Page images
PDF
EPUB

When this conquest was made, from that hour when the king's right was recognized and a composition made, it was for the benefit of the people of this country. Here particularly, its conquest being made with a view to colonization, it is established by the best authority, that of lord Vaughan, on the question, whether a naturalization in Ireland made a man a natural-born subject of Great Britain ?

Lord Vaughan-A conquest is not solely for the benefit of the conqueror, but of the sub jects; and those who come to reside there have a right to acquire property; lands by purchase; -and be protected in all those particulars, by the laws of their mother country.

The inhabitants then of Grenada, are the objects of all those provisions.

They may acquire property, with the right of residence and purchase; and have the other rights of British subjects.

As to expedience or value, we are not speak ing to the equality but the legality; and what ever power has taken a part has the same 'claim to half or the whole.

The authority here contended for is inconsistent with that right which Mr. Campbell had as a resident, if nothing else was affected by it.

It will be incumbent, by new arguments, to prove a power in the crown of disposal of these acquisitions, without the concurrence of the constitution.

Will this right bear the examination of the laws of England?

Ordinances of necessity, on instant emergencies, provisions for the administration of constitutional rights-I shall not presume to say how far these may be maintained: but they must expire with that necessity, and be occasional and temporary only.

In the present case, no pretence of a necessity.

A conquest of the people, and not of the lands, must mean a power most extensively taken in the times of barbarism, but qualified in these times.

shall be a local one, subject to alteration by their own legislature.

A distinction is taken between Grenada and the other islands; I answer, the grant is not a matter of grace and favour, but the discharge of a trust. If it be a gift, it is not revocable, but an irrevocable right; what distinction then is there between this and the other islands, whose rights the king has recognized by receiving the imposts as a benevolence?

What power antecedent to the patent had existed in the king, is annihilated then. Even considering them as subject before to the sole law of the conqueror, and not as subject to, the legislative power of the state, the king has waived the power of taxation if it were admitted he had it before, by granting them assemblies to tax themselves.

The construction cannot be that the inhabitants are not to reap the benefit till a future time: this is so inconsistent with the end, with the construction in which the grants of the king are always received, and the benefit designed, that it will find no weight with your lordship.

Taking it by way of argument that the conquest has annibilated their ancient law, their law cannot have been annihilated and none given them in their place.

If their ancient constitution is gone, the laws of England by their proper force introduce themselves.

It is a future grant, it is said-when the power is given them to call assemblies, they have a provision for a legislature: I don't mean to derogate from the supreme legislature.

The assembly is to be called when circumstances will admit and convenience shall require: so it is here; but yet it is the unalterable privilege of this country.

The people who should come, in confidence of the promise of the rights of British subjects, would, according to this construction, come, and find themselves without one of the most remarkable of those rights, and that which secures all the rest. They would, on coming to reside, find themselves subject to an arbitrary disposal of their property, and might have the whole taken away without their own consent.

Both in the case of the conquered and conquering people, the laws of the general government are upon the conquest conveyed thither, as a common right of all the subjects: but they My lord, on the whole of the case I presume, require to be actually carried into effect, main- whether as a conquered people or as colonies, tained and executed by that power in which the they had a right to tax themselves, and were execution of the laws is lodged, which, with us, not subject to imposts under any claim of preis the king. The title is there before the en-rogative, without their own consent. joyment; when the king has executed that trust, then is the enjoyment.

The colonies cannot have the power of enforcing those laws: they have the right, though the trust is reposed in the king to effectuate them.

The king has given assurance that they shall be protected in all their rights, honours and possessions, and the free exercise of the Roman Catholic religion-this to the conquered; shall the conquerors be in a worse state?

The king has provided, that, as immutable laws may become inconvenient, therefore there

Secondly, If they had been subject to taxes by prerogative, that the king, by his procla mation, has concluded himself from this right.

Mr. Thurlow (Attorney General). I have ever looked on this as one necessary ground of argument to a doubtful question, that we should see and attend to the nature of the claim, its fitness and expediency; and not confound the idea of it by substituting, in its place, something of a very different nature, and supposing that to be the right which is insisted on and in tended to be proved.

If I had been to contend for an absolute independent legislative power in his majesty, I have not that idea of authorities, or of the duties of my profession, that I could have engaged myself in the task of supporting it. Nor should I have thought it a proposition fit to be spoken of in any place, much less in a court of justice. Without taking that for my ground, I mean to insist that his majesty, as an article of executive power, has an authority, legislative in its nature, but subordinate to the supreme legislature: a right of imposing laws, and impowering others to impose them.

to look up to these for protection on all occasions, and to enjoy under them all the blessings and comforts they have enjoyed.

The question is, whether by the laws of Great Britain, which are the only rule here, the king has been advised justly, and acted within the compass of those laws; or whether those laws are exceeded? This is merely the question.

My reason for stating that dominion and property were acquired by conquest was, because I shall infer that the constitution has intrusted the king with the disposition of the proWhen I shall refer to corporations in Eng-perty, and with the ordering of that dominion -land invested with powers to provide laws over conquered; subject to the legislation of the part of the dominions of the king of England, country. from which they were distant, and not natives or inhabitants, I shall think myself entitled to contend that a power which he can delegate he can exercise in his own personal authority.

A method has been taken which requires the right to be considered in rather a different view, and examined in a different mode.

I think it has been endeavoured to be insinuated, or rather declared, that in the article of conquest the laws of England instantly take place in the conquered country, and the conquering people carry the English laws with them. At the same time that this point has been contended, it has been argued that the king, by his executive power, was to establish

those laws.

By the subordinate authority to the Lords and Commons (which I consider as being as much subordinate with regard to the dominions acquired to the king, as with regard to the state - and dominions of the state here), the king regulates the government, and requires imposts from the country, in such manner as he sees requisite.

But it is said "only particular necessity justifies this claim, and it must be only occasional and temporary: when the sovereign authority has found it expedient to give laws for particular local necessity, every individual carries with him all the laws of England;" that is, it may frequently happen, laws subversive of the laws given. The individual then will have a power denied to the sovereign.

I have the authority of the same celebrated author (quoted on the other side) that there is no difference between a country conquered by the arms of another, and discovered. Vat. s. 203-210.

It was stated in the last argument, in order to shew wherever a country is conquered it be comes part of the conquering people, and their Jaws are introduced with the conquest, that in Calvin's case this point had been decided. The question there was, whether the dominion of the conqueror or only the realm is included.

The laws of the conquered remain till altered. They have been accustomed to them as modes of regulating and disposing property. They know no other: if there be better, and more complete in their own nature, they are satisfied with their own; they have been accustomed

4

The king, both in conquests and colonies, has had this right: there has not been an instance in which the king has not exercised the disposition of the laws and property of the conquered country.

He has granted by his charter the island of St. John.

The king may exercise the right of disposing the lands conquered. With respect to the laws, if we should be carried back to the conquest of Ireland, (which, I think, remains in great doubt, whether by Edward or king John, or whether indeed completely till the reign of Elizabeth, at any period) the great loss of the records of Ireland has made it impossible to go into an accurate discussion. Lord Coke is of opinion that, in point of fact, Henry the second did give the laws of England to Ireland. King John was not, in truth, the sovereign of Ireland; the actual sovereign was Henry the third. It was not till after two descents had been cast that king Henry the third granted the English laws.

Supposing king John gave them those laws, or that they were established there before. It is contended this was a mere act of executive power. It will appear to what extent this power, called executive, was carried.

On the subject of the English laws another ambiguity runs: that it is not only the laws of property and punishment of crimes, but the political laws and constitution of the country.

Suppose the king could not make, nor authorize others to make laws occasionally, the authority of parliament would be necessary tỏ make the change.

With respect to Scotland, whenever they did call a parliament, it was by the king's command and instance, as at Newark; and it is too much to say that the king, in the character of an executive magistrate, has a right not only to create assemblies, but to appoint their meeting; and also that he carries with him, as a part of merely executive power, the power to alter laws.

With respect to Wales, though I believe in my conscience it was in fact, obtained by no better pretence than that of the sword, yet Edward did not consider it as such.

Plowden, 126. There is no pretence that the ordinance then made was by king, lords,

and commons; the king considered it as a fief under his own personal dominion.

With regard to many places in France, taken certainly by right of conquest, and ceded by the treaty of Bretigny, my doubt is, whether the English laws came thither.

With respect to the market of Calais, the resort of English introduced the laws there, for convenience, but not in the castle, nor in the town of Calais.

With respect to Minorca, the laws of England do not take place there.

because by the treaty of peace the king of France says he cedes all his right to the king and crown of Great Britain? What does the treaty more than affirm the right of Great Britain, by ceding all right or pretensions of right. If his majesty thought fit, after having imposed one sort of laws, to give another repugnant sort of laws, or the parliament were to do this, it would be by an authority acting in subversion of the first.

This drives on to another inconsistency upon the claim of political liberty.

The king by his conquest acquired a power to provide laws for his subjects, a power which has been so repeatedly and extensively exer

In the year 1713 they were referred to certain of the council, the archbishop of Canterbury, and others; in the year 1727 somewhat was done; in the year 1740 a little more: incised in other instances. 1752 the privy council sent over a great multitude of laws, but the war interfered.

[Lord Mansfield.-This, I think, was after the complaint against governor Melville.]

1606. King James grants a charter, with a power of making laws, and an exclusive fishery, from 34 to 35 degrees of latitude, to the corporation of Plymouth.

It is said this charter came into parliament. They came because an exclusive fishery had been granted to a corporation residing at Plymouth, with a power of imposing penalties.

The objection was, that at the time the corporation of Plymouth had not sent colonies.

Charter of Massachuset's bay, with power to call assemblies, granted by the king; vacated and granted anew after the revolution by king William.

Has the king superseded that right? The proclamation, it is said, gives the English laws to all the subjects. It was said that it presumed the laws of England prevailed in the country, and that it made a provision in the commission to be given to the judges. What, that they should bring those laws which, by this hypothesis, were there before!

The proclamation might convey the English laws, but not the political and constitutional system in general in this kingdom.

The promise is said to be the same which the king gives here. I don't know by what record it appears that the king has engaged himself to his subjects of this country, that, when convenience shall permit, or occasion shall require, he will permit a parliament to be called.

The king, by his commission, empowers the I observe, when a passage has been cited governor to call an assembly when he shall from the history of former times, it is the cus-think convenient, or receive instructions: and tom to say they were bad times. Where are his authority was so much executory, that he we to look for the history of this country but in might have established assemblies either of the those times, separating the bad from the good? five islands together, or in Grenada apart and In the case of St. Christopher's there were severally. given by eminent lawyers very distinct opinions, in favour of the right in the crown to impose duties. I don't recollect there was any evidence of want of exercise of that right; yet it was contended against because an act of assembly twenty-five years after granted the duties.

Yet, if one was to infer from every act that has been made in any of the political constitutions of this country that there was no law before that act was made, it would subvert most of the most important laws of this country. It was said the king might have enacted a law, but only before the time of the actual surrender; but that, after it surrendered to the sovereignty, it becomes part of the conquering state in a different right; and the ordinances must be only temporary till the king and parliament provides others.

From the moment the conquest has established itself, from the instant in which he has compelled the inhabitants to give up their arms, there is not any hour in which the parliament cannot bind it.

Suppose this ordinance had been before the capitulation and cession, would it have ceased

It would be of the utmost danger to this constitution to say, till the king or parliament gives them a constitution, he might act in full power, without any laws to decide.

The commission to call assemblies was not executed till above a year after the patent imposing the duty.

In the case of chartered governments the argument would, undoubtedly, take a different turn. It might be said a charter is a grant of an interest to persons named in the grant; but in this nothing could pass, but the constitution existing till some new grant.

The special verdict has not found the time in which the commission passed the great seal. The patent passed for raising the tax in July ; the governor did not go over till October; both came together. The king, therefore, had introduced his claim to the impost on the country prior to the time in which any assembly could be called; for his right was introduced the very instant of the governor's landing: and the elder right, in the king especially, will be preferred above all, when it appears the procla mation could not be intended to waive the impost.

Mr. Serj. Glynn, in reply. Before I go into the general question I shall speak upon two important points, though an end is made of the case, and the object satisfied to the plaintiff by the decision of the last. The other is so great and important an one in the general consideration that I am persuaded your lordship will not pass over in judgment.

The tax is contended to be legally levied, upon a claim of which the very stating of the case proves the illegality.

any laws but the laws of England: and when be considers it expressly, as intimately and vitally connected with England, as a part to the body, in one entire dominion, can it be doubted whether he understood that he was to govern it by the laws of England?

Whether lord Coke is right in supposing king John, or any other prince, introduced the laws of England into Ireland, I don't think is material; unless it appears some prince, by his authority, made laws and regulations there, My learned friend has set out with disavow-without the concurrence of the English par ing the claim of an absolute independent so-liament. vereignty in the crown; but he has maintained his argument, and was obliged to maintain bis argument upon it.

He says it is a subordinate legislature. A subordinate legislature, in this sense at least, is difficult to be conceived to those who know not how to make dependence consist with independence: but the state of Grenade distinguishes itself. It is a tax imposed by an act of legislative power, which includes the entire legal sovereignty; but it is not an uncontrouled authority, because the king, with consent of parliament, may depart from this claim, so as to bind his successors: the supreme legislature may repeal it. The king makes an essential part of that legislature. Is it a mark of a limited, subordinate, authority, that he can impose without them what they cannot take away without him? And that he may depart from this is what any man may do in any instance of the most uncontrouled legislative authority.

My learned friend says it is a subordinate act of legislation; an act of execution, not of legislation. It does not depend upon the king whether the laws of England introduce themselves, because the parliament may alter or appoint laws. The king may levy taxes by his sole authority, which shall stand in force till parliament repeals them, which they cannot without him.

I believe my learned friend will hardly prove this power vested in the person of the king. It was the great point our Hampden contended, that no tax can be imposed by the authority of the king. It must, therefore, depend solely upon the question, whether the king has an absolute independent legislation; or whether the power of the crown is not truly executive.

The promulgating and introducing the administration of the laws of England we admit to be in the king, as his peculiar and necessary trust, the making, altering, or suspending of those laws, we deny.

Notwithstanding the observation on the government of Scotland, the states were convened in the first instance of Edward's claim: and if he claimed it as a fief, and obtained as a conqueror, still he governed it as a king of England, with executive and not legislative authority.

As to the claim of a feudal duchy in Wales, it does not appear that the king ever introduced

[ocr errors]

The king has the power, because it has been delegated. The case was not that the king, in the grant to the corporation, made laws to bind others without their consent; but he empowered them to make laws which should bind themselves. The case is so far from proving a power to make laws contradictory to the laws of England, that it only proves the power of the king to convey the laws of England.

And because the king cau erect a corporation which shall make bye-laws obligatory upon the particular community, therefore the king, it is inferred, can make laws which shall bind those who never gave their consent to them.

The strongest authorities, uniform experience, as well as the principles of the constitution, and rules of law, are against it.

Selden's opinion is against it, and those of the other great lawyers. It has the testimony of the best constitutional lawyers, of which no age was ever more fruitful than that of James the 1st, to negative it. It ought to have been not unsupported by precedents. The character of the prince who is made the example of the claim, ought to have been other than it was: he ought to have been a prince who hated prerogative; who was desirous of keeping the right of the crown within its constitutional limits, and by no means of extending it beyond them.

The next are mere private opinions given by great lawyers, but in private. Though they will have great weight, as far as extrajudicial opinions in courts of law, they are not leading principles of decision: and, had any private opinion been decisive, this cause had never been now before the court. No man reveres opinions of men of great abilities more than 1 do: but there is not the opinion of any man which standing simply on the footing of authority, I shall not think myself at liberty to question: and even the greatest have been heretofore questioned successfully. I never could be deterred by great opinions, when I considered by what authorities the liberty of the press has been opposed; by what autho rities the claim of ship-money was supported; and what the event was upon both those questions.

What was done upon the forfeiture of the charter, before the Revolution, is no authority; but rather an argument of error. After the Revolution some lawyers gave their opinion for collecting the revenues as they used to be

collected; this was done only in the interval of suspension of legislature.

A question of this nature, a power of a kind like this, is not to be gathered from such authorities and circumstances as those which have been stated. Mr. Attorney General was supposing an instant abrogation of all former laws. I did not say so when it was a conquest, There are some unalterable laws to continue. As to the objection made of claiming of property, the former mode must remain till the king appoints another by his executive power.

My lord Vaughan says the subjects don't acquire a property in the soil. If the inhabitants had been turned out of it, it would have been in the king. In the idea of this country the property of all lands was originally in the king. If Mr. Attorney General had been con tending for this as a feodal right, the argument would have had weight; but we are not arguing for the property of the soil.

The subjects of England have a right to the English laws: they have a right to assemble: and the reason why the king never says to them, "that he will call assemblies as soon as convenience permits and occasion shall require," is, because in this country convenience always permits, and occasion requires. But still the trust of calling them is reposed in the king.

Mr. Attorney General, after having discussed the point of sovereignty in the case of Ireland, with respect to their assemblies, has said, this is in execution of authority in the king; if so, then the laws were there before, and assemblies called upon the same terms as in England. And that the acts concerning them were by authority of parliament.

With respect to the power of the king to make laws.

He can make no other laws than what shall have been made by the constitutional assemblies: he can repeal none; nor alter without them.

Mr. Attorney General says that by his proclamation the king promises that he will grant them the privileges of British subjects; but then this promise cannot take effect before the governor lands, and an assembly is called, and immediately on his landing, and before an assembly can be called, he has a right to levy imposts.

I take the construction to be, that the promise takes place from the time of issuing it: A constitution takes place immediately. We are not less governed by the laws of this country because a parliament is not constantly sitting.

This cannot be distinguished from the case of any other colony; and if the power claimed be in this case disallowed, the colonies in general will then act all of them with the same dependence on the supreme legislature, and the same conformity in the principles of the British constitution. If otherwise, there will be British subjects under the same name, and with the same nominal rights, some free and others in unconstitutional subjection.

Lord Mansfield. I don't remember its being argued in this case on the question whether there is any authority which considers Bretigny as a part of the dominions of the crown of England. Aquitaine and Poictou he held as heir to the house of Anjou.

The parts separated from the crown, and considered as feodal, were governed by a despotic authority. It appears that Calais bad the process and judicial writs of this court. Writs of error returnable to this court.

How do you understand the capitulation? A cession is not necessary to a conquest; it not necessary for the right. Jamaica never has been ceded, I believe, to this hour.

is

How do you understand the capitulation ? There is an article that they shall pay no other duties but what they paid to the king of France.

Mr. Just. Aston.-First of all in this special verdict the articles of capitulation, some of them are stated. I don't understand how the

capitulation and treaty of peace agree. But I am to judge upon the verdict.

November 28.

Judgment of the Court was this day given by lord Mansfield, as follows:

Lord Mansfield. In this cause of Alexander Campbell against William Hall;

[ocr errors]

And

This is an action brought by the plaintiff, who is a natural-born subject of Great Britain, and who, upon the third of May, 1763, purchased lands in the island of Grenada. it is brought against the defendant, William Hall, who was collector for his majesty at the time of levying the impost, and of the action brought, of a duty of four and a half per cent. upon goods exported from the island of Grenada. And it is to recover a sum of money which was levied by the defendant and paid by the plaintiff, as for this duty of four and a half per cent. for sugars which were exported from the island of Grenada, from the estate and by the consignment of the plaintiff.

And the case is laid upon money bad and received; and plaintiff, as for money paid without consideration, the duties having been imposed without sufficient or lawful authority to warrant the same, demands judgment to recover the same against the defendant.

And it is stated in the special verdict that the money is not paid over, but continues in the defendant's hands, by consent of the attorneygeneral, for his majesty, in order that the question may be tried.

The special verdict states Grenada to have been conquered by the British arms from the French king on the 7th of February, 1762; and that the island of Grenada was ceded by capitulation; and that the capitulation upon which they surrendered, was by reference to the capitulation upon which the island of Martinico had been surrendered.

The special verdict then states some articles of that capitulation, particular y the fifth, which grants that Martinico shall be governed

« PreviousContinue »