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sentatives of the province of the Massachusets, and yet denied the king's autbority to impose Bay, in the month of January, 1768, to the taxes op its johabitants withont the consent of an earl of Shelburne, (who was at ihat time one of assembly. For in another letter of the same his majesty's principal secretaries of state), it assembly of the representatives of the province is recited in these words ; Sir William Jones, of Massachusets bay, written in the same an eminent jurist, declared it as his opinion, to month of January, 1768, as the former letter king Charles the second, That he could no to lord Shelburne, and addressed to Dennis more grant a commission to levy money on his De Berdt, esq. their agent in England, they subjects in Jamaica, without their consent by speak of this opinion of sir William Jones in an assembly, than they could discharge them these words: There was even in those times selves from their allegiance to the crown. (the times before the Revolution] an excellent
“ In this account we see that tbis opinion attorney-general, sir William Jones, who was related to Jamaica ; which was a conquered of another mind, and told king Charles tbe country. The only remaining doubt therefore second, that he could no more grant a commisis, whether sir William Jones, when he gave sion to levy money on bis subjects in Jamaica, this opinion, considered Jamaica as continuing though a conquered island, without their constill in its original state of a conquered coun. sent by an assembly, than they could discharge try, or whether he supposed its political con- themselves from their allegiance to the Eng. dition to have been altered by the events that lish crown. If this last account of sir William had happened to it since its conquest, (such as Jones's opinion is the true one, it is evident the wiihdrawing of the Spanish inhabitants that he coosidered Jamaica as continuing still from it, and the accession of Englishmen to it, in the condition of a conquered country, and who were invited by the king's proclamation consequently that bis opinion with respect to to come and settle in it), so as to have been the king's power over conquered countries is thereby converted into the political condition of directly contrary to lord Mansfield's. a colony, or country that had been origioally “ The other opinion which I mentioned as planted by Englishmen under the king's au- material to our present enquiry was that of Mr. ibority; which is the light in which lord Mans- Lechmere, a lawyer of considerable eminence, field seerns to think that island ought to have and esteemed a man of great integrity, who been considered in the year 1722, when sir was attorney-general to king George ihe 1st. Philip Yorke and sir Clement Wearg gave This opinion I had occasion to mention to you their opinion concerning it. But there may be in our last conversation, jnst before I begun a great deal of difference between the condition the account of the imposition of the duty of of Jamaica, in the year 1722, and its condition four and a balf per cent. upon goods exported in king Charles the 2d's time, about the year from Grenada by the king's letters patent of 1677, or 1678, when this opinion probably was July, 1764. It is shortly thus. When the given : and the reasons for considering it as British ministers of state, in the year 1717, having changed its political state from that of had a design of advising the king to impose, by a conquered io that of a planted country, or bis royal prerogative, the said duty of four and colony, were much stronger in the year 1722 a half per cent. on goods exported from the than at the other period. For during the greater island of Jamaica and the little islands of Ane. part of Charles the second's reign, and there. gada and Tortola, which are situated at a small fore, probably, when this opinion was given, distance from St. Christopher's, they consulted the inhabitants of Jamaica were governed only Mr. Lechmere, the attorney-general, upon the by a governor and council, without an as- legality of the intended measure. And be, sembly of the people : and consequeutly king thereupon, honestly told them, that the perCharles, when ibis opinion was given, bad not soo who should advise his majesty to take such yet, (by granting them the privilege of being a step, would be guilty of high treasou.' But represented by an assembly with a power to 1 do not know whether he considered Jamaica make laws and impose taxes for the public uses as still continuing in the state of a conquered of the island), divested bimself of his antecedent island, or not. If he did, ibis opinion of bis right to impose taxes on them, if such a right would be an opinion exactly in point to our prehad really belonged to him. It seems there sent subject, and directly contrary (as well as fore not unlikely that sir William Jones, when the opinion of sir William Jones, according to he gave this opinion, might consider the island the last account of it,) to the doctrine of lord of Jamaica as continuing still in its original Mansfield concerning the sole legislative au. stale of a conquered country, notwithstanding thority of the crown over conquered countries. most of the Spanish inbabitants had left it? " These two respectable opinions, against and, if he did consider it in that light, it is evi- the said sopposed legislative authority of the dent that this opinion of bis would, in such crown, may fairly be set in opposition to the case, be an opinion exactly in point to contra- opinion of sir Philip Yorke and sir Clement dict lord Mansfield's doctrine of the king's sole Wearg, so much relied on by lord Mansfield, legislative authority over conquered countries. in support of it.
* And, agreeably to this conjecture, I find, “ You now, I hope, are satisfied that lord in another account of this opinion, that sir Mansfield's peremptory assertions, that po William Jones did consider Jamaica as a con- doubts bad ever been entertained by any quered country, and expressly called it so, lawyers, before the said case of Campbell
and Hall,, concerning the king's sole legisla. | lord Mansfield and the court of King's-bench, tive authority over conquered countries,' are If it is to be so considered, I must needs think not quite agreeable to the truth, but that some that lord Mansfield and his brother judges will, lawyers of character in former times have by that opinion of theirs in their judgment on presumed to entertain a different opinion, and the case of Campbell and Hall, bave, indieven to tell the king's ministers that they did rectly, made a law of the most capital importso. And consequently you should shake off ance to Great Britaio and the Britisb domifrom your mind that over-great awe and de. nions. ference to that learned lord's opinion which the peremptory manner of his making those asser. “ E.-Your question is a very proper one, Lions had impressed upon it, and should boldly and not a very easy one to answer; there being venture to entertain that opinion upon the sub- no express law, nor even constant usage, that ject which, upon the full enquiry you have ascertains, in all cases, the degree of deference made into it, appears to you to be the most which is to be paid by courts of justice to the reasonable.
former judicial decisions of the same or other
courts of justice. And we have seen lord “ F.-I will endeavour to do so, as far as 1 Mansfield bimself, since he has been chief am able. But, I protest, I find it difficult ; as justice of the King's-bench, and his brother his authoritative manner of making these as judges of that court, in more than one instance, sertions does still retain some influence over determine a point of law in a manner directly my mind, notwithstanding you have now con- contrary to the determination of it by all the vinced me that they are neither altogether judges of the same court of King's.bench on true, por decisive of the matter in question, if a former occasion, though the said former dethey were true. However, upon the whole, 1 termination had been acquiesced in by the party do venture to conclude that the reasons be has against wbom it bad been made, and bad been given in support of his opinion, that the king taken and reputed for good law ever after, till alone has a legislative authority over conquered the new case in which lord Mansfield and the countries,' are far from being sufficient to other judges of the court of Kiug's-bench demaintain it. I should therefore continue to termined ihe point in a different manner. r hold the opinion which at first appeared to me particularly remember an instance of this kind most reasonable, to wit, that the king and par- in a case in which the names of the parties were liament conjointly, and not the king alone, bad Wyndham and Chetwynd, containing the quaa right to make laws for the inhabitants of con- lifications necessary to the three witnesses who, quered countries,' and to impose taxes on them, by a certain statute made to prevent frauds, are it it were not for one remaining difficulty, con required to attest and subscribe a will of lands, cerning which I must desire the assistance of in order to its validity. But the general rules your opinion. This difficulty is grounded on concerning the authority of judicial determithe authority wbich lord Mapsfield's doctrine nations of points of law I take to be as fol. may, perhaps, derive from the very circum- lows. slance of its being bis opinion, and having been "lo the first place, where a point of law has delivered by him, as such, in his judicial capa- been agitated in all the courts through which city on a question that brought the subject re- it may be carried by appeal, or writ of error, gularly before bim for his decision; more and bas been fiually determined by a judgment especially, if we consider the silence of the of the highest court of appeal, that is, of the other judges of the court of King's-bench, House of Lords, (for that is, in Great Britain, when lord Maosfield delivered this opinion, as the highest court of appeal both in matters of implying their concurrence with him in it. law and equity ;) such a determination is for in this case it may be said, that, on the reckoned to be of almost as much authority only occasion on which this doctrine of the with respect to the point so settled, as an act king's sole legislative power over conquered of parliament; or, at least, it is so considered countries' bas been brought into question before by all the ordinary courts of justice, though, an Euglish court of justice, it has been decided perbaps, the House of Lords itself wight, on in favour of the crown by the unanimous opi- another occasion, if they thougbt there was nion of all the judges of the court ; and that, very strong ground for it, determine it in a difwhatever the law might be before, such a deci- ferent mapper. siop must be considered as settling it for the fu- “ In the second place, when a point of law ture in favour of the said power of the crown, bas been fully argued, and solemnly deteror must be a peremptory guide to all future mined by one of the four great courts of Westcourts of justice in their decision of the same minster-hall, that is, the court of Chancery, question, as often as it shall occur before them. the court of King's-bench, the court of ComI should be glad to know, therefore, what you mon Pleas, and the Court of Exchequer, and think of this conclusion, and whether by the the party, against whom the judgment bas rules observed by English courts of justice been given, has acquiesced in it, and has forwith respect to points already decided by the born to bring an appeal, or a writ of error, same or other courts, such a question ought to into the next higber court of justice, to which be considered as having been decided for ever the right of revising the judgments of tbe first in favour of the crown by this one decision of court, and correcting the errors in them, be. Jongs; and such forbearance does not arise point, or points of law have been determined from the poverty or inability of the said party against bim; and the losing party acquiesces to bear the expence of prosecuting such writ in the said judgment, and brings no writ of of error, or appeal to the next higher court; error to reverse it; such an acquiescence of such a determination acquires a great degree the losing party can operate as a confirmation of respect and authority in Westminster-hall, of only those points of law which are deterand is usually adopted and followed by the mined against him, and not of those which are courts of justice in their subsequent determi- determined for him. In such a case, therenations of the same point of law, as often as it fore, there will be several determinations of comes before them. Yet it is not of quite so points of law, all deliberately made by the great autbority as a determination of the House same judges and in the same cause, which will of Lords upon a question brought there in the have different degrees of weight and authority, last resort: and we have sometimes seen such namely, the points determined in favour of the determioations overturned by subsequent de losing party, and the points determined agaiost terminations of the same or other courts of jus. him. For the points determined in favour of tice in Westminster-hall; as was done in the the losing party will have that degree of weight court of King's-bench in the case of Wyodham and authority which arises from the respect due and Chet wyod, which I just now mentioned to the learning, abilities, and integrity of the to you. Yet sucb overturvings of the former judges who have decided them, and to the desolemo determinations of courts of justice are liberate manner in which they have been convery vofrequent, and are not in general approv- sidered and discussed before they were decided ; ed of, though, perhaps, in some very strong but those which are determined against the cases, where the former determinations have losing party will, besides the weight and aubeen made upon very wrong priuciples, they thority arising from the foregoing, circummay be justifiable.
stances, be entitled to an additional degree of * In the third place, when a matter has been respect arising from the acquiescence of the losfully argued before one of the courts of West- ing party, which will shew that be, and his counminster-hall, and a solemo judgment bas been sel learned in the law, despair of baving those given upon it in favour of one of the parties; points determined in a differeot manner, if they and in the said judgment more than one point were to bring a writ of error for the purpose. of law bas been determined in favour of such “ These seem to me to be the different departy; and the losing party acquiesces in the grees of authority which are attributed by the said judgment, and forbears to bring a writ of English courts of justice to the aforesaid diferror for a reversal of it in a higher court of ferent sorts of judicial determinations of points justice; the determinations of such points of of law by former judges : which, I presume, law acquire a considerable degree of weight and you will agree with me in thinking reasonable. autbority in the estimation of lawyers and subsequent courts of justice, but yet are not quite “ F.-I enter very readily into these distincso much respected as the determinations in the tions between the different sorts of judicial de two former cases: and for this plain reason, terminations, and think them very natural and that, as more than one point of law are deter- reasonable. And, according to ibis gradation mined at the same time in favour of one of the of them, it seems to me that the opinion of lord contending parties and against the other, it is Mansfield, delivered in the case of Campbell uncertain, whether the losing party, when he and Hall, concerning the sole legislative auacquiesces under the whole judgment, and thority of the crown over conquered counforbears to bring a writ of error in a superior tries, (even supposing the other judges of the court to get it reversed, acquiesces in all the King's-bеych to have concurred with bim in poiots of law determined against him, or only it,) must be placed in the fourth, or lowest class in some, or one, of them; because, if only one of them. For in that case there is no room to of them is rightly determined against him, the iofer any thing, from the acquiescence of either judgment againsi bim would be affirmed upon of the parties, in favour of that opinion. For, a writ of error, as much as if all the points as to the defendant Hall, who was the losing bad been so determined. This uncertainty party, all that can be inferred from his acquiconcerning the particular points of law, in the escence in the judgment given against him in determination of which the losing party may that action is, that he and his counsel acquibe supposed to acquiesce, takes from the deter. esced in the opinion of the Court upon the 2d minatious of each of the points of law, that are point, of the immediate operation of the determined against him, some part of the king's proclamation of October 1763, as a bar weight and authority which such' determina- to the exercise of his antecedent legislative au. tions would otherwise derive from his acqui- thority,' and despaired of having it otherwise escence.
deterinined, if he should have brought it into “ And fourthly, if a matter has been fully ar- the House of Lords by writ of error.' And as gued before a court of justice in Westminster- to the plaintiff Campbell who gained his cause, ball, anda solemn judgment has been given upon he could not bring a writ of errot to reverse a it in favour of ope of the parties; and in the said judgment that was given in his favour. So that judgment one, or more iban one, point of law ibe opinion of lord Mansheld upon that first has been determined in bis favour, and another point must, indeed, be considered as the opinion
of that learned lord, and, per baps, of the whole) alone, without the concurrence of the parlia. court of King's-bench, upon a point that had ment, a power to make laws and impose taxes beeg fully argued before them, and must be at pleasure on the inhabitants of all countries entitled to all the respect, which is due to it on that are conquered by ihe British arms ? that account, but cannot derive any additional therefore bope, either, that the law upon weighị from the acquiescence of either of the this subject will soon be altered by an express parties under it; that is, it must be a judicial act of parliament for the purpose, or that the decision of the lowest of the four classes of question may again be brought ander the con: judicial decisions which you have been just sideration of some court of justice, and be now describing.,
there determined in a different manner, as the “ E.-It is exactly so. The opinion of lord Chetiynd, was determined, by lord Mansfield
case just now mentioned, of Wyndham and Mansfield upod that first point is a decision of himself and the other judges of the Kiņg'sthat fourth and lowest class. And therefore I bench, in a manner directly contrary, 10 a suppose that it would not be considered by the former determination of the same point of law. same or any otber court of justice in West in the same court of King's-bench, though the minster-hall, on any other occasion in which said former determination had been a decision the same point, • of the king's legislative of the second class. For it may be of terrible authority over conquered countries, should occur, as being absolutely binding and decisive constitution to have so enormous a power fixed
consequence to the freedom of the English of the question, so as to be entitled to the con
firmation of such court of justice, though the peringpently in the possession of the crowe. reasons on which it was founded should be en- “F.-I beartily join with you in these wishes: tirely disapproved by the judges of which such but doubt a little whether they are likely to be court should be composed; since we have seen, soon accomplished. However, if this question in the case of Wyndham and Chet wynd, were again to come before a court of justice, (which was determined by ford Mansfield him and the merits of the cause were to turn singly self) that even a decision of the second class is upon the decision of it, (which was not the case not always so considered. But yet it would in the action of Campbell against Hall,) I can
certainly have considerable weight with the hardly persuade myself that the judges of any
pears to you and me,) this opinion of lord peared, upon examination, to be so very weak,
" F:-My curiosity is, indeed, satisfied on Note to Assize Sermon preached at Cambridge this subject : but the pleasure I have had in the in the year 1769) that it is replete with sound enquiry is allayed with some mixture of un
and perspicuous reasoning. easiness arisiog from the weight that may be With respect to the application of the rethought to belong to that opinion of lord Mans- venue arising from the four and a half per cent. field. For how can any lover of liberty and duty, see some discussions in the House of the English constitution (as I most sincerely Lords on April 6, 1802, and in the House of profess myself to be) not be sorry to find, that Commons on March 30, 1802 ; on July 2, 1804, ihe only judicial decision that has been made Parl. Deb. vol. 2, p. 902, and on May 8, 1809, upon the subject, has ascribed to the crown Parl. Deb. rol. 14, p. 409,
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 220 Days of April: 16 GEORGE III. A. v. 1776. [Printed under an Order of the House of Lords.]
Monday, April 15, 1776.
The clerks assistant to the House of Lords, To the Court erected in Westmioster-ball, for and the clerk of the parliament. the Trial of Elizabe: h Duchess Dowager king's commission to the Lord High Steward,
Clerk of the crown in Chancery, bearing the of Kingston, for Bigamoy.
aod the clerk of the crown in the King's-beuch. ABOUT ten o'clock the Lords came from The masters in Chancery, two and two. their own Houise into tbe court erected in The judges, two and two. Westminster-hall, for the Trial of Elizabeth The peers eldest sons, two and two. duchess-dowager of Kingstou, io the manner Peers minors, two and two. followiog :
Cbester and Somerset heralds, The Lord High Steward's gentlemen atteo- Four serjeants at arms with their maces, two dants, two and two.
and two. * See the Trials of Mary Moders, vol. 6, sented to her being bailed, as there could be p. 273, and of Fielding, vol. 14, p. 1327, for tbe no doubt (he said) of her appearance to aña like offence.
swer to the indictment. + “Rex o. Duchess of KINGSTON.
“ Lord Mansfield. Though we should un
doubtedly bave bailed ber, it is better to take “ Mr. Wallace had moved on the part of the it as upon the consent of ihe prosecutor; and defendant, for a Certiorari to be directed to the she must be bound to appear in the House of justices of Oyer and Terminer, at Hicks's-ball, Lords when required, to answer to the indictto remove into the Court an indictment found ment, as well as to appear in this court. But against her, at the sessions there, for bigamy; as tbere is nothing against ber in this court, apd, upon the motion, the court granted the ber appearance bere may be dispensed with Writ.
for the future upon motion, without giving ber 4. But now lord Mansfield took notice to Mr. the trouble of actually appearing here in court Wallace, that the motion was irregular. For any more. a defeudaat has do right to remove an indict. * Bail was taken accordingly, berself being ment of felony from Hicks's-Hall, without the bound in 4,000l. and eacb of her four bail in consent of the prosecutor ; and in this case 1,0001. there was no consent, therefore his lordship "The recngoizance was as follows:said the writ issued improvidè, and must be England. Duchess dowager of Kingston, superseded.
• w bo stands ipdicted by the name of Eliza* Mr. Wallace said, the only object of reinov. beth, the wife of Augustus John Hervey, esq. ing the indictment was for the purpose of her is delivered to bail, upon a writ of Habeas being bajled; but per lord Mansfield, the pur- Corpus ad subjiciendum, for her appearance pose for which it was intended, makes no dif. in the court of our sovereign lord the king, ference. The next day Mr. Wallace moved before the king himself at Westminster, on for a Habeas Corpus, Mr. Justice Aston-having the first day of the next term, and so from granted a warrant for ber apprehension (as bad day to day, until she shall be discharged by been settled amongst the parties, as the pro- the said court, and not to depart the said court perest method to be takes) upon a certificate of without leave; and also for ber appearance the indictment being found.
• before our said lord the king in parliament, to “ The warrant and the return to it were read; ' answer to an indictment agaiost ber for feand then Mr. Wallace moved to bail ber. He • lony, whenever she shall be thereunto rementioned the suit in the spiritual court, upon • quired. By the Court. BURROW.' the proceedings there against Mr. Hervey, for "I have inserted this recognizance, ver. jactitation of marriage, and also the proceed- batim, because there was found only a single jogs in Chancery relating to-ber marriage; all instance of the like, (viz. of a recognizance these proceedings were put into court, and en- taken in this court to appear in parliament) tered as read, He observed, that she must, at which was that of the earl of Orrery, taken all erepts, be tried by ber peers, as Mr. Hervey and acknowledged before lord chief justice was now become earl of Bristol.
Pratt, on the 14th of March, 9 Geo. 1, for bis “ Mr. Bearcroft, for the prosecutor, con. appearance, ip the court of our lord the king,