only, by Lord Mansfield. I have said, if either side the articles of capitulation in 1763. desire another argument I will not refuse it. Proclamation, reciting the benefits from a Mr. Hargrave. I am not positive whether regular colonization ; promising that assemVOL. XX.


« PreviousContinue »