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THE
Canadian Freeholder:
DIALOGUE II.
THE
Canadian Freeholder :
•
I N
THREE DIALOGUES
BETWEEN AN
ENGLISHMAN and a FRENCHMAN,
SETTLED IN CANADA.
SHEWING
The Sentiments of the Bulk of the Freeholders of Ca nada concerning the late Quebeck- Adi ; with fome Remarks on the Bofton-Charter A£t; and an Attempt to (hew the great Expediency of immediately repealing both thofe Acts of Parliament, and of making iome other ufeful Regulations and Concefiions to his Ma- jefty's American Subjects, as a Ground for a Recon ciliation with the United Colonies in America.
VOL. II.
LONDON: Sold by B. WHITE, HORACE'S HEAD, Fleet-Street,
M.DCC.LXX1X,
A 1 37
PREFACE,
THIS fecond Dialogue of The Canadian Freeholder contains an examination of the reafons and autho rities alledged by Lord Mansfield, the lord chief juftice of the Court of King's Bench, in fupport of the fol lowing dc&rine, which he laid down in the month of November, 1774, in delivering the judgement of the court in the cafe of Campbell and Hall, to wit, Thatj upon the conqueft of any country by the Briti/h arms^ and a fubjequent ceffion of it by its former Sovereign to the Crown of Great-Bri tain , the king becomes the fole legijlator of fuch country, and has a right td make laws for, and impofe taxes on^ the
inhabi-
7266S2
VI
PREFACE.
Inhabitants of it by his Jingle autfa, ity^ or without the concurrence of the par liament ; unlefs the faid authority fiatl have been previoujly limit ed^ or reftrain- ed> by an aft of parliament antecedent to fuch conquejf and cejjion" This is the main fubjedt of this dialogue : but there are fome other matters, re lating principally to the government of the American colonies, occafionally introduced in it. The more particu lar contents of it may be defcribed as follows.
The 1 1 firft pages are taken up in ftating the two different opinions which lawyers have entertained upon this fubject, and the doctrine laid down by Lord Mansfield in delivering the aforefaid judgement of the Court of King's Bench.
The i 2th and i3th pages contain a ftate of the three grounds, or rea- fons, affigned by Lord Mansfield in fupport of the faid doctrine ; to wit, i ft, The king's right to make war
and
PREFACE.
and peace ; sdly, The practice which has taken place with refpect to coun tries conquered by the Crown of England ; and gdly, The opinions of judges and other lawyers of eminence upon the fubje&.
Pages 13, 14, 15, 16, 17, 1 8, 19, 2O5 are employed in examining the firft of the laid three reafons, which is ftated in Lord Mansfield's own words in page 15.
Page 21, &c. — 40, are employed in fhewing the importance of this queftion to all the fubjecls of the Crown of Great-Britain, and the mif- chievous confequences to the liberty of Great-Britain itfelf that might fol low from Lord Mansfield's doctrine.
Pages 41, 42, 43, and 44, contain an argument that has been ufed by fome private lawyers in fupport of Lord Mansfield's opinion. This ar gument is anfwercd, and the fubjecl: further examined upon the footing of reafon and the general principles of
law,
Vlll
PREFACE.
law, in the following pages down to page 63 ; which concludes that firft part of the difcuffion of this queftion.
In page 64 Lord Mansfield's fecond head of argument, from hiftorical precedents of countries conquered by the Crown of Great-Britain, is taken into confideration.
In pages 65 and 66 Lord Manf- field's affertions concerning Ireland are ftated. And they are examined in the following pages down to
Page 75- Page 75, &c. — 79, contain fome
remarks concerning the legislative authority over the inhabitants of the ifland of Grenada in the Weft-Indies, grounded on the Stat. 6 Geo. I. con^ cerning Ireland, and on the 6 Geo. IIL concerning the fupreme legislative authority of the parliament of Great- Britain over all the Britifh. dominions in America., which was a declaratory ftatute.
In
PREFACE. ix
In pages 79 and 80 Lord Mansfield's aflertions concerning Wales are ftated. And they are examined in the follow ing pages down to page 150; which contain fome curious particulars con cerning the antient ftate of Wales be fore its final reduction by king Edw. I. in the year 1284, fupported by the teftimony of the venerable hiftorian, ^tatthew Paris, and other refpectable authorities.
In page 151 the other places men tioned by Lord Mansfield as inftances of the exercife of the king's fole legii- lative power over conquered countries, are taken into consideration j which are, Berwick upon Tweed, the town of: Calais in France, the dutchy of Guienne, or Gafcony, in the fame kingdom, the province of New-York in North- America, and the town of Gibraltar and iiland of Minorca, which were formerly a part of the Spanifh •monarchy.
b Page
x PREFACE.
Page 152 contains Lord Mansfield's words concerning the town of Berwick upon Tweed ; which were very few. It alfo contains remarks upon them, which are continued in pages 153,
154- Page 155 contains Lord Mansfield's
words concerning the dutchy of Gui- cnne, or Gafcony, and the town of
Calais. And pages 156, &c. 164,
contain an examination of them.
In page 164 the political fituation of the province of New- York is taken into confideration. Lord Mansfield's aflertions concerning it are cited in pages 166, 167. In pages 168, &c. — 273, an account is given of the man ner in which that province was claimed and conquered by king Charles the sd, taken from Mr. Smith's Hiftory of it j by which it appears that the faid province was not confidered by king Charles the 2d as a conquered country, fcut as a planted country ^ namely, as a
part
PREFACE. xi
part of the more antient Englifli co lony, or plantation, of New-England.
In page 173 an inquiry is begun concerning the legiflative authority claimed by the Crown over colonies planted by Englishmen ; and it is con* tinued in the following pages down to page 200. It contains (amongft other things that are curious and interefting to fuch perfons as are defirous of knowing the political ftate and hiftory of the American colonies,) an account of the government of the province of New- York from the conqueft of it in 1664 to the year 1691, taken from Mr. Smith's Hiftory aforefaid This account is contained in pages 186, 187, 6cc. — 196.
In page 200 an inference is drawn from the declaratory ftatute of 6 Geo. III. 1766, to fhew that the king alone does not now claim to be the fole legiflator of any of the American dominions of the Crown. And in pages 300 and 201 a ^like inference is
b 2 drawn,
x
drawn from the late act for the government of the province of Que- beck.
In pages 201 and 202, anobjedion is made to the laft inference : which objection is grounded on the king's proclamation of October, 1763, which is underftood by fome perfons to have contained an immediate resignation, on the part of the Crown, of its legiflative authority over the four new govern ments of Quebeck, Eaft- Florida, Weft- Florida, and Grenada, which were creeled by it. This objection is exa mined in the following pages down to page 2 i 5.
In page 216 another objection is made to the fame inference from the late Quebeck-act. This objection is grounded on the conduct of the Crown with refpect to the province of Que beck from the roth of Auguft, 1764, when the civil government of the faid province was eftablifhed by the pub lication of General Murray's commif-
fion
PREFACE. xiii
fion of civil governour, to the year 1774, in which the late Quebeck-a6t was palled. And it is examined and anfwered in the following pages, down* to page 224.
Pages 224,80: — 240, contain fome remarks on the nature of inftrudtions to governours of provinces under the king's fignet and fign-manual? and on the difference between fuch inftruo tions and the commiflions of govern ours under the great feal, and on a remarkable claufe in thofe commiffions, which contains a reference to the in- ftructionsj and feems intended to adopt them, (as it were,) into the commif fions, or give them an equal degree of authority with the commiflions them- felves, without reciting them in the faid commiffions.
Pages 241, &c. 268, contain a
conjecture concerning the reafons that may have been the occafion of the infer tion of the faid claufe of reference in the commiffions of governours under
the
PREFACE,
xiv
the great feal ; with fome remarks on the proceedings of fecretaries of ftate in England, and on the danger of per mitting the fervants of the Crown ever to exert extraordinary powers, not agreeable to the known laws of the land, under pretences of publick dan ger or neceffity.
Pages 269, 8cc. — 277, contain fome remarks on the ordinances pafTed by the gprernour and council of the pro vince of Quebeck before the late Quebeck-acl:.
In page 277 the main argument concerning the king's legislative autho rity over conquered countries is refumed. And in pages- 278, 279, Lord Manf- field's words concerning the exercife of the faid authority in Gibraltar and the ifland of Minorca are recited.
In pages 279, 280, Lord Mansfield's aflertions concerning Gibraltar are exa mined : and the fame thing is done in pages 281, 282, &c. — 288, with re- fpecl: to his aflertions .concerning Mi norca.
PREFACE. xv
norca. And herewith ends the exa mination of Lord Mansfield's fecond head of argument in fupport of the king's fole legislative authority over conquered countries^ which is derived from hiftorical precedents, or exam ples.
The remaining part of Lord Manf- field's fpeech in delivering the judge ment of the Court of King's Bench in. the cafe of Campbell and Hall, is re cited in pages 289, &c,~ -295 ; in which is contained his third head of argument in fupport of the faid legi- flative authority of the crown, which is grounded on the opinion of judges and other lawyers of learning and emi« nence, and particularly on the opinion of the judges in Calvin's cafe in the reign of king James the ift and on that of Sir Philip Yorke (who was af terwards Lord Chancellor and Earl of Hardwicke,) and Sir Clement Wearg in the year 1722 concerning the ifland of Jamaica, when they were in the
offices
xvi PREFACE.
offices of attorney and follicitor gene ral to king George the ift.
Page 296, &c. --300 con tain re marks on thofe two authorities, fhewing that the opinion of the judges in Calvin's cafe, inftead of favouring the dodtrine advanced by Lord Mansfield, was really contrary to it ; and that the opinion of Sir Philip Yorke and Sir Clement Wearg, (which is acknow ledged to have been agreeable to Lord Mansfield's doctrine,) was, according to Lord Mansfield's account of it, a very hafty opinion, upon which thofe learned lawyers appear to have beftow- ed very little attention, and that it mufl alfo be confidered as having but a fmall degree of authority in deciding a matter of this importance in favour of the Crown, on account of the byafs which thofe gentlemen muft be fup- pofed to have had upon their minds in favour of that fide of the queftion, from their pofleffion of the offices of attorney and follicitor general.
In
PREFACE. xvii
In page 300 the authority of Cal vin's cafe is further confidered ; and in the following pages 301, &c.~ 323, a very full account is given of that famous cafe, with a copious extract from it : which is followed by fome remarks upon the faid cafe in pages 323, 8cc. — 328.
Pages 328 and 329 contain a con jecture concerning the caufe of Lord Mansfield's citing the opinion of the judges in Calvin's cafe as an opinion in fupport of his dodtrine of the king's fole legiilative authority over conquer ed countries, though in truth it makes againft the faid dodrine.
Pages 330, &c. — 342 contain an hiftorical account of the difputes in the beginning of king James the rft's reign concerning the right of the Poft nati) (or perfons born in Scotland after the acceffion of kino- Tames to the
O J
crown of England,) to the privileges of natural-born fubjecls of the crown of England ; which gave, rife to the aforefaid cafe of Calvin.
c Pages
xviii PREFACE,
Pages 343, 8cc. — 347, contain an inquiry how far the aforefaid opinion of Lord Mansfield concerning the power of the Crown over conquered countries, delivered in the faid judge ment in the cafe of Campbell and Hall, ought to be confidered as the opinion of the other judges of the Court of King's Bench.
Pages 347, &c. — 366 contain a recapitulation of the principal con- clufions eftablifhed in the foregoing pages in opposition to Lord Manf- field's argument in fupport of the fole legislative power of the Crown over conquered countries.
Pages 367, &c. — 370 contain re marks on Lord Mansfield's peremptory manner of afferting the fole legislative authority of the Crown over conquered countries.
Pages 370, 371 contain a remark on Lord Mansfield's firft aSTertion on this fubjedt, viz. " That the kings legijlative right over a conqueft has never been dented in Weftminfter H(?ll."
Pages
PREFACE. xk
Pages 372 and 373 contain a re mark on his fecond aflertion, " 'That the kings legijlative right over a conqueft was never queftioned in parliament"
Pages 373, &c. 379, contain
fome remarks on his third aflertion, <c That no book^ no faying of a judge ? no opinion of any counfel^ publick or pri- vate, has been cited on the other fide j " together with an extract from a learned modern treatife on the Law of Nations written by an eminent author, of the name of Vattel^ which is diredly con trary to Lord Mansfield's doctrine of the king's being the fole legiflator of conquered countries, and which was cited in one of the arguments of the faid cafe of Campbell and Hall before Lord Mansfield, by the late ingenious Mr. Allen^ one of the counfel of the plaintiff Campbell.
Pages 379, &c. — 385, contain dif ferent accounts of an opinion given by that learned and upright lawyer, Sir William Jones, while he was at- c 2 tornejr
xx PREFACE.
torney general to king Charles the 2d, and probably about the year 1677, againft the fole legiflative authority of the Crown over the American plantations.
Pages 385 and 386 contain an ac count of an opinion of Mr. Lechmere, in the year 1717, while he was at torney-general to king George the i ft, that is nearly to the fame effect with that of Sir William Jones, It is alfo remarked in page 386 that thefe two opinions of Sir William Jones and Mr. Lechmere may fairly be fet in oppoiition to the opinion of Sir Phi lip Yorke and Sir Clement Wearg in the year 1722.
In page 387 an inquiry is begun concerning the effect of Lord Manf- field's declaration of his opinion, in favour of the fole legiflative authority of the Crown over conquered coun tries, in the judgement he delivered in the faid cafe of Campbell and Hall; that is, whether, or no, the faid de claration
PREFACE,
claration of his opinion is a decisive eftablifhment of that doctrine, though, it ihould before have been held to be doubtful or erroneous. This inquiry is profecuted in the following pages 388, 389, &c. to page 399 : and in the courfe of it the determinations of courts of juftice are divided into four different claffes, that have different degrees of weight and authority be longing to them ; and it is {hewn that this decifion of the Court of King's Bench in favour of the king's fole legislative authority over con quered countries, (even if we fuppofe that the other judges of that court concurred with Lord Mansfield in making it,) is only a decifion of the fourth, or loweft, clafs.
The few remaining pages of the Dialogue contain a remark on the expediency of fettling the law on this fubject by acl: of parliament, in a manner contrary to Lord Manf- field's dodlrine,
This
xxii PREFACE.
This is as particular an account of the contents of this Second Dia logue as feems neceflary to be given of them in a Preface, in order to apprize the reader beforehand of the nature of the entertainment that is fet before him. They are drawn out more fully and diftinctly in the ab- ftracls of them which I have caufed to be printed in a fmaller letter in the margin of the book, and which, I hope, the reader will find to be very convenient to him in referring to par ticular parts of the Dialogue after he has read it.
THE
THE
Canadian Freeholder.
.DIALOGUE II. '
FRENCHMAN.
I HAVE waited with impatience for this ofthe Ieg;f- r lative power
lecond meeting, m which you nave of the Crown
promifed to inform me of the dodrine of ^ the law of England concerning the extent countries. of the prerogative of the crown of Great- Britain with refpecl to conquered countries. I hope you are now at leifure to perform your promife, and let me know what I ought to think upon this important (ubjecl. For, as I am myfelf become a fubje£t of VOL. II. B his
t 2 ]
his Majefty in confequence of the conqueft of Canada in the late war, it is natural for me to defire to know the whole of the re lation in which I ftood to him after the cefTion of the country to the Crown by the late peace, and before the- publication of the royal proclamation of October 1763, which made us partakers of the Englifh laws and conftitution, but which, to our great misfortune, has been refcinded by the late Quebeck-adt.
ENGLISHMAN,
Uncertainty I remember my promife, and am ready
of the law J /
upon this to ufe my belt endeavours to perform it. But I much fear they will not be fuccefsful. Indeed they ha idly ca-n be fo in the degree you wim for, fo as to enable you to form a clear and pofitive opinion upon this quef- tion on the one fide or the other : becaufe the Englim lawyers themielves are divided The opinion in their opinions upon it. For there are lawyers upon feme lawyers who think that the king has no more power over conquered countries, that have been finally ceded to the crown, of Great- Britain by their former fovereigns,
than
{ 3 ]
than over countries that have bren planted by colonies of Englishmen with the per- miflion and encouragement of the Crown, or than over Great-Britain itfelf; that is, that he has the whole of the executive power over them, but only a part of the legiflative. He may therefore, according to this opinion, appoint the goveruours, and judges, and fherifFs, and juflices of the peace, and other officers of juftice, in fuch con^ quered countries ; and may receive, and dif- pofe of, all the pubiick revenues already legally fubfifting in them, and appoint the neceflary officers for that purpofe ; and may raife, and arm, and command, the militia of fuch countries, in cafe they mould be either invaded by foreign enemies or disturbed by domeftick infurredions : but he cannot make laws for them, or impofe new taxes on them, by his fingle authority; but only in conjunction with the two houfes of the Britifri parliament, or with an ailembJy of reprefentatives chofen by the inhabitants of* thofe countries themfelves refpedively. This is the opinion of one fet of lawyers in Eng land. But there are other lawyers of great B 2 eminence,
power to the Crown.
[ 4 1
The opinion eminence, who afcribe to the crown a greater
ot another .
fetofiawyers degree of legiilative power over conquered an^ ceded countries than over Great- Britain, or jjje provinces planted by Englifh colonies. But yet, if I understand them right, they do not allow the king a compleat and entire legiflative authority over fuch countries, but acknowledge his power to be limited by fuch previous acts of parliament, made be fore fuch conquered countries were ac quired, ae were exprcfsly declared to com prehend them when they mould be acquired ; to all which acts either himfelf or his pre- deceflbrs mutt have given their royal aflent. Of this kind is the ftatute of the firft year of queen Elizabeth, for abolishing the autho rity of the pope, and all other foreign jurif- diction, in fpiritual matters in England and the other dominions of the Crown, which enacts, " that no foreign prince, perfon, " prelate, ftate, cr potentate, fpiritual or " temporal, fhall at any time after the laft " day of the then feffion of parliament, ufe, " enjoy, or exercife, any manner of power, " jurifdidion, fnperiority, authority, pre- <l eminence, or privilege, fpiritual or ecclefi-
<l aftical,
t 5 1
" aftical, within this realm, or within
" other your Majeflys dominions and countries,
tc that now be, or be re after fhall be; but
* from thenceforth the fame mall be clearly
" abolimed out of this realm and all other
" your Majefty's dominions for ever." And
of this kind is the ftatute of the fifteenth
year of the reign of king Charles II. chapter
7, intitled, 4< An aft for the encouragement
" of trade j" in the feventh fedion of which
it is enacted, " that, after the 25th day of
" March, 1664, no commodity of the
" growth or manufacture of Europe mall
" be imported into any land, ifland, plant-
<{ ation, colony, territory, or place, to his
<( Majefty belonging, or which foall hereafter
" belong unto, or be in the pojjejjion cfy his
<c Majefty, his heirs and fuccejjors^ in Afia,
t£ Africa, or America, (Tangier only ex-
<c cepted) but what mail be laden and
" fhipped in England, Wales, or the town
" of Berwick upon Tweed, and in Englim-
*' built fhipping," And of this kind alfo
is the ftatute of the 7th and 8th years of
the reign of king William and queen Mary,
chap, 22, intitled, " An afl for preventing
" frauds,
( 6 ]
<f frauds^ and regulating abitfes. In the Plant- <c ation Trade" by which it is enacted, " That, after the 25th day of March in " the year 1698, no goods or merchandizes " whatfoever {hall be imported into, or ex- ** ported out of, any colony, or plantation, " to his Majefty in Afia, Africa, or Ame- " rica, belonging, or in his pofTelTion, or c< which may hereafter belong wito, or be in " the poffejjion of, his Majefty, his heirsy or " fuccejjors, in any fhip or bottom but what " is or ihall be of the built of England, or " of the built of Ireland, or of the built of " the faid colonies or plantations." Thefe ads of parliament, and others of the like kind, or which exprefsly relate to the fu ture, as well as prefent, dominions of the Crown, are confidered by thefe latter lawyers as reftraints upon the legiflative authority of the Crown over conquered and ceded coun tries ; infomuch that they hold that the king cannot, by his Tingle authority, either repeal thefe ads with refpecl to fuch countries, or make any other laws for fuch countries that fliali be inconfiftent with them. But this ihey declare to be the only limitation of the
king's
t 7 1
king's original legiflative authority over fuch countries immediately after the conqueft and ceffion of them, and affirm that in all other matters, not fettled by fuch previous acts of parliament, he may, after the conqueft and ceffion of any country, make and un make laws for it by his own (ingle authority, in whatever manner he (hall think fit, as freely as he may make and unmake laws for the kingdom, or ifland, of Great-Britain in conjunction with both houfes of parlia ment. This they confider as the original legiflative- authority belonging to the Crown over a conquered and ceded country in con- fequence of the conqueft and ceffion of it. But they allow that the king may after wards, by his own act under the great feal of Great-Britain, diveft himfelf and his fuc- ceflbrs of this high legiflative authority, and grant to the people of the conquered and ceded country the privilege of being bound by no laws but fuch as (hall be made for them either by the king and parliament of Great-Britain, or by the king, or his repre- fentative the governour of fuch ceded coun try, in conjunction with the reprefentatives
of
The latter
beenladopted by Ld. Mans-
field and the
other judges
of King's- Bench in
England,
[ 8 ]
of its inhabitants. And, when this privilege once been fo granted by the Crown to the inha bitants of fuch a ceded country, thefe lawyers hold that it can never be refumed except by act of parliament. The opinion of thefe latter lawyers feems beft intitled to be confidered as ^ } w upon this fubjecl, becaufe it has been
J
folemnly adopted and declared by lord Mans- field, the chief juftice of the King's-Bench jn England, and the other judges of that
J &
great court, in their judgement on the cafe above-mentioned of Campbell againft Hall. For they then declared that the faid four and a half per cent, duty impofed on the inhabi tants of Grenada by the king's letters patent of July, 1764, and which the plaintiff Campbell had been compelled to pay to the defendant Hall, (who was the collector of the cuftoms in that ifland) on certain fugars of the growth of that ifland which he, the faid Campbell^ had exported from thence, was illegally impofed, and ought not to have been collected , merely becaufe the king had, by his proclamation above-men tioned, of October, 1763, (which was ante cedent to the faid letters patent of July,
1764,
[ 9 1
vtfhich impofed the faid duty,) di verted himfelf of the power he had before poiTeffed, by virtue of the conqueft and cefiion of the faid ifland, of making laws and impofing taxes on the inhabitants of it at his pleafure ; and that, if the faid duty of four and a half per cent, on goods exported had been impofed by his Majefty before the faid proclamation of October, 1763, (which communicated to the inhabitants of Grenada the free conftitution of the other royal go vernments in America) had been published,, it would have been legally impofed, and the plaintiff Campbell would have been legally bound to pay it.
. This was the judgement of the Court of King's-Bench in that celebrated caufe, which was argued three different times before them by fome. of the ableft lawyers at the Englilh bar. And therefore I think it may be laid to be now the law of England upon this fubject, there being (as I am told) no other decifion upon this point, either one way or « the other, in all the volumes of the Ehglifh law. Yet, if it were not for this great Vo*. II. C authority,
Yet the for- authority, I fliould, from th« mere reafon moft of the thing, have been inclined to the opi-
tnc
King, Lords, and Commons conjointly, who are the legifkture of Great-Britain itfelf, muft necefTarily become the legiflature of every country which, by conqueft or ceffion, be comes dependant on Great-Britain j and, in general, that that man, or body of men, which poflefles the right of making laws for any conquering country, muft of courfe be come poflefled of the fame right with refpecl to every country which is conquered by, and ceded to, it.
FRENCHMAN.
That feems to be a much more rational opinion than the other, which, you fay, has been adopted by the judges of the court of King's-Bench in England, fuppofing the point to be quite new and open to arguments de duced from reafon only and the general principles of government and the law of nations. I therefore imagine there muft have been fome pofitive law, or fome decifion of a court of juftice, that either eftablimed, or
feemed
f 11 J
feemed to acknowledge, the other opinion, or that the practice with refpect to countries conquered by the crown of Great-Britain has been favourable to it. For without fome fuch powerful argument from authority it is hardly to be conceived that thofe learned and able judges would have determined, that the king of Great-Britain, who, in his fingle capacity, is only the firft magiftrate of that kingdom, and intruded with the exe cutive power of 'the (late, but not with that of making or repealing laws for it, except with the concurrence of the parliament, fhould, upon conquering another country with the arms and treafure of Great-Britain, become inftantly poflefled of an abfolute power of making what laws he pica fed for that country without any concurrence of the parliament of the nation by whofe arms and for whofe fake the conqueft was made. I therefore defire you would inform me upon what grounds the judges of the court of King's-Bench in England founded that opi nion of the king's being the abfolute legifla- tor of all countries that are conquered by the Britilh arms except in thofe points in C 2 which
The reafons affigned by Lord Mans field in {up- port of the latter opini on.
the
king's right of making peace and war.
Secondly, the practice which has taken place with refpect to conquered countries.
[ IZ ]
which his legiflative power is retrained either by a6ts of parliament made before the con- queft of inch countries, or by acls of par liament, or royal proclamations or charters, or other ads of ftate, made by himfeif after the conqueft of them.
ENGLISHMAN.
The reafons affigned by the lord Mans field, the chief juftice of the court of King's- Bench, in delivering the judgement of the faid court in the aforefaid cafe of Campbell and Hall, in fupport of this opinion of the legiflative power of the Crown over con quered countries, feem to be reducible to thefe three ; to wit, Firft, the king's acknow ledged right of making peace and war, which he fuppofed to include in it the power of making laws and impofing taxes on the conquered people ; Secondly, the practice which has taken place with refpecl to the countries which have, from time to time, been conquered by the crown of England, or Great-Britain, fuch as Ireland, Wales, Berwick upon Tweed, and Calais, and more efpecially the little territories of Gibraltar
and
I n !
and the ifland of Minorca, which have been conquered from the crown of Spain, and ceded to, and enjoyed by, the crown of Great-Britain ever fince the peace of Utrechtj and, Thirdly, the opinions of former judges and eminent lawyers upon this fubjeft, tefti- fied by occafional and collateral declarations of the judges concerning it, or by the an^ fwers given by lawyers out of court to quef-. tions of law upon which they were con- fulted, there having been no exprefs decifion upon the point before that in the faid cafe of Campbell and Hall. But none of thefe reafons appear to me to be very fatisfaclory.
FRENCHMAN.
The firft reafon, which is derived from Inefficiency the king's right of making peace and war, I think I can perceive the weakness of* For why fhould the right of making peace and retaining a conquered country by the ccffion of its former fovereign upon certain conditions agreed upon with the faid fove reign, intitle the new king to govern the inhabitants of fuch conquered country for ever after according to his fingle will and
pleafure ?
Thirdly, the opinions of judges, given occafionally in deciding upon other fubjecls ; and the opinions of lawyers, given out of court upon cafes concer ning which they were confuhed.
It is more reasonable to fuppofe that the king's abfolute power over a conquered country, be ing fonnded on neceflity, ihould ceafe at the inflant of the ceffion oftfceeountry by a peace.
( 14 I
pleafure ? I can fee no ground for fuch a conclusion ; but mould rather think that the king's abfolute power over fuch a country (which power I will fuppofe to have conti nued during the war, from the neceflity of the cafe j) muft ceafe at the very inftant of the ceffion of it by a peace, when things re turn from their unnatural and violent ftate into a ftate of tranquillity and civil govern ment. And from that moment I mould imagine that the conquered inhabitants, who had been permitted, and had chofen, to re main in the ceded country and take the oath of allegiance to the new iovereign, would become one people with the conquering na tion, and intitled to partake of the fame government with them, fo as to be governed by the king, lords and commons conjointly, when that is the legiflature of the conquering country, (as is the cafe in England,) and to become fubject to the king alone in fuch countries only as are governed by abfolute monarchs.
ENG-
[ >5 1
ENGLISHMAN.
I intirely agree with you in your opinion of the infufficiency of this firft reafon of the fuppofed abfolute power of the Crown over conquered countries. But that you may be the better able to judge of it, I will repeat to you, as nearly as I can recollect them, the words in which it was exprefled by lord Mansfield in delivering that famous judge- Lord Msn*. ment. It was nearly in thefe words. " The ner Of
<e king has a power to grant or refufe a ca- l,hl
firft xcafoc.
c pitulation to the conquered enemy. If
(C he refufes it, and puts the inhabitants of
" the conquered country to the fword, or
" extirpates them; as he obtains the country
" by conqueft, the lands of it are his, and
<c he may grant them to whom he pleafes :
<c and, if he plants a colony upon them,
" the new fettlers will hold the mares of
c< the faid lands which mall have been allotted
•
" them, fubject to the prerogative of the <c conqueror. If, on the other hand, he " does not put to the fword, or extirpate, *e the old inhabitants, but receives tiiem into f J his obedience^ and grants them a conti*
** nuance
<c cc cc
(C
Cf
cc ft cc cc cc
Obfcurity andconf'ufion of the forego ing words; in which three powers, quite diftind in their nature from each other, are confounded together.
Firft, the power of im- pofmg terms upon the con- quer'd people at the time of the conquelt.
t 16 1
nuance of their property in their own lands, he has power to impofe a tax upon them. He is intrufted with the terms of making peace at his difcretidn ; and he may retain the conqueft or yield it up on fuch conditions as he mall think fit to agree to. This is not a matter of diiputed right. It has hitherto been uncontru- verted that the king may change a part, or all, of the political form of govern ment over a conquered dominion." .
FRENCHMAN.
*Thefe words feem to be very obfcure. They jumble together in a ftrange manner three things that are in their nature perfectly diftincl -y namely, in the nrft place, the power of the conquering king, at the mo ment of the conqueft, to grant or re f life a capitulation, and to put the inhabitants to the fword, or banifli them from the country, and take pofleffion of their lands, or to grant them their lives and the continuance of the pofleflion of their lands and other property, or to grant them their lives only and deprive them of their property, or, in fhort, to
impofe
t >7 i I
impofe fucl> terms upon them as he (hall
think proper : and, fecondly, the power of Se«>n<My» A»
r power of re-
cither relinquishing the conquered country ftoring the
at the end of the war by a ceffion of it to country^ its
its former fovereien, or retaining it as a per- fo.rmer fove-
reign by a
manent part of the conquering king's domi- treaty of
r c rr if peace* or of
nions, in confequence or a celiion made of retaining the
it to him by its former fovereign, (as was Pcaceableand
t o ' permanent
the cafe with refpedt to Canada and Grenada poffeffionof it
... , by means of a
in the late war}) and that upon fuch terms ceffionofitby
of favour and indulgence to the inhabitants JjSJT***
of fuch ceded country as mall be agreed on
in the treaty of peace between the old and
new fovereigns of it, by which it is ceded to
the new fovereign ; and, thirdly and laftly, Thirdly* the
i r i - r i • i i • permanent
the power or making laws lor the inhabitants powerofmak-
of fuch conquered and ceded country, and Inhabitants,"
of imposing taxes upon them, after the laid and imP°flng
1 ' ' taxes on them*
final cenion of it to the new fovereign by after the final
the treaty of peace by which the war is the 'peace" * concluded. Theu. three powers are cer tainly diftinct from each other; and it is extreamly poffible that the king of Great- Britain may be pofTsfled of the two former powers by the conftitution of the Britifh government, (which, I underftand, has VOL. II. D vefhd
[ ,8 ]
verted in the king alone the right of making peace and war,) and yet not have a right to the laft power, which can be exerted only when hoth the war and peace are com- pleatly terminated. And yet all the three powers feem, in thofe words you have men tioned of lord Mansfield, to be mingled together and confidered in the lump^ as if they were one and the fame power, or ne- csfiarily connected with each other.
ENGLISHMAN.
I agree with you" in thinking that there is in thofe words of Lord Mansfield the confufion you have defcribed ; which is indeed furprizing in a perfon of fuch emi nent abilities, and fo much celebrated for his powers of reafoning, The three powers you have mentioned are certainly diftinct from each other ; and £v 2 pofTefTion of the firft of them, or even of the firft and fa- cond of them, by no means implies a right The firfl of to the pofleffion of the third. The firft of
the aforefaid . .
powers feems thefe powers feems to be implied in the right
the1Ipower °^ Baking war, which is generally acknow-
«*kng ledged to be a part of the king of Great-
\VJLC* .
Britain's
[ '9 ]
Britain's prerogative : and the fecond of thefe powers feems to be implied in the right of making peace, which is alfo confidered as a part of his Majefty's prerogative, though of late years it feems to have been the practice, (and it is moft undoubtedly very reafonablej) for his Majefty to confult his parliament upon the terms of the intended peace, be fore he finally concludes it. But tZe third power, to wit, that of making laws for the inhabitants of the conquered and ceded country, and impofing taxes on them, after the country has been finally ceded by a treaty of peace, and is thereby become a permanent part of the dominions cf the Crown, feems to have no conneclion with the right of making either war or peace ; but, if it belongs at all to the Crown, muft belong to it upon fome other ground than its porTeflion of either of thofe rights, and mufl be a part of the permanent, quiet, and (if I may fo exprefs it,) civil prerogative of the Crown, which it porTeftes independently of its military prerogative, and for the pur- pofes of civil government only, in times of profound peace and tranquillity. I have, D 2 however,
And the fe-
cond in the powerof mak ing peace.
But the third is not necefia- rily conneded with cither the pcmerofmak- ingwar.orthe powerof mak ing peace.
[ 20 ]
But there are however, heard fome learned lawyers in
learned law- . _ . . .
vers in Eng- private convcrfation declare it to be their
fcHbe^hV" °P'mion3 that> bY the Iaw of England, the
third power king has fuch a legiflative power over con- to the Crown, and conceive quered and ceded countries; and, when
frx>m° the °W prefled to explain the grounds of their opi- king's right of nionj they have faid they conceived fuch a
making war • '••
and peace. power to be implied in, or to follow from, the kind's right of making peace and war, and the abfolute power which he acquires, or may acquire, by conqueft over the lives and properties of the conquered people, if no capitulation has been granted to them to the diminution of it, either by himfelf or his generals who act by his authority. This kind of reafoning I have fometimes heard ufed by lawyers upon this fubjed, before the decifion of the aforefaid cafe of Campbell and Hall : and it feems to be the fame with that which is briefly and obfcurely contained in thofe words of Lord Mansfield which we have been confidering. But both then and now I have always thought it extreamly in- conclufive and unfatisfaclory.
FRENCH^
[ at ]
FRENCHMAN.
J beg you would mention, as fully and clearly as you can, the manner in which the lawyers you mention ftated their argument, fuch as it was, and the manner in which you thought it might be anfwered. For, though I am already of opinion that this argument was by no means concluiive, yet I fliould be glad to hear the matter difcufled The
r ii /yi i T i • i • whether the
in as full a manner as poflible, as I think it king is, or ii
a moft important fubjeft. For, in truth, I j"0'^ J0^.
can hardly conceive a law-queftion that can countries con-
be more curious and interefting than this of Britifli arms?
the fuppofed right of the crown of Great- Jjflj*Jg*1'
Britain, independently of the parliament, to anc«* make laws for, and impofe taxes on, the inhabitants of the countries that may be
conquered by the Britifh arms, upon which Itconcerns.in
the fate and political fituation of thoufands, Ihdnhatota"^
and, if we turn our eyes towards the Eaft- oftheconque-
T ,. r MI- r red countries.
Indies, even or millions, of people may depend.
ENG-
ENGLISHMAN.
And, in the You might have added that the fate of
fecond place, .... ~, T-» • • • /-
it concerns e- the inhabitants or Great-Britain itfelf does bfuntf 'of a" l&ewife depend upon this queftion. For, Great-Britain jf the king ihould conquer and keep pof- feffion of fome of the rich provinces of Indoftan, and exercife this fuppofed right of levying taxes upon them without the con currence of his parliament, he might foon increafe his revenue to fuch a degree as to be able to pay his fleet and "army, and carry on the government, without the affiftance of the parliament. And in fach an event he might fafely lay afide the ufe of parliaments, as their meetings depend intirely upon his pleafure, there being no law now in force that authorizes the members of either houfe of parliament to meet at a certain time of their own accord without the king's fum-
o
mons or appointment. And if this mould be done, it is eafy to forefee that, in a few years, the very exiflence of the Britim pw- liament might be forgot, or become a mere hiftorical event, known only to the fpecula-
tive
[ 23 1
tive inquirers .into the Englifh hiflory, juft as the exiftence of the States-general of France (who once were- fharers with the kings of that country in the exercife of the legiflative authority over it,) is now known only to the, lawyers and other learned men who inquire- jinto the hiftory of that king-
rfj twi&ldo I 'iiloDrtifiq r.I .it 1o ,
~ " ' • In r-
• T T A T A 'TV T
,:. Vw
This is indeed a very ferrous danger arifing from the legiflative and taxative power afcribed to the Crown by Lord Mansfield, and which I was not at firft aware of, though now, that you point it out to me, Tfee it very plainly. And it ought, I fhould think, to have alarm'd all the lovers of liberty in Great-Britain.
. - rr i r
Pray, have not they exprened fome appre- henfions upon this fubjecl ? .more efpecially fince the -decifion of the cafe of Campbell and Hall, in which Lord Mansfield fo fcr- mally delivered his opinion in favour of this dangerous power of the Crown ?
ENG:
ENGLISHMAN.
Some few I do not hear that they have, in general, expreffed any apprehenfions of this kind; ^ome individuals among them appear
dangers that to have had a juft fcnfe of this danger, and
may arife to , .. , . . _ . .
them from have not failed to admoniih their country-
men of it. In particular I obferve that the author of a pamphlet intitled, " Confidera- tiom on the impofition of four and a half per cent, collected in Grenada, &JV." which was publifhed at London in the year 1774, while the aforefaid caufe of Campbell and Hall was ftill depending, exprefies himfelf in a very juft and lively manner upon this An extraa fubjedt. His words are as follows. " I (hall
from a pam- r i
phletpubiim- leave it to abler pens to confute the pre-
jeftTnAeyc^ " tenflon now fet UP of his Majefty's having •774- " a right to levy taxes in a conquered country
" by virtue of his prerogative royal. I always " have been taught to think, that, when the <c Britifh arms conquered any country, the " common law of the land always was fup- " pofed to accompany them. - If it does " not, I am fure our conquefts mud be fc fatal indeed, and, when we think we are
" vanquifhing
[ 25 ]
ce vanquiming our enemies, we are only " forging fetters for ourfelves and our pofte-
<e rity. If the infatuated inhabitants of
" Great-Britain {hall acquiefce in this claim " of power, and fuffer their fellow-fubj eels " and countrymen in the colonies to be thus " arbitrarily taxed at the will of the king, " they will too late find, how little able they " will be to defend their own liberties, if " they mould hereafter be invaded. The " great fecurity we at prefent have, is the " right of being taxed only by our repre- " fentatives. But, if once it is in his Ma- " jefty's power to raife taxes on the Britim •l dominions abroad, by virtue of his pre- <{ rogative royal, that right will be rendered " very precarious. Four and an half per cent. " on the produce of Bengal alone, would <£ amount to a fufficient fum, without grant " of parliament, to pay and maintain armies, " by whofe affiftance, if any future king " Jhould think ft, neither the reprefentatives " nor the people would have any thing left " to grant." To the truth of thefe fenti- ments, I muft confefs, I moft cordially iub- fcribe.
VOL. II. E FRENCH-
FRENCHMAN.
Expediency of paffing an aft of parliament for fettling the legiflative power over conquered countries in the king and parliament conjointly.
And fo do I. And fo ought every Britifh fubjedl to do. And indeed I mould think it natural for the parliament of Great-Britain itfelf to take the matter up before it is too late, and to pafs a bill, either to declare the law upon this fubjedl to be directly contrary to what Lord Mansfield has reprefented it, if they think that learned lord's opinion to be erroneous, or, if they think the law, as it now flandsj to be agreeable to his opinion, to change it for the future, and to veft the right of impofing taxes on, and making laws for, the inhabitants of all countries that mall be hereafter conquered by, or ceded to, the Crown of Great-Britain, in the king and parliament conjointly.
ENGLISHMAN.
I heartily wim that fuch an act of par liament were to pafs, though, by all the
There is but little reaion to expert that
fuch an aft of accounts I have heard of the prefent ftate of
parliament -11-
will be patted England, I have little expectation that any
* i"* i j
fuch thing will be fo much as attempted. So low is the fpirit of liberty at prefent
amongft
t 27 ]
amongft the English nobility and upper gentry ! and fo much are they funk in plea- fure and diffipation of the moil wild and extravagant kind, fuch as gaming to a degree that was not heard of twenty years ago ; by which it happens, not only that many of them, in the courfe of a few years, run out the mod ample fortunes, and bring themfelves into circumftances of diftrefs that render them dependant on the crown for a fupport, but that they lofe the very tafte for liberty, and that habit of ferious reflection upon import ant fubjeds, which is neceffary to make them rightly underftand, and duly eftimate, the advantages of a free government ! At leaft this is the account which has been tranfmitted of them to us, inhabitants of North-Ame rica 3 and it has greatly contributed to indif- pofe the greater part of us againfl any clofe connection with, and, {till more, againft a fubjeclion to, a parliament compofed of fuch members.
But, if the prefent temper of the people
of Great-Britain mould take a turn, (as
fometimes happens moft unaccountably,) and
mould become again favourable to publick
E 2 liberty,
The love of liberty is lefs ftrongamongft the Englifh than it ufed to be.
This ftance has made rhe A- mericans un- \villing to be connefted with the Bri- tifh parlia ment.
There is an other point of importance relating to conquered countries, which ought likewife to be fettled by aft of parliament in a manner that may be confident with publick liberty.
[ 28 ]
liberty, and an act of parliament of the kind you have mentioned, for vefting the legifla- tive authority over conquered countries in the king and parliament conjointly, mould be then propofed, I mould wim that another point, of almoft as much confequence to publick liberty as this legiflative power, mould be fettled at the fame time in fuch a manner as would be compatible with the continuance of that invaluable bleffing.
FRENCHMAN.
Pray, what may that other point be ? For I may truly fay that, (though I was born in Canada and under the dominion of an ab- folute monarch,) I have as great a relifh and value for civil liberty as any of you, natives of Great-Britain or the antient Britifh colonies in America, though I may not be fo well acquainted with the proper means of acquir ing or preferving it. And the fame may be faid of a great many other Canadians. The eafe and freedom we have enjoyed under the Engiim government for thele fifteen years paft, till the fatal ift of May laft, when the new act relating to the government of tiiis
province
[ 29 1 .;.'.;.
province took place, has given us fuch an agreeable tafle of the pleafures of Engliih liberty as will not foon be obliterated from our memories, though we mould now be again reduced to our former ftate of fervitude. And our former, and, (as we have reafon now to apprehend,) our future, experience of this latter unfortunate fituation, will probably only heighten our relifh of the happier con dition we once enjoyed under the compleat protection of the Englifh laws and confti- tution. I therefore beg you would inform me, what that other point is, which you conlider as being of nearly the fame im portance to the prefervation of publick liberty in Great-Britain as the vefting the legiflative power over the inhabitants of conquered and ceded countries in the king and parliament conjointly.
ENGLISHMAN.
That other point is the right which the king JJ^t PJJ1^ is of Great-Britain is bv many people fuppofed to the kins t(>
fuch publick have revenues a;id
taxes in conquered countries as are legally exiliing in them at the time ot tht, conqueft.
: : .•••../ t 3« 1
have (as the law now (lands) to colled: from the inhabitants of a conquered and ceded country all the publick taxes which are already legally eftablifhed in fuch country at the time of the conqueft, and to difpofe of them, when collected, in whatever manner he fhall think fit : which, you cannot but obferve, is quite a diftincl right from that of impofing new taxes on the inhabitants of fuch countries. Two opinions This prerogative is not indeed univerfally al- are entertain- lowed to belong to the crown in the extent I
cd upon this ° .
fubjeft, have mentioned -, there being lome gentlemen
of great judgement and extenfive knowledge in the laws and hiftory of England who are of opinion that the right of difpofing of the re venues of fuch conquered countries, when collected, does not belong to the king alone, but to the king and parliament conjointly, though they allow that the right of colle&ing them belongs to the king alone. But other perfons, (and, I am inclined to think, they are more in number than the former,) are of opinion that the king may legally do both thefe things, laying it down as a general maxim in the Englifh government, ^ That
the
[ 3' 1
the king (though he cannot levy money upon his fubjects without confent of parlia ment,) may difpofe of all publick money already levied, and of the continual produce of all taxes already legally exifting, in any manner that he mall think proper ; except where fuch money mail have been appro priated, by act of parliament, to certain fpe- cificd publick ufes, or referved by the fame authority for the future difpofidon of parlia ment."*
Which of thefe two opinions deferves to be confidered as the true one, is more than I will pretend to determine. But, as I juft now obferved, the latter, (which gives the king the right of difpofing of the publick revenues of conquered and ceded countries, as well as that of collecting them,) feems to be the moft generally adopted. Now, if this latter
opinion
* According to both thefe opinions the king might legally collect the poll-tax in the ifland of Grenada which was paid in the time of the French government. And accordingly I do not find that any action has been brought againft the collectors of the faid poll-tax, as having collected it illegally.
The right, a- fcribed to the crown by the latter of the two foregoing opinions, (though it may legally belong to the crownj may, in fome cafes, be very dan gerous to the liberties of Great Britain.
Cafe of the conqueft of certain pro- YincesofEafl- India.
opinion be true, it is certain that this right of the crown to collect and difpofe of the publick revenues of conquered countries may become extremely dangerous to the liberty of the inhabitants of Great-Britain ; as will eafily appear by fuppofing a cafe in which an ample annual revenue mould accrue by vir tue of it to the crown. The wealth of the large provinces of Indoftan, and their weak, unwarlike, and difunited, ftate will enable us to imagine iuch a cafe without tranfgrefs- ing the bounds of probability.
We have feen that the rich provinces of Bengal, Bahar, and Orixa, in that great peninfula, have already, in effect, been re duced to a ftate of obedience to the Eaft- India company, though they continue, no minally, to be governed by one of their own natives, who is permitted to call himfelf their nabob, or fovereign. The publick revenue collected in thefe three provinces is generally allowed to be three millions, fix hundred thoufand pounds, fterling. This revenue was collected there in the time of the in-
dependant
[ 33 1
dependant nabobs, or fovereigns, of thofe provinces : and therefore, I prefume, the taxes, or rents, out of which it arifes, were impofed upon the inhabitants of them by what was then confidered as the legal au thority by which thofe provinces were go verned. This revenue has, for thefe eight, or nine, years paft, been received by the Eaft- India company; who have been in verted with the office of Dewan> or publick treafurer, of thofe provinces : and they allow a fmall portion of it (two, or three, hundred thoufand pounds a year,) to the nominal, or dependant, Nabob, whom they have per mitted, or, rather, appointed, to govern thofe provinces under their protection ; and they employ another part of it in the mainten ance of their own armies, and forts, and other eftablimments, civil and military, in that country ; and then they divide the remainder of it (over and above what is neceffary for thefe purpofes,) amongft them- felves, that is, amongft the feveral proprietors of Baft-India ftock. Now let us fuppoie that another fuch conqueft mould be made in that VOL, II. F country
The Crown
might, pro bably, derive
conqueft, (without im-
poling any
new taxes,)
a clear reve-
of two fter-
nue
country by the crown inftead of the Eaft- India Company j as for example, a con- queft of the province of Arcot ( of which we have lately heard a great deal,) or of the province of Decan : and that the publick revenues regularly collected in the country fo conquered mould amount to three, or four, millions of pounds fterling per annum. Of t^js iar~e revenue it is probable that, with good management, one or two millions might be fufficient to defray the expences of the cjvii ancj mintary eftablifhments that
J
would be found neceflary for the mainten-
_ . . . , .
ance or the kings authority and the ad- miniftration of government in the faid coun- try j and confequently that two millions of pounds fterling might be remitted every year to England, to be difpofed of as the king mould pleafe. There is nothing in this fuppofition that is at all improbable j nor would the making fuch a new conqueft, and the acquifition of fuch a new revenue, by the Crown be at all inconfiftent with the rights of the Eaft-India Company, or their enjoy ment of the acquifitions they have already made of the provinces of Bengal, Bahar, and
Orixa.
[ 35 ]
Orixa. Now, with fuch an annual increafe of the royal revenue, the Crown might either govern the Britifh nation without the ?lghtr afife
from fuch an
affiftance of parliament, ( as king Charles the increafe of the I ft did during the fpace of eleven years, till crown, the people had almoft forgot what a par liament was j) or, (which would be a milder and fafer way of proceeding,) it might fo influ ence the elections of members of the Houfe of Commons as to caufe a great majority of them to be chofen out of fuch perfons as the minifters of ftate mould have recommended for that purpofe ; or, if thofe members had been chofen freely, it might influence them, when chofen, to pafs fuch bills, and give their fanclion to fuch meafures, (whatever their tendency might be,) as the Crown fhould think fit to adopt. In either of thefe three ways it is evident the freedom and excellence of the Britim conftitution would be greatly impaired, and, in the firft way, totally extinguimed. You now fee the dan ger that may arife from this other prerogative of the Crown, " to difpofe of the revenues " already legally exifting in conquered and " ceded countries in fuch manner as it ihall F 2 " think
«{ think fit," which is much more generally allowed to belong to the Crown than the former prerogative of impofing laws and taxes on the inhabitants of fuch countries.
FRENCHMAN.
'You have made it very plain to me that this prerogative may become exceeding dan gerous to Great- Britain j and therefore I join with you moft heartily in wiming it were put under fome regulation, or reftraint, that would remove this danger. But, pray, in what manner would you propofe to regulate Difficulty of this dangerous prerogative ? For I do not
regulating °
this yreroga- think it would be eafy fo to regulate it as
tive of the ... , j ,
intirely to remove the danger you have been defcribing.
ENGLISHMAN.
I agree with you that it cannot eafily be regulated fo as to avoid thofe dangerous coniequences we have been fpeaking of. Nay more, I believe it cannot pombly be fo regulated. And therefore (as we now are fpeculating upon this fubject, and inquir ing*
[ 37 ]
ing, not what is mod likely to happen, but what is beft,) I do not wifh it to be regu lated, but to be wholly given up by the crown and vefted, by aft of parliament, in the kine liihins it: bx
' . . ' ,5 ad of parlia-
and parliament conjointly, <e fo that, for the ment.
" future, the publick revenues of all fuch " countries as mall be conquered by the Bri- " tifti arms and ceded to the crown of Great- " Britain, which mall be found to be legally " exifting in the faid countries at the time of " the conqueft and ceffion of them, mould be " difpofed of by aft of parliament only;" like the overplus of the taxes granted by parliament in Great-Britain itfelf, above the fums neceflary to defray the expences of the fervices for which they are granted, which overplus, I am allured, is always referved, by fpecial claufes in the acts by which thofe taxes are granted, for the future dilpofal of parliament.
FRENCHMAN.
This would undoubtedly be a moft defire- able method of preventing the dangers we have been fpeaking of. But, as it would fo greatly diminim his Majefty's perfonal emo luments from all future acquifitions of his
crown.
[ 33 ]
crown, it feems hardly reafonable to expeft that he mould confent to it : and without fuch confent, I prefume it cannot be taken.
There is rea- fon to rhink that his pre« fent Majefty would gene- roufly affent to fuch an aft of parliament, if he were re- quelled by his parliament, or advifed by his minifters, to dofo.
This may be inferred from afimilaradof generofity per formed by his Majefty fince the lait peace, with refped to themoneypro- duced by the fale of the French prizes taken before the declara tion of war.
ENGLISHMAN.
It certainly cannot. But there is reafon to think that, if his Majefty were to be follicited by his parliament to give his affent to a bill of this kind, or even if he were to be fbongly adviled by his minifters of ftate to declare to his parliament before-hand his difpoiition to afient to fuch a bill, (which would be a more decent and proper way of conducting the bufmefs than the other,) he would gra- cioufly condefcend to facrifke his own per- fonal interefl to the fafety and fatisfaclion of his people. For he has already vouchfafed to do a fimilar act of noble generofity towards his fubjedls, in giving up to the publick revenue of Great-Britain the fum of feven hundred thoufand pounds flerling, which was the produce of the fales of the French mips which had been taken by the late king's mips of war in the years 1755 and 1756, in the beginning of the hoftilities of the late
war
[ 39 1
war againft France, and before the war had been declared in form, and the ufual act of parliament had been pafTed for vefting the property of the {hips and goods, that mould be taken at fea in the courfe of the war, in the officers and failorsof the veflels by which they fhould be -taken. After fuch. an act of generofity one can hardly doubt ofhisMa- jefty's willingnefs to confent to fuch an act of parliament as I have mentioned, if he were to be advifed to fuch a meafure by his par liament or by the minifters of flate whom he honours with his confidence.
FRENCHMAN.
The inftance you have mentioned of his Majefty's generofity to his fubjeds in giving up to them the faid fum of feven hundred thoufand pounds fterling, is indeed a very noble one, and warrants you in the opinion you entertain that he would not refufe his royal affent to an act of parliament of the kind you have fuggefted, if it were properly recommended to him. The probability there fore of fuch an ait's being pafled will depend upon the difpofition of the parliament to
requeft,
It would be beneficial to the nation to purchafe his Majelty'scon- ient to fuch a meafure by a gran: of a handfomefum of money.
t 40 ]
requeft, or of his Majefty's minifters of (late, to advife, his Majefty to agree to fuch a mea- fure. How far they are likely to follicit or recon.mend fuch a meafure, I know not : but to me it appears to be a matter of fo much importance that I fhould think it a good bargain for the Britifh nation to pur- chafe his Majefty's refignation of this prero gative at the expence of half a million, or even a million, of pounds fterling, which, (as the emoluments which his Majefty might derive from this prerogative are diftant and uncertain,) might, I mould imagine, be thought no contemptible compenfation for the lofs of it. And thus both the king and his fubjects would reap benefit from iuch a meafure.
ENGLISHMAN.
I have no objection to purchafing fo great a fecurity for the national liberties for what the lawyers call a valuable confederation ; more efpecially as it would give the refigna tion of this prerogative on the part of the Crown the greater appearance of freedom and perfect approbation, and would thereby
contribute
t 4' ]
contribute to make it more binding and per manent. Nor do I think the greater of the fums you have mentioned too great a price
for fo important an advantage. 'But now,
if you pleafe, we will go back to the fubject we were before coniidering, when this in*- quiry concerning the danger arifing from the king's right to the legally-exifting revenues of conquered countries, called us away ; that is, to the right of making new laws for, and impofmg new taxes on, the inhabi tants of fuch countries 5 which right Lord Mansfield has declared to be vefted, by the Englifh conftitution, in the king alone; with out the concurrence of his parliament.
FRENCHMAN.
You were feying, if I remember right, that you had known fome private lawyers who, (before the deciiion of the cafe of Campbell and Hall,) had declared it to be their opinion that, by the law of England, the king has. fuch a legiflative power over conquered and ceded countries j and that, when prefled to explain the grounds of their opinion, thefe lawyers had (aid that they
VOL. II. G conceived
t 42 ]
conceived fuch a power to be implied in, or to follow from, the king's right of making peace and war, and the abiolute power which he acquires by conqueft over the lives and properties of the conquered people, when no capitulation has been granted to them, either by the king himfelf or the generals who ad by his authority, whereby the faid power has been diminimed : which reasoning Teemed to be much the fame with that which is briefly and obfcurely contained in thofe words of Lord Mansfield which you had cited from the judgement he had delivered in the court of King's-Bench upon the aforefaid cafe of Campbell and Hall. Now I mould be glad to hear, in as full a manner as you are able to ftate it, the whole argument of thefe lawyers, fuch as it was, and the anfwers that you thought might be given to it.
ENGLISHMAN.
An argument The principal argument, alledged by thofe
ufed byfome *. J => . '
private Eng- lawyers in lupport or this iuppoied preroga- '
tiveof the Crown, may be ftated in the fol- king's abfo- lowing manner. " The kin?, fay thev, with-
luteiegiflative b» / />
authority over c out the parliament, is, by the Englim
" conftitution,
I 43 1
" confutation, inverted with the power of " making peace and war, and intitled to the " abfojute property of al] the captures made " in war, unleis he has previouily diverted " himfelf of his right to fuch property by ce fome voluntary a6t of his own, as, for *' example, by giving his royal alien t to " fome act of parliament made in favour of <c the officers and foidicrs, or lailcrs, by " whom the faid captures mall be made. < " He is mafter of the lives of all prifoners " of war who are taken without a capitu-
" lation : He is ablblute marter of all
" the (hips, and money, and merchandize, " or other plunder, his troops and mips get <c poffeflion of, and may difpofe of them in " what manner he thinks fit. And, if he " thus becomes abfoiute mafter of all the " moveable property he can leize, (which " is clear beyond a doubt,) then alfo, by <£ parity of reafon, fay thefe lawyers, he <c muft become marter like wife of all the tl immoveable property he can take from " his enemies, that is, of all the lands and " houfes of the countries his armies con- " quer 3 fo that, if the country furre^dered G 2 "at
' r 44 3 .
*c at difcretion and without a capitulation, cc he might, by right of conqueft, lawfully Ct difpoflefs every freeholder in the country " of his land, and give it axvay to other *e perfons, or fell it to the higheft bidder, ee and apply the money thence anting to <c whatever ufes he thought fit. Ht is there- " fore, fay they, abfolute monarch of the " country, fince the lives and fortunes of " the inhabitants are thus intirely at his dif- ' " pofal."
This is the ftrongeft. way I know of ftating this argument of theie lawyers ; in anfwer to which we may make the following remarks.
An anfwer to All the premifles in this argument I allow
the faid argu- .
ment. to be true ; but do not think that the con-
clufion, which theie gentlemen would draw from them, is juft, namely, that the king is, therefore, the ablolute monarch of fuch a country, or has, in his fingle capacity, the right of making laws for it. The power over the lives of the conquered people is certainly only a temporary power. If the king does not caufe them to be put to death
immediately
t 45 1
immediately after they are taken, or, at leafl, during the remaining part of the war, he lofes his right of doing it. For, when a peace is marie, and the conquered country is ceded and transferred to the conqueror by the" tormer fovereign, and the old, or conquered, inhabitants are fuffered to con tinue in the country, and admitted to the rank of iubjecls, and to take the oath of allegiance, it feems clear that they have a right to be protected in their perfons and < future property, acquired after the peace, in the fame manner as the other fubjedts of the conqueror : That is, in other words, after the peace is made, the grand preliminary propofition upon which the above-mentioned lawyers grounded their argument, to wit, " that the king is the abfolute mafter of the *' lives and fortunes of the conquered people," is no longer true ; and confequently the con- clufion they draw from it, " that therefore "the king was the abfolute monarch and ?' legiflator of the country," will not follow from it.
The
Of the original
foundations of fie rights of war.
The probable foundation, or realon, of the king's prero gative of con- cudting the operations of war by his iagle autho rity.
r 46
The faimood ef this preliminary proptv fition, when extended beyond the conclufion of the peace and the final ceflion of the country, will be further evident by confider- ing the original foundations of the rights of war. Now thefe rights of war over the perfons and property of a conquered people, are evidently only temporary rights, founded on neceffity, in order to enable the conque- rour to preferve the advantages he has gained in the war, and compel the enemy to accept of a reafonable peace : and, therefore, they can fubfift no longer than the neceflity that gives rife to them, that is, no longer than
the war continues. And, as the rights of
war themfelves are founded on necefiuy, fo the power, or prerogative ot exercifing thofe rights, that is, the prerogative of managing the war, is vefted, by the laws of England, in the king alone for almoft the fame reafon, namely, on account of the high exptdiency, amounting to a kind of neceflity, of entruft- ing this matter to the direction of one man, arifing from the extreme difficulty of carry ing on the operations of the war, and of making the fudden and temporary regulations
fit
t 47 .1
fit. to be obferved in conquered countries immediately upon their firft fubmiCTion, by a numerous body of men, and who are not at all times affembled together, fuch as the parliament of Great-Britain. This I coiv- ceive to be the reafon why the power of making thefe regulations is veiled in the king alone immediately upon the conqueft of a country and during the remainder of the war j during all which time the inhabitants of fuch a country, though no longer in arms againft their conquerour, mufl flill be fup- pofed to be fecretly his enemies, and to be inclined to take the firft opportunity of throwing off his authority and returning to their former mailers, and are, in truth, nei*- ther more nor lefs than priloners of war who are permitted to be at large upon their parole of honour. While this violent ftate of things continues, the king continues to have the fole power of governing the conquered coun* try and its inhabitants, and confetraently that of making temporary laws for them accord ing to his discretion, as being a necelTary part of fuch government. But, when the peace is made, and the country is ceded for
ever
[ 48 ]
This reafon ever to the croxvn of Great-Britain by the
CCtlfcS to CJ^lft
when the former fovereign of it, and the old inhabi-
cfuded!8 °and tants of the country are permitted to continue theconquered in it as fubiects to the conquering fovereign,
country has J Jj
beencededby and to take the oath of allegiance to him, verei™ *o the {c*^IBr wim or without a reftoration of their Crown of jan(]s to them,) there feems to me to be an
Great-En- '
tain. end of the exercife of the king's prerogative
of making war in fuch a country, and of all the incidental powers belonging to fuch pre rogative. From that moment the laws of peace take place, and, as I mould conceive, the legiflative authority with refpect to fuch new part of the Britifh dominions as well as with refpecl to the former parts of them, muft revert to its proper channel, in which it runs in times of tranquillity, that is, to the king and the two houfes of parliament con jointly. And, if it does not then fo revert, it miaft be owing to fome other caufe, or reafon, than the king's having the fole pre rogative of making war and peace, becaufe at this time both the war and the peace are fuppofed to be compleatly terminated.
FRENCH-
[ 49 1
FRENCHMAN.
I am thoroughly convinced, or rather confirmed in my former opinion, that this legiflative power of the Crown over con quered and ceded countries can never be de rived from the royal prerogative of making war and peace, whatever other foundation it may have in the laws or conftitution of Great- Britain. But was this argument, (derived from the prerogative of making war and peace,) the only argument by which the lawyers you converted with, endeavoured to maintain their opinion of the legiflative au thority of the Crown over conquered coun tries ? Did they alledge no circumftance in fupport of it, that continued to have an exift- ence after the conclulion of the peace and the final ceffion of the conquered territory, when the legiflative power in queftion was fuppofed by them ftill to continue in the Crown ?
Of other argu ments alledg- ed by the a- forefaid Eng- lifh lawyers in fupport of the king's legifla tive power fl yer conquered countries.
VOL. II.
ENG-
ENGLISHMAN.
An argument for this pur- pofe derived from ticking's becoming owner of" all the lands of the countries heconqters.
They were very indiftind: in their mariner of ftating the grounds of their opinion. They partly afierted this legiflative power to belong to the Crown as a fort of known propofition, cr maxim of law, and partly endeavoured to prove it ; and it was not very eafy to diftin- guim their aflertions from their proofs, or to difcern in what their proofs confifted ; which muft often he the cafe when the proofs alledged in fupport of a propofition are in themfelves weak and inconclufive. Their firft and bed argument (bad as we think it,) was that which I have already ftated to you, which is grounded upon the king's prerogative of making war and peace. But they did alfo feem to found another argument upon the king's becoming owner of all the lands of the country he had con quered, and having a power to grant them either to the old inhabitants, who had pof- feflcd them under the former government, or to any other perfons, and upon fuch terms and conditions as he fhould think proper j
from
t s« ]
from which they feem.ed.to infer that lie had like-vvile^a right to make what laws for them, and :mpofe what taxes upon them, he mould think fit. And fomething of this kind, you may obferve, feems to he hinted at in the words of Lord Mansfield above-mentioned, Lnr<* Mans.
-V'« ' "j»0 '"JW rr" ' f \ ' field's- words
where he fays, Tnat the lands of the to this effect. " country are the king's, and he may grant " them to wh^m he pleafes j and, if he plants " a colony upon them, the new fettlerb will " hold the mares of the faid lands which' " m'airhave been allotted to them, fubjecT " to the prerogative of the conqueror." Thefe words feerri to me to mean, that the king's iegiflative '^ 'authority over theie new fettlers is derived from the circumftance of his having granted them their lands; though ftill the laft words, Jubjcft to the 'prerogative of the conqueror •, ieem very obfcure, fince the whole matter in queftion is to know what is the prerogative of the conqueror. However, fome kind of right of legiflation in the Crown feems intended by thefe words to be derived from the king's having been the original owner of the lands immediately upon the H 2 conqueft,
.
conqueft, and having granted them to their prefent pofTeflors upon fuch conditions as he thought fit.
FRENCHMAN.
A rem'ark on This feems to mp a ftrange way of areu-
the foregoing . .
ing j to found a ri^ht of irnpofing laws and taxes on the inhabitants of a given diftricl, on the mere ownership of the land^, or ra ther on the circumftance of having once owned them and afterwards granted them away. It is true indeed that the owner of any lands, (whether he be a king or a private perfon,) may annex what conditions he pleafes to the grants that he makes of any parcels of them, fo far as luch conditions _ are not contrary to the general laws of the country to which the lands belong ; he may grant them to be holden only at his will and pleafure, (though fuch a flight tranfmiffion of them would hardly deferve to be called a grant -J cr he may grant them for a term of years, or for the life of the grantee, or for feveral lives, or to the grantee and his heirs for ever. And hetmay require either a fmall, or a very heavy, annual rent to be
paid
[ 53 ]
paid for them, as he and hi? grantees fhall agree. But, when once the g^'-m is made, his power, as owner of the land, feems to me to1 be at an en^, and he will h.ive no right to impoie any; r.e'w rents • or conditions on them ever after, provided titev pay the rents and perform the conditions that have been originally agreed on There is nothing therefore in this circumfbnce of the Ir.ng's being owner of all the lands of a conquered country, immediately after the conqueft ot it, that can give him the lead madou of a right to impofe laws or taxes on the inhabitants of it, whatever other grounds there may be for fuch a power. Not to mention that it hardly ever happens, in modern time.0, that the con queror of any country belonging to one of the civilized dates of Europe becomes the owner of all the lands of it even for an in- flant, it being almoft the nonftant pradice, in fuch conquefts, to grant to the inhabitants of the conquered country the quiet poffeffion of their lands immediately upon their fubmiffion to the conqueror. And this, we have icen in par ticular, was done in the cafe of the ifland of Grenada, where all the inhabitants who held
lands
v r 54 1] . •
lands in it, were continued in the enjoyment of them by the articles of the capitulation and the peace : fo that no fuch pretence to a legiflative power derived from the original ownermip of the land, (weak as it is,) can be applied to that ifland. But indeed this argument for the legiflative power of the Crown over conquered countries, which is grounded on the original ownerihip of the lands of them, is too weak to need a con futation.
ENGLISHMAN.
V '•'•>'• 1 1O ..3V'-
I think of it in the fame manner as you do, and was therefore half-inclined to pafs it over and fay nothing to you about it, if you had not preffed me fo earneftly to in form you of every other argument that had been alledged by the lawyers I had con- verfed with in fupport of this legiflative power of the Crown. However, fmce we have touched upon it, I will mention an additional obfervation or two that have oc curred to me concerning it, over and above the remarks which you have made on it, to which I intirely fubfcribe.
The
C 55 ]
The idea of deriving the legiflative power of the Crown over a conquered country from its original owner/hip of the lands of the country immediately after the conqueft, (though that effect of conqueft does not, as you rightly obferved, happen once in a hundred years in the wars between civilized nations, but is prevented by capitulations j) feems to have arifen from a want of attention to the true nature of legiflative power. The legiflative power over a civil fociety is not a fudden and 'temporary power, which is to be exercifed once for all, and then to ceafe and be extinguifhed, but is an authority con- ftantly in being, and incapable of any re- ftriclion, becaufe it is founded on the power of the whole fociety, who are fuppofed to have delegated to a particular man, or body of men, the power, originally inherent in themfelves, of making new laws to bind the whole fociety, whenever they fliall think it neceflary. This is a very different thing from the power of an owner of lands with refpect to the perfons to whom he means to grant them, arifing from that ownership, even fuppoling that it were lawful
for
Another re- mark to the fame effed.
Of the nature and founda tion of legifla tive power o- ver a civil fo ciety.
Difference between this power and the power of an owner of lands over the per- ions ti he grants
. [ 56 1
for fuch owner to require of his grantees, as a neceffary condition of their enjoying the lands he was about to grant them, that they fhould be governed by fuch a particular fyflem of laws which he had appointed for them. For by fuch a condition, if it were lawful for the original owner of lands to annex fuch a condition to his grants, (which it is not in moft cafes,) he would only be come a temporary legiflator, with a power to introduce that original fyftem of laws. But he could not afterwards make any alte ration in thofe laws, or any new law to bind his grantees, or impofe any new tax upon them, over and above the rents origi nally referved in his grants, by virtue of fuch former ownership ; becaufe every fuch new law and tax would be a breach of his own grants, which are the only foundation of his authority. This power, therefore, of impofing the original fyflem of laws by which his grantees were to be governed, as a condition of the tenure of their lands, (if fuch a condition could be legally required of them,) would be only a temporary legiila- tive power, which might be executed once
for
[ 57 1
for all, at the time of making the Brants :
o e> *
but then muft ceafe and be extinct for ever;
i • i. --^ i .1" i • '!H>''"VI
which cannot happen to the true and genuine ;rf; acij
legiflative authority over a fociety, which is, as I before obferved, a permanent authority, and incapable of diffolution, fo long'as the fociety, which is the object of it, •• [continues to be a civil fociety. -Now it Is by confou-nd- - ing the temporary power of a granter of lands, arifing from his power of prefcrihing the conditions on which he will make grants 'of them, with the permanent power of a regu lar :and genuine legiflator, that, as I con jecture, the lawyers I converfed with were induced to ground, on the circumftance of the king's original ownership .of the lands of conquered countries, immediately .after the conquefl of them, their opinion that he was the conflant and regular legiflator of them. nfc
FRENCHMAN.-
That feems to be the rnoft natural -. of accounting for their manner of reafoning 5 which, after all, appears to me to be prizingly weak and inconclufive. For w~lio could: ever have thought of deriving" a right
VOL, II. I of
Abfurd confe- quences that would refult from a fuppo- fuion that the ownerfhip of lands could give the own er of them a legiflative au thority over the perfons who inhabit them.
t 58 ]
of making laws from the circumftance of being a great land-owner ? At this rate every rich man in England, who is pofTeiTed of a large trad: of land which is occupied by his tenants, might not only introduce a new fyftem of laws among them by requiring them to promife obedience to fuch laws as a condition of the leafes he was willing to make them of a part of it, but might alfo, after the leafes were made to them, change thofe laws for another fyftem, and double the rents he had referved in their leafes by impofmg a tax upon them. Nothing, furely, can be more extravagant than fuch an opinion.
ENGLISHMAN.
The extravagance of it is fo ftriking in the cafe, which you fuppo-fe, of a private perfon, that I believe no man could, for an inftant, be perfuaded to entertain fuch an opinion. And yet, if the mere ownerfhip of the land could create a legiilative authority over the perfons who inhabit it, i| mull be conferTed that fuch a conclufion might juftly be inferred from it. But in the cafe of a king people are apt to think the reasoning iefs abfurd.
The
r 59 i ' .
The fplendour of majefty dazzles their ima gination and overpowers their understanding. And yet, I prefume, there are few poiitions in the law of England more certain than this, " That, if any county in England, as, for inftance, Yorkfhire, (which is the largefl county in the kingdom) was, by purchafes, and efcheats and .forfeitures for high^-treafon, and other lawful methods, to become the fole property of the king, his Majefty would not thereby acquire one jot more legiflative power over the inhabitants of fuch country, in confequence of fuch fole and full poiTeffion of it, than he has at prefent ; but the fame laws would take place in it after fuch transfer of the property of the lands to the Crown as did before, and they would be liable to be changed, or altered, only by the fame legi£ lature as before, that is, by the king and parliament of Great-Britain conjointly, but not by the king alone. Nor would the king acquire, by fuch a property in the whole county, even the imperfect and temporary legiflative power above-mentioned, or the right of impofing a new fyftem of laws upon the inhabitants of it once for all, as a con- I 2 dition
The king, by becoming owner or all the lands of any particular countyinEng- land, would not thereby acquire any power of making laws by his fingle authority lor the inhabi tants of it.
[ 60 ]
dition annexed to the grants of land he might be willing to make them in it ; but he mull either not make -any grants of land in it at all, or he mutt make them upon the ufual and known conditions upon which, by the .tews already in force, lands may be granted in England. And every condition, annexed to a grant of land, that mould not be agreeable to thole laws.,: would either make ",{£* the whole grant void, or^lat, leaft, be void itfelf.
Thus, tor example, if the king were to grant a pavcel of -land in fuch .county to a man and his heirs for ever, with a condition, that neither he nor any of his heirs mould ever fell it, or give it away from the next right heir, and that,, if he £hould attempt. to make any fuch. alienation of it,. the grant mould -.become void, and the land mould revert to the right heir of the • grantor immediately upon the taking of the firft necelTary ftep towards fuch an alienation, and before the alienation , is compleat ; that condition , of the grant would be void, be.caufc it would tend to create a per petual. eft ate indefeafibly vefted in the fame family, or line of defc^nt, which is a thing the laws do not allow. In. the fame rpanneiYif tlxe ocr: king
[ 6i J
king were to grant a parcel of land in the
faid county, (of which he had by divers
accidents become the fole proprietor,) and to.
annex to his grant any other condition that
was contrary to the general laws, of England/
as, for inftance, a condition that the youngeft
fon {hould inherit the land inftead of the
eldeft, or the eldeft daughter inftead of the; *
eldeft fon, fuch a condition would be a void
condition. And ftill more certain it is, that,
if the king were to grant fuch whole county,
(of which he was become the fole proprietor)
in feveral parcels, to a fet of new grantees,
with a condition that they fhould be governed
by the laws of Hanover, or ,the cuftoni -.of
Paris, inftead ;t)f the laws of England, the
faid condition would be void, and the grantees
would be bound taobey the laws of England. •
•^uV''Sf;7 n
-: This reftr.aint upon the power. of the Crown The true
... r • n • • i i • A r T ground of the
witlrrelpea: to granting lands m -the cafe r reftraint un- have here fuppofed, does not, indeed, arife ^erwhichthe
Crown would
from any right, or privilege, of the grantees- He in fuch a themfelvcs ; who, naturally, ought to be bound by every condition to which they have freely, confented : but it arhes collaterally
from
from the intereft that the other fubje&s ef the Crown have, that no unreafonable, or inconvenient, laws, or cuftoms, mould take place in any part of the dominions that are iiibject to the fame fovereign with them- felves, and which by means of the neceflary connection between the feveral parts of one and the fame kingdom, or empire, might ultimately be prejudicial to them felves.
The Crown, therefore, would not, in the cafe I have fuppofed, have even the tempo rary power of legiflation above-mentioned, or the right of requiring the new grantees of the lands of the county of which it had acquired the fole property, to obferve any particular fyltem of laws different from the laws of England, as a condition of the tenure of their lands : much lefs would it thereby become poiTeiTed of the conftant, or perma nent, right of making laws and impoling taxes on its inhabitants, which alone de- ferves the name of the hgijlati'ue authority, and which is the authority afcribed to the Crown in the ifland of Grenada by Lord Mansfield, before the ifTuing of the procla mation
[ 63 ]
mation of October, 1763, by which the Crown relinquished it.
But we have dwelt too long on this whim- fical argument for deriving the king's legifla- tive authority over conquered countries from an original ownerfhip of the lands of them, fince, for the mod part, no fuch ownerfhip ever exifts even for an hour, but the inhabi tants are permitted to retain their lands by the terms of the capitulations, as was the cafe with Grenada in the late war, and with all the other iflands then taken from the French king in the Weft-Indies.
FRENCHMAN.
I think indeed we have had enough of this argument. But, if thefe are all the ar guments that are to be derived from reafbn and general principles in fupport of the king's legiflative authority over Conquered countries, I muft needs think it requires other grounds than reafon and general prin ciples to fupport it. But, perhaps, there may be precedents, or other arguments from au thority, to be alledged in favour of it : and,
if
a legiflative power in the Crown.
It muft farther be obferved that, in almo.2: all the con- quefts ma.de by theCrowa of Great- Bri tain in modem times, the king is pre cluded from becoming owner of all the lands of the conquered countries by previous capi-- tulations per mitting the inhabitants to keep their lands.
End of tlif consideration of the argu ments derived from reafoa and general principles ia fupport of tW king's !egifla> tive authority Over conquer ed countries.
Of precedent! and other ar guments from authority ia favour of fuch
rii '^q
3~'« ' I
Of the argu- menrs from hiflory in fa vour of this legiflative power of the Crown,
if I remember right, you, fome time ago, faid that Lord Mansfield, -in delivering the judgement of the Court of King's-Bench in that cafe of Campbell and Hall, mentioned fome fuch arguments. I therefore beg you would ftate them to me, if it is not too much trouble.
.['i TJ; .30r.f ENGLISHMAN.
C - J. ^ '»' J
Lord Mansfield did mention two arguments of- the kind you . mentio.n, , the one derived from the hiftory of the countries conquered by the crown of .England or Great-Britain, the other from the opinions of Englifh judges and other lawyers of eminence occafionally given upon. this "fubject, though without any formal -decilion of the point, by -any court of juftice in the determination of a cauie which turned upon it.
FRENCHMAN:;
"c' V '
Pray, let me hear what wer£ the argu ments from hi dory in favour of this legifla- tive authority of the Crown. t For, if thefe are clear and'pofitive raid uniform, I mould think they muft have more weight than any
Other,
ENG,
[ 65 ]
t , Vj»t; '.. . .: . ,t
ENGLISHMAN.
They certainly would deferve great regard, if they had the qualities you mention. But, as they are, the greater part of them appear to me to be in titled to very little. The in- ftances mentioned by Lord Mansfield of countries conquered by the crown of Eng land before the Union, and of Great-Britain fince that happy period, were thofe of Ire land, Wales, Berwick upon Tweed, Calais, Gaicony, New- York, Gibraltar and Minorca.
Concerning Ireland his words are as fol- L°rd Man(~-
0 held s aller-
lows. " The alteration of the laws of Ire- tions concern-
land has been much difcufTed by lawyers tive
and writers of great fame. No man ever
Ireland.
faid the change was made by the parliament. No man, unlefs perhaps Mr. Molyneux, ever faid the king could not do it. The fact, in truth, after all the rcfearches that could be made, comes out: clearly to be as laid down by Lord Chief Juftice Vaughan ; namely, That " Ireland received the laws of " England by the charters and command of " king Henry the 2d, king John, Herry VOL. II. K " the
[ 66 ]
" the 3d, &c.; which &c. is added by Lord " Chief Juftice Vaughan in order to take in " Edward the ift and the other fucceflbrs <c of the princes he had named. That the " charter of the I2th year of king John's " reign was by aiTent of parliament in Ire- " land, Lord Chief Juftice Vaughan mews £t clearly to be a miftake. Whenever a par- <c liament was called in Ireland, that change " in their conftitution was without an aft of " parliament in England, and therefore <c mud have been derived from the king."
Remarks on This is all that is faid by Lord Mansfield concerning Ireland ; which at moil proves that, five hundred years ago, the kings of England, upon the conqueft of Ireland, exercifed one fpecies of legidation over it, to wit, that of abolifhing the Iriili laws and introducing the laws of England in their flead. But it does not prove that they be came the permanent and general legislators of Ireland, and made and unmade laws there, and impofed taxes upon the inhabitants, at their pleafure, without the concurrence of either theEnglimor Irim parliament; which
was
was the legiflative power fuppofed by Lord Mansfield, (if I underftand him right,) to belong to the king in the ifland of Grenada, before he had diverted himfelf of it by his proclamation of October, 1763. Now, as to this one fpecies of legiilation, that of in troducing the laws of England into the con quered country, as it no way lerTens the rights and privileges of the Englifh, or con quering, nation, nor tends to give the king new and dangerous powers which may here after be ufed to their prejudice, but rather tends to confirm them in their enjoyment of thofe rights and privileges, by extending them to their new fellow-fubjec'ts, the inha bitants of the newly-conquered country, it may well be prefumed to have the approba tion of the conquering nation, though done without an exprefs concurrence of their par liament. It can therefore be no ground for the exercife of a permanent and general le giflative authority by the Crown alone over the conquered people in other instances ; as, in railing taxes upon them ; eftablifhing a religion amongft them ; compelling them to ferve as foldiers in regular armies otherwife K 2 than
than for the defence of their own country ; altering the mode of adminiftring juftice amongft them, fo as to make it different from that of the Englifh, or conquering, nation, as well as from that which took place before the conquefl of the country; intro ducing, or abrogating, amongft them the cuftom of having flaves ; altering the laws of tenure, or of inheritance; or the. age of majority or difcretion .3 or the privileges of marriage ; or the legitimacy, or illegitimacy, of children in certain cafes ; or the powers of parents over their children ; or the power of entailing eftates, or of freeing them from entails; and fettling all thefe matters in a manner not known to the laws of England; and of making other, the like, changes in the civil condition of the conquered people. All thefe ac"ts appear to me to be adts of legiilation of a very different kind from that of introducing the laws of England into the conquered country. The former are the acts of a real and general legiflator : the latter may reaibnabiy be confidered as an adfc of the executive power, by which the king,, ading as the great executive magistrate of the Eng-
lifli
[ 69 J pp;
3ifh. nation, executes their prefumed intention by extending the operation of thofe laws which have already received the fanction of their approbation. And for this reafon this iniiance of Ireland appears to me to have but little weight with refpect to the purpofe for which it is adduced, that of proving that the king had a right to make laws for, and im- pofe taxes on, the inhabitants of Grenada before the proclamation of October, 1763,
But, befides this objection to the above argument drawn from Ireland, we may ob- ferve that great alterations have happened ^ in the conftitution of the Englifh govern ment iince the days of king John, and, for the moil part, in favour of the liberty of the fubject, and to the diminution of the power of the crown : fo that I can allow but little weight to a precedent, in favour of a doubtful prerogative of the crown, drawn from thofe antient and obfcure times, unlefs- it has been followed by others of the fame kind in more modern times, which are better known and bear more refemblance to the prcfent. Now, if we purfue the hiftory of
Ireland,
[ 7° ]
Ireland, we mail find that^ in after times, the [parliament of England concurred with the king in making laws for the people of Ire land ; of which there ar& the following exam ples in the collection of the.Ehglim Statutes.
• • • A£b pafled In the reign of kins; Henry V. there is a
• T» T7 1 " /V» • ^^ *"* *
pLliameS ' ftatute of the Englifti parliament, which or- conceming dalnSj that ^ jn£hmen, wno have benefices
or orrlces in Ireland, (hall rcfidc upon them,
*• UUjJJj
on jpaih of iofing the profits of them.
" And in the third year of the reign of king
William and queen Mary, juft after the late reduction of Ireland to the obedience of Eng land, (which is a time much. fitter to be ar gued from, on a point rerpecting the prefent confHtutiua of the Englifli government, than the reigns of king Henry II. and king John,) there. is an acl:; of the Englifh parliament re- fpeclirig Ireland that is of great importance. For it fettles the oaths which are to be taken by the members of both houles of parliament in Ireland before they can fit and vote in their refpedive houfes, betides many other matters of great confequence. And in the eleventh
year
[ 7< 1
year of the fame king William's reign there is another aft of the Englim parliament which enacts that the forfeited eftates in Ireland fhall be fubject to the fame quit-rents as they were fubjecl; to on the 1 3th day of February, 1688, and that the faid quit-rents and all other quit- rents which had belonged to the crown of Ireland on the faid i3th day of February, 1688, (hall be for ever after appropriated to the fupport of the government of Ireland, and mail be unalienable ; which, by the bye, is precifely the fame regulation which, we have agreed, would be extremely proper to be made with refpect to the quit-rents of North-America.
In queen Anne's reign there are four acts of the Englim parliament concerning Ireland.
And in the fixth year of the reign of king George I. there is an act of the Englim. par liament to the following purport : " To de- *{ clare that the kingdom of Ireland ought to " be fubordinate unto, and dependent upon, <c the imperial crown of Great- Britain, as " being infeparably united thereto ; and that
" the
t 7'- }
" the king's majefty, with the confent of
" the lords and commons of Great-Britain
<l parliament, hath power to make laws to
" bind the people of Ireland."
Conciufion From thefe inftances it is plain that . the
king an^ parliament of England or Great- Britain, have exercifed a legislative authority over Ireland ever fmce the reign of Henry V. that is, for the fpace of 3 50 years, and confe- quently that the king alone has not been their legiflator during all that time. For, if the kings alone had had that authority, we may prefume they would fometimes have ufed it. And even in the old times between the reigns of king John and king Henry V. it feems to have been the practice of the kings of England, in making ordinances of im portance for the good government of Ire land, to act in conjunction either with the Irim parliament or a very relpectable council in Ireland, which confided not only of the king's ordinary counfellors in that country, but of the prelates and great men thereof, and others of the moft difcreet and refpectable Irim gentlemen who dwelt in the neighbour
hood
[ 73 ]'
hood of the place where fuch council was to meet, and fuch ordinances were to be palTed ; which council was a kind of local, or partial, parliament for that part of the country where it was held. All this is very manifeft from the following mort chapter of a certain ancient ordinance, thought to have been made about the 3 1 ft year of the reign of king Edward III. which is intitled, Qrdinatio facia pro jlatu terra Hibernitf. Item volumus et prcecipimus, quod nojlra et ipfms terra negotia, pr<zfertim majora et ardua, in confiliis, per peritos confi- liarios noflros, ac Pralatos et Magnates, et quojdam de dij'cretioribus et probioribus bomini- bus de partibus coicinis, ubi ipj'a conjilia teneri contigerit, propter hoc evccandos -, in parliq- mentis vero per ipfos Confiliarios nojlros, ac Prce~ latos et Proceres, aliofque de terra pr<zdi5lay front mos cxigit ; [ecundum fjuflitiam, Legem, confuetudinem, et ratknem, traftentur^ dedu-* cantur, et Jideliter, (timore, favor e , odio, ant pretio, poftpofilis,) difcutiantur et ctiam termi- nentur.
In this pafTage we may obferve two things ;-
I ft, that parliaments in Ireland are fpoken of
VOL. II. L as
A remarkable paflage in an old ad of the Englifli parli ament in the icign of kino- Edward III. concerning the legiflation to be exercifed over Ireland.
[ 74 ]
as known and cuftomary afTemblies even iri that ancient time; for that, I prefume, is the meaning of the words, pront mos exigit -, and, fecondly, that even in the council, (which is diftinguimed from the parliament,) there were to be, betides the King's counfel- lors, (who are denoted by the words peritos confiliarios noftros) fome prelates and great men (exprefied by the words Prelates et Magnates) and fome other men of refpectable condition and character, who were to be fummoned from the neighbouring diftrict to the faid councils for the purpofe of making thefe ordi nances j which is expreffed by thefe words, quofdam de difcretioribus et probioribus homni- bus de parti bus vicinis propter hoc evocandos, It can hardly be pretended, when one confi- ders this pafTage, that the king of England was at that time the fole legiflator of Ireland, with a right to make what laws, and impofe what taxes, he thought proper there, as Lord Mansfield faid the King might lawfully do in the ifland of Grenada after the peace in Fe bruary, 1763, and before the proclamation in the October following.
r 75 ]
Whether or no the kingdom of Ireland is now fubjec~l to both the parliament of Great- Britain and its own parliament, and how and when it became fo, are queftions of confider- able difficulty, but which it is by no means necefTary to difcufs on the prefent occasion. All that I am now endeavouring to prove is, that the King is not now, and has not been for more than four centuries, (namely, from the 3 1 ft year of the reign of king Edward III.) and does not appear clearly to have been in any former age, fhe fole legiflator of that country, fo as to afford a ground for fuppofing that he became fo in the ifland of Grenada by virtue of the conquefl of it.
FRENCHMAN,
I think this example of Ireland makes rather again/I than/9r the fuppofed legiflative authority of the Crown in the ifland of Gre nada; more efpecially after that adt of the Britim parliament of the 6th of King George I. which feems to me to be a fort of general declaration of the law upon this fubject. For, if it be juft reafoning to declare, <c that the kingdom of Ireland ought to be fubordinate unto, and dependent upon, the imperial L 2 tc Crowa
Application of i lie reafon ing ufed con cerning Ire land m the ftatute of the 6thofGeo I. to the iflai d of Grenada.
. t 76 ]
" Crown of Great-Britain, as being infepa- <c rably united thereto -, and that the kings " with the confent of the parliament of " Great-Britain, hath power to make laws <c to bind the people of Ireland ;" it feems to be equally juft to conclude the fame thing with refpect to the iiland of Grenada, that is, that, as the faid ifland of Grenada is infepa- rably united to the imperial Crown of Great- Britain by the final ceffion made thereof to the faid Crown by the king of France in the late treaty of peace, it ought to be fubordi- r.ate unto, and dependent upon, the laid im perial Crown, and that the king of Great- Britain, with the confent of the parliament of Great-Britain, hath power to make laws to bind the people of the fame. I can fee no difference between the cafes.
ENGLISHMAN,
I own I am much inclined to reafon in the
fame manner, and more efpecially fince the
year 1766, when, upon the repeal of the
Confirmation ftamp-adt, a fimilar declaratory aft was patted
ofthe-fame . . .
opinion of the with reipect to the JDntilh colonies in Ame-
parliamentary •
right of legi- riCa'
ilacion over the iflard or Grenada, by the famous declaratory aft of par liament in the year i;66, cleaning all the Britiih dominions in Ameiica,
[ 77 1
rica, which is exprefTed in thefe words, to wit, " That the colonies and plantations in " America have been, are, and of right ee ought to be, fubcrdinate unto, and dependent cc upon, the imperial Crown and Parliament ce of Great-Britain ; and that the Kings <c Majefty, by and with the advice and confenf " of the Lords fpiritual and temporal, and the " Commons of Great-Britain, in parliament " cjjembied, had, hath, and of right ought to (c have, full power and authority to make laws " and Jlatutes of fujpcient Jorce and validity to " bind the colonies and people of America, fub- " jeSls of the Crown of Great-Britain, in all *' cafes whatfoever" This ftatute makes no diftin&ion between fuch colonies and planta tions as were properly colonies, or were planted by emigrants from Old England (fuch as Virginia and New-England,) and fuch terri tories as were obtained by conqueft, (as Quebeck, Jamaica and Grenada,) which might with more propriety be called pro vinces than colonies : but it relates equally to them both; fo that both are, in the eye of the law, in the fame political iltu- ation, that is, fubjeft to the legiflative autho rity
t 78 ]
rity of the king and parliament of Great- Britain acting conjointly, but not to that of the king alone. And, as this ftatute is merely declaratory of what the law was at the time of paffing it, and does not purport to transfer any Icgiflative power that had hi therto been verted in the king alone over any part of America, or that might hereafter le gally become vefted in the king alone over any future dominion of the Crown in that quar ter of the world, from the king alone to the king and parliament conjointly, I mould have thought it ought to have been conlidered as a parliamentary decifion of all doubts that might have been entertained before concern ing the legiflative authority over conquered countries, in favour of the king and parlia ment conjointly and againft the pretenfions of the Crown alone.
FRENCHMAN.
It feems to me to put an end to the whole queftion. However, as we have entered upon this fubjecl, I beg you would go on with it, if not as a fubjeft of law, yet, at
lead,
[ 79 ]
lead, as a fubject of hiftory of a peculiar and curious kind, and inform me what Lord Mansfield faid concerning the exercife of this fuppofed legiflative authority of the crown in the cafe of Wales and the other countries conquered by the Crown of England, which, you faid, he cited in fupport of it.
ENGLISHMAN.
Mans- affer-
tc
What he faid of Wales was in thefe Lord words. " As to Wales, Mr. Barrington is " well warranted in what he has faid upon inS Wales- *e the famous Statutum Wallice, or Statute of Wales, in the 1 2th year of the reign of " Edw. I. That ftatute was certainly no more than a regulation made by the king, as conqueror, for the government of that country, which, the preamble of that fta- tute fays, was then totally fubdued. And, " however, for purpofes of policy, he might think fit to claim it as a fief appertaining *' to the realm of England, he could never think himfelf intitled to make laws, with out aflent of parliament, to bind the fub- je£ts of any part of the realm. There- *' fore, as he did make laws for Wales with-
" out
[ So ]
f< out afTent of parliament, the clear confe- " quence is, that he governed it as a con- " queft ; which was his title in fad, and ce the feudal right but a fiction." This was all that Lord Mansfield faid concerninG:
^,
the king's legiflative power over Wales.
FRENCHMAN.
Remarks on Thefe words appear to me to be rather ob- fcure and unfatisfadtory, confidering the im portance of the proportion they are intended to prove. For, in the firft place, Lord Mansfield teems to invert the argument that was neceflary to his purpofe, and, inftead of fhewing that Wales was confefledly a con quered country, and that king Edward, con fidering it as fuch, grounded upon that cir- cumftance a right of making laws for it by his (ingle authority, and actually did make laws for it in that manner, he affirms that king Edward did make laws for it by his fingle authority, and from thence concludes that he mud have considered it as a conqueil. This reafoning may be juft ; but it is too fub- tie and refined for my comprehension, and
ferves
[ 8' ]
ferves only to perplex me. And, in the fe- cond place, I obferve that Lord Mansfield won't take king Edward's word, (as it is given us in the preamble of this fbtute,) that Wales was a fief of the Crown of England.
O *
or that he considered it as fuch, and proceeded to make laws for it as being fuch, (which comes to the fame thing,) but will needs infift upon it's having been a mere conqueft, and upon king Edward's having thought it fo, and treated it accordingly. Now, for my part, I am inclined to give more credit to king Ed ward's own declarations concerning his opi nions and the grounds of his proceedings upon this occafion, than to Lord Mansfield's ac count of them ; and therefore I muft needs think, either that Wales was really a fief of the Crown of England before kins; Edward's
o o
reduction of it, or, at leaft, that king Ed ward thought fit to confider it as fuch, and treated it as if it had been fuch > which, with refpecl: to the prefent queftion, comes to ex- adly the fame thing, becaule, if it was treated as a fief, and not as a conqueft, it does not af ford a precedent of the manner in which it is lawful for a king of England to treat a con- VOL. II. M quered
82
An inquiry into the truth of the fads aflerted by Lord Mans field concern ing Wales.
Firft facl.
Second fad.
quered country. But I am fomewhat curious to know how the fact ftood upon this fubjec~ry both with refpedl to the feudal dependance of Wales on the Crown of England before the reign of Edward I. and with refpecl to the authority by which king Edward made the regulations contained in the Statutum WalU^ Is it true, in the firft place, as Lord Mansfield feems to aflert, that the princes who governed Wales before the reign of king Edward I. were totally independent of the Crown of England, and never did homage for their principality to it's kings ? and, in the fecond place, that king Edward pa-fled the Statutum Wallice by his fingle authority and without the concurrence of his parliament ? Thefe are fads that are curious in thernfelves, as points of hiftory, and on that account I am defirous to be informed of the truth concern ing them, though, perhaps, they are not very material to the dtcifion of the queftion now under ourconfideration, concerning the extent of the prerogative of the Crown of Great-Britain with refpeel to conquered coun tries at this day, bscaufe the conftitutron of the Englifli government has undergone very.
confiderable
t 83 ]
conflderable alterations fince the reign of king Edward I. though feme of the great foundations of it may be ftill the fam,e.
Your laft remark is certainly very juft , that the proceedings of the Crown in that remote part of the Englifli hiiiory are but indifferent grounds to fupport any doubtful claims upon, unlefs they have been followed by limilar ex ertions of authority in more modern times, with the hiftory of vyhich we are better acr quainted, and thofe exertions have been ge nerally acquiefced in and approved of. Bat, to come to the fads you inquire after ; — I have had the fame curiofity which you ex- prefs concerning them, and have therefore looked into books of hiftory, and into the Statutum WaUice itfelf, to fee hqw the truth was concerning them. And the refult is, They do not, that both thefe fads appear to me to be other- ap-ea^toTe
wife than Lord Mansfield has reprefented as Ld. Mans field has re»>
them: the country of Wales having 'not been preferted totally independent of England before the reduction of it by king Edward I. but in a
M 2 ftate
[ 84 ]
ftate of feudal dependance on the kings of England, as king Edward affirms in the Statutum Wallicz ; and the faid ftatute not having been made by the Jingle authority of the faid king Edward, but with the afTent of the great men of his kingdom, or the pro- ceres rcgnl^ which I take to mean the parlia ment of the kingdom. But, that you may judge for yourfelf upon thefe matters, I will mention to you fome of the paffages in the old writers of the Englifh hiftory, and in the Statutum Wallice, upon which I ground thefe opinions.
Proofs from In the firft place, then, I find in the hif-. feudaPfubjec- tory of Matthew Paris, (one of the moft re-
of the old Englifli hiftorians.) the England be- following; pafl"ap;es relating to ancient victories
fore the final . *> ** b
conqueit of it gamed by the kings or England over the peo- Ed~ PIe of Wales before the final
by Edward I. even from the time of William the conqueror, which was more than two centuries before the faid conqueft by king Edward. And mcft of thefe victories were concluded by a feudal fubjeclion of the coun try of Wales to the Crown of England,
agreeably
[ 85 ]
agreeably to king Edward the firfl's declara tion in the Statutum Wallicz, that is, by the performance of homage to the kings of Eng land by the princes, or the nobles, of Wales.
In his account of the reign of king -Wil- ^ *« liam the Conqueror, that faithful hiftorian Ham the Con- relates that in the year 1079, (which was the 1 3th year of the reign of William the Con queror,) that warlike king marched into Wales with a numerous army, and intirely fubdued it, and received homage and fealty from the petty kings, or princes, of that country. This is exprefTed in thefe words. Anno Domini 1079 Rex Anglorum Wittielmus in Walliam duxit exercitum copiojum, et earn ftbi fubjugavit, et a regidh illius ditionis ho- magia et fidelitates accepit.
The next king, William Rufus, made an in the reign expedition againft the Welch, which was lefs fuccefsful than his father's. Yet he by no means yielded up thofe claims of feudal fuperiority over them which had been either eftablifhed, or confirmed, by his father, and which feem to have been quietly fubmitted
to
r 86 j
to during the remainder of the Conqueror's reign, and for the fir.fl years of William Rufus's. Matthew Paris's account of this ex pedition is in thefe words. Eodem anno (fci- licet, anno domini 1094,) Rex Willielmm in Walliam exercitum ducere feflinavit, quod anno praterito Wallenfes^ multis Normannorum oc- cifis, procerum conjractis firmitatibus, caftello Montis Gomerii dircpto ct habitantibus in eo interfe5lh^ igne et ferro finitimos depopulati fuer ant. Rex autem Willielmus^ omnes fines Waliics hofliliter ingrejjus^ cum, per montium divert icula etfyhantm denfitates^ ipfosperfequi mn "oalerety conftruftis in confinio caftris, ad propria remeavit*
Inthereignof The next king, Henry I. reduced the Welch to fubmit intirely to his pleafure, as appears from this paflage of Matthew Paris. Eiodem anno (fcilicet, anno domini 1113,^ Rex Henri cus, exercitum ducens in Walliamy fub- didit fibi Wallenfes pro arbitrio regi& volun- tatis. And in the account of the tranfaftions of the year 1121 the famehiftorian has thefe words. Inde autem (fcilicet^ a Londoniis) cum rex ad Walliam tenderet cum exercitu copiofo.
el fuppliciter obviantes, concordat! Junt cum ipfo juxta fuam magnificentiam vo- luntatis.
In the reign of king Henry II. in the year In the reigR of Chrift 1 1 57, the Welfh were again obliged of Hen« IL to do homage to the king of England. This is related by Matthew Paris in the words fol lowing. Eodem anno Rex Henricus magnam paravit expeditionem* ita ut duo milites de tot a Anglid tertium invemrent, ad expugnandum Wallenfcs per terram et per mare. Intram ergo Waliiam rex, extirpatis Jyhis, nemori- bufque Juccifis, atque wis patefaffiis, caftriim Roelentjirmaevity alias munitiones, antecefloribus fuis furreptas, potenter revocavtt, caftellum etlam Bajingivere reftaura<vitt efy Wallenfibus ad libitum Jubjeffisy cum triumpho Angliam repetivit. Apud Suanduum * multorum cepit homagia, fcilicett nobiliorum.
In the reign of king John they were again jn tue rei2n invaded by the Englifh, and reduced to fob- ofkinS Jo)l11- jedion to the Crown of England, arid were forced to deliver up to the king twenty-eight perfons by way of hoflages for their conti
nuing
Probably Snowdon.
[ 88 J
nuing fubjedt to him for the future. This is expreiTed by Mathevv Paris in the following words. Anno gratia millcfimo, ducentefimo, undecimo (A. D. 1211) Rex Anglorum Jo hannes Juit ad Natak Domini apud Ebora- cum, prafentibus comitibus et baronibm regni. etiam anno idem rex apud Album monafte- magno exercitu congregate, profeclm eft in Walliam, oftavo Idus Julii : ubi in fortitu- dine gravi, Wallice interiora perlujlrans^ ad Snaudunam ufque, obvia fibi quczque contere?idoy penetravit $ regcs omnes et m biles fine contra- dittione fubjugavit. De fubjtffione in pofte- rum obfides viginti ofto Jufcepit \ et inde cum prqfperitate, in die ajjumptionis beatcz Mari,zy ad Album monafterium remeavit. In -the fol lowing year the Welchmen made an incurfion into England, and took fome of king John's caftles, and put the garrifons of them to death, befides fetting feveral villages on fire, and doing other mifchief. This made king John colleft a large army together, in order to invade Wales and deftroy it with fire and fword, and exterminate it's inhabitants in re venge for the faid treacherous rebellion. And he immediately put to death the twenty- eight
perfonSj
perfons, who had been put into his hands the year before as hoftages for the fidelity of the Welch. But he was perfuaded to defift from his main purpofe, of invading Wales, by fome intimations he received of an intention in his army (by the greateft part of whom he was defervedly hated for his innumerable acts of tyranny and oppremon,) either to take away his life themfelves or deliver him into the hands of the Welch. Nor did he after wards refume his defign of invading Wales and reducing it again to his obedience, the remaining part of his reign (which was but four years,) being full of inteftine troubles. But he does not appear to have ever done any thing that tended to a furrender of his claim of a feudal fuperiorky over the Welch, or of his right to the homage of their princes.
In the year 1231, in the reign of king Henry III. (who was the fon ot king John, and the father of Edward I.) the Welch again made incurlions into England, near Mont gomery caftle, under the command of Lew- eilin their prince, and gained an advantage over, the Englifh forces belonging to that
VOL. II. N cattle:
[ 9° J
caftle : which occafioned the king to march thither with a body of troops to revenge thefe injuries. And he on this occafion rebuilt Matilda's caftle in Wales in an elegant man ner with ftone and mortar, and put a gar- rifon into it, in order to reftrain the Welch from making the like incurlions into England for the future. This caftle had been de- ftroyed by the Welch a confiderable number of years before.
Snbmiffion of In the year 1237 Lewellin, prince of
Ltwellin, pr. -TT , r . ^ . . TT
Waies.toking Wales, fent an embafiy to king Henry, re- Henry, m prefenting to him that he was now grown old and infirm, and defirous of living in peace and harmony with all the world, and folli- citing the friendmip and protection of the king of England upon that account, and of fering, in order to obtain it, to fubmit him- felf and all his poileffions to the government and protection of the king of England, and to hold his lands of him in fealty and friendmip, by a perpetual and indiflbluble compact, and, whenever the king mould engage in any military expedition, to affift him with foldiers, arms, horfes and money,
to
r 9- ]
to the beft of his ability, as his faithful vafTal
or liegeman. The words of Matthew Paris
..... words, de-
are thefe ; quod Je fuaque omma dttiom ac tit- fcriptive of a
tela regis Anghrum fubdere decrepit; et de eo t^al u ^ec~
teneret terras fuas in Jide et amicitid, inito
fcedere indijjblubili -3 et, fi rex in expeditionem
iturus ejjet, militia, armis, et equis et the-
fauro, Jecundum vires fuas, ut fuusfidelis, ewn
jideliter adjuvando promoveret. This propofal
was accepted by king Henry, and confirmed
by feveral of the great men of Wales, (the
magnates Wallia,) as well as by the two bi-
fhops of Hereford and Chefter on the part
of prince Lewellin himfelf. Now the fore
going words contain the very definition of a
fief, or territory holden of another by a feu*-
dal and military tenure.
Prince Lewellin at the time of this treaty Prince Lew. was much afflided by the ambitious and un- jadion at tlie dutiful conduct of his eldeft fon Griffin, who "ndutiful fbe"
haviour of His
was preparing to make war upon him in order e^ert fon, to difpoiTefs him of the government. And it was, in a great meafure, with a view to re- prefs the infolence of this fon that he applied on this occafion to king Henry for his protec- N 2 tion.
11^ reduces G if. a to u million.
DeathofLew-
cllin, inApril, 1240.
( 9? ]
tion. The confequence was fuch as he had vvifhed. He got the better of his Ton GrifHn, and reduced him to a compleat fubmifiion to his will .3 infomuch that, when, in about three years after, to wit, in the, year I 240., he found his death app o:iciiing, he obliged his faid fon to confent to a fettlement he had refolved to make of his principality of North- Wales upon his fecond ion David, .who was Griffin's younger brother.- Lewdlia died foon after, to wit, in April, 1 240. But after Lewellin's death Griffin refufed to fub- mit to this fettlement, and a war arofe be tween the two brothers, till David, by an act of treachery, got Griffin into his power and threw him into prifon j upon which Griffin's party, having loft their leader, iubmittcd to the government of David. This act of treachery confifted in an invitation which David o;ave to his brother Griffin to come and
o
The former is meet him at a certain place, to treat of peace together \ where when Griffin, confiding in. David's promjfe of fafety to his perfon, came in a peaceable manner, and in the company of Robert, bifhop of Bangor, and other great men of Wales, David caufed him to
be
Diflenfions between his Ions Grifrin and David.
trcacheroufly apprehended, and inipnlou- ed bv David.
[ 93 ]
be apprehended <and fent to prifon, notwith- Aanding all the remonftrances that were made againft fuch a proceeding by the faid biihop Complaints
,i i r /^ T are made of
and other great men in whole company Gnf- this ad Of fin had come to the faid meeting. The bi- *r5acl£ry to
0 King Henry
fhop of Bangor, through an honeft indigna tion at this piece of treachery, excommuni cated prince David, and retired from Wales into England, and there follicited king Henry to oblige David to fet his brother Griffin at liberty, whom he had fo perfidioufly thrown into prifon. And the bifhop urged the king to do fo to prevent a blemifh in his own hon our from a connivance at fo bafe an act of in- juftice in prince David, ne tanta talifque fa- cinorofa tranfgreffio (fays Matthew Paris, ) re- inotas regiones curiamque Romanam, in honoris regii l^fionem^ macularet ; which is agreeable to the notion that Wales was at that time a fief of the crown of England, by reafon of which it became the duty of the king of England, as upper Lord of it, to attend to the complaints made by it's inhabitants of acts of injuftice committed by it's princes who were his vaflals or liegemen. Accordingly it appears that, upon this complaint of the
biihop
[ 94 ]
bifhop of Bangor, king Henry wrote to
prince David to command him to fet his bro-
David t) "fet ther Griffin at liberty. But David refufed to
Griffin « li- do f and afiure(i ths king that, if his brother
berty : winch
David rcf uics were at liberty, Wales could never be at peace. Thefe things coming to the ears of Griffin, A propofal he fent a private mefTage to king Henry, by S» to king which he allured him that, if he would ufe bis power to fet him at liberty and invert him with the government of North- Wales inftead of his brother David, he would hold all the country from him, the faid king Henry, and faithfully pay him every year the fum of two hundred marks, as an acknowledgment for it, and would moreover aflift him to fubdue all the Welch who were in rebellion again ft him, and who were fituated at the greateft diftance from England and as yet unfubdued, juvaret cum diligcnter ommsfibi rebelled Wallen- Jes, longinquos et indomitosy fubjugare. This of fer of Griffin's (hews that the greater part of Wales was at that time confidered as under a feudal fubjeclion to the kings of England, and that only a few of the moft remote parts wereconlidered as hitherto unfubdued by them,
(indomiiosj or not reduced to fuch fubje&ion.
This
[ 95 J
This fecret propofal of prince Griffin to the king was fupported by the follicitations of a very powerful Welch nobleman, whofe name- was Griffin ap Madoch, who exhorted him to enter Wales with an army and make war againft prince David, who, befides his treach erous behaviour to his brother, had done in juries to many perfons of confequence in that country. The king liftened to this propofal King Henry
. . .. . . , marches into
and advice, and immediately railed a large wales ag
army and marched with it towards Wales, declaring that he had found prince David to arm> be a mod difloyal evader of the commands he had thought fit to fend him, and a rebel to his authority, inafmuch as he had refufed to come before him to confer upon matters re lating to the peace of Wales, according to an order which the king had fent him for that purpofe, though the king had promifed him a fafe condudt, quern cavillatorem in omnibus in- venerat ct rebellem, nee volentem ad pads colk- quium> juxta mandatiim regis, etiam jub faho ducatu, aliquando -venire. This is the lan guage of a king towards a fubjecT:, and not towards an independent prince : fo that Wales muft at this time have been confidered by
king
David treats with k. Hen. and prorhifes obedience to him, and de livers his bro ther Griffin nto his hands: but advifes the king to keep him in cultody.
[ 96 ]
king Henry III. and the people of England, as a fief of the Crown of England, agreea bly to what was afterwards aflerted by king Edward I. in the Statutum Walllce.
The approach of the Englim army to wards Chefter, together with the confcioufnefs that he had many enemies amongft the Welch themfelves, terrified prince David and made him refolve to follicit king Henry's favour. He therefore fent word to king Henry that he was ready to deliver his brother Griffin into the king's hands, provided the king would leave him in pofTeiYion of his principality of North Wales, which he was willing to hold of the king, and not only to take the ulusl oath of fidelity to him on that account, but alfotogive him hoftages for the continuance of his obedience. But he at the lame tims exhorted the king to keep prince Griffin in confinement, and aflured him that, if he did not do fo, but mould fet that prince at liberty, he would foon kindle new difturbances in Wales, even in oppofition to the king's au thority. The king lillened to this propofal of David and followed his advice. Griffin was
delivered
[ 97 ]
delivered by his brother David into king
Henry's hands, with feveral of the moft emi
nent perfons of Wales who were given as
hoftages for the peaceable conduct of prince
David and the reft of the Welch nation.
And they were all, by the king's order, car- The king inv-
ried to London under a guard, and there kept g^5 f™j;*
in fafe cuftody in the Tower of that city, tower of Lon-
* « don. A. D.
Thefe things were tranfacted in the fummer 1241.
of the year 1241, and were compleated be
fore Michaelmas day. And, in eight days
after Michaelmas, prince David himfelf, hav
ing firft obtained a fafe conduct from king
Henry, came to London and prefented him- Prince David
felf before the king, and then and there took don, and takes
an oath of allegiance and fidelity to king
Henry, and foon after returned to Wales in Henry.
peace. Ef poft ottavum diem feftifanfti Mi-
chaelis venit David Londinum ad Regetn ; ct%
faffis ibidem regi ligantid* jide, et juramcnto
omnimodte fidelitatis et jecuritatis, . . . dimif-
fus in pace eft adpropria remeare. Rex igitur,
f.c Wallid fibi fubjugatdy fine ja??guinis ejfu-
f'Gne et ancipitis Mli cajibus> de bojlibus Jin's,
Deo pi-opitio, triumpbrtvit. Here again we
have a proof that Wales was futyugata regi
VPL. II. O Anglia
[ 93 ]
Angli<2> reduced to a feudal fubjeclion to the king of England, or, in other words, was a fief of the crown of England. Matthew Paris has recorded the very inflrument by which king Henry III. on the foregoing oc- cafion, entered into an agreement with the wife of prince Griffin, who was then a pri- foner in his brother David's hands, to fet him at liberty and put him in polTeffion of that part of his father Lewellin's lands which, by the cuftom of Wales, he was intitled to -, and that likewife by which prince David bound himfelf to king Henry to deliver up into the king's hands his brother Griffin, whom he then detained in prifon, and Owen, the el- deft fon of the faid Griffin, whom he like wife kept at that time in prifon, and all the other perfons whom he had hitherto detained in prifon on account of the faid Griffin, and to abide fuch judgment as mould be given by the king's court concerning the faid Griffin's
o o
claim to a part of his father Lewellin's lands. The whole tenor of thefe inftruments proves fo clearly the feudal fubjection of Wales at that period to the crown, that Matthew Paris, after reciting them and relating the attempt which
prince
[ 99 3
prince David made three years after, to wit, in the year 1244, to withdraw himfelf from the faid feudal fubjection, and become a vaflal of the Pope, cannot forbear expreffing his wonder that the court of Rome ihould coun tenance fuch rebellious and treacherous be haviour, and exclaiming in thefe lively words againft any plea of ignorance of the ftate of Wales which the defenders of the proceedings of that court may be fuppofed to fet up as an excufe for diem ; Et quis chrifdanorum ignorat : Principem Wallitf regh Angli<z cffc Fa/Jalulum? Thefe inftruments contain fuch a lively picture of the dependance of the prin-? cipaiity of Wales up©n the Growa of Eng land according to the feudal cuftorns then in ufe in England, that they are exceeding curi ous and well worth your reading at fome hour of leifure, as you feem fond of this fpecies of antiquities. v^\
FRENCHMAN.
i>n« ;i inoa- asiiic 'ii-rfr siulwlq
I ihall be extremely glad to read them,, or
rather to hear you read them to me ; and that
at this very time, that we are examining t;he
queilion, whether Wales was or was not a
O 2 W
t
fief of the Crown of England before the reign of Edward I. For I am now perfectly at leifure, and my curiofity is awakened upon the fubjedl : and I fuppofe you have the book at hand, as you feem to have been lately col lecting thole extracts from it which you have been juft now reading to me in the courfe of our converfation. I therefore beg you would read me thole inftruments without further ce remony, if it does not give you too much trouble. For my part, I am fo defirous of hearing them that I am fure I fhall not find them tedious.
ENGLISHMAN.
The keennefs of your curiofity makes me think it no trouble at all to read them over to you, notwithstanding I have fo lately read them by myfelf. For fociety in the purfuit of knowledge, as in every other occupation, doubles the pleafure that arifes from it, and lefTens our fenfe of the labour we beftow upon it. And you rightly conjecture that I have the book at hand, and have lately been' making the abovementioned extracts from it.
I will
I will therefore immediately fetch it from the next room, which is my library, and read thefe inftruments to you without further delay. But you muft take care not to gape while I am reading them, which perhaps you may find yourfelf inclined to do, as I believe they are longer than you perhaps imagine.
FRENCHMAN.
Never fear me. My curiofity will prevent that : and, befides, I am bound in honour to hear them out patiently, after having prefled you fo earneftly to take the trouble of reading them.
ENGLISHMAN.
Well, here's the book that contains thefe A deed of co-
vcnant be-
inftruments. The firfl of them is a deed of tween king covenant between two parties, to wit, Henry, Se^°'naf i™ the third, king of England, on the one hand, ™fe °f Grif;
° , . fin, prince of
andSenena, the wife of prince Griffin, eldeft Walesforthe fon of Lewellin, the late prince of North Griffin °from
Wales, then a prifoner to his brother David, the
mentin which
acting in the behalf of her faid hufband he was de-
tained by his Grimn, brotherDavid
j I02 <
Griffin, on the. other hand. It is in thefe tyords. Convenit inter dominum Hmricum terfium, Regain Anglorum illuftrem, ex • und parte, et Senenajn, uxorem.Grijfim, (filii.Leo- lini, quondam Principis Nwlkwallia.) quern David j rater cjas tt.net career i mancipatum, cum Owenii.fiiio. Jus, nomine ejufdem Griffiniy ex alt era : Scilicet, quod pradifta Senena manu cepit fro fradjfb Griff, no, vlio fuo, quoddabit domino Regijexcenias marcas, ut dominus Rex eum & prtfdictum- Qiyemum>filiumjuum> libe-
rari facial a car cere pr'aedicl.o \ it a qwd llabit^ * ft jr. ;
judiao curitz [ucE) fi de lure dzheat c.arGer<i(ier tineri. JLt ut aominus Rzx poliea judic_mm : curia face, fccundum legem fallen ftum., efi &, bteredibus fuis habere jaciat, fupcr portione quce eum commgit- de hrtr&ditate -qu(g fuit prce- ditfi Leolinitpatris fui)& quam pradiSlus Da- *uid-dcforciati£fi'Grij]im.1 Item quod, fi idtm owj Griffinus, vel harede s Jui, per confiderativnem curia domini Regis recupertntp*>rtionem,quam ie dicunt continue de bareditnle pr&ditfd ;
/O S'/.'-rq ,f-n J ° *
Jladem Senena manu ccpit pr&pr-t&ditto Griffinot •ffiiiO viro, '& htzredibus /w/V, quod ipfe & h<eredesfui in perpctuum inde reddcnt domiwRegi trecentas warcas annuas ; Jcilicet tertiam par tern in dc-
nariisa
t I03 1
nariis, cs1 tertiam partem in bcbu<;& <vaccis, & tertiampartem in equis, per *ftimationem le~ galium hominum, liber andum Vicecomiti Sa/o- pejburicz &per manusipfius ViceoomitisadScac- carlum domini Regis defer endum> & ibidem li ber andum : Scilicet imam medietatem ad Jcjlum fancli Michaelis, & alter am ad Paf- cham. Eadem etiam Senena, pro pr^fato GnffinOj rciro fito, & h<eredibus fuis manu ce- pit, quod firm am pa cem tenebunt cumpr<efato David, fratre fuo, foper portione qu<e eidem David remanebit de h^reditate pr<cdi£td. Manucepit etiam eadem Senena pro ditlo Griffino, viro fuot £? h^redibus fuis, quod fe aliquis Walknfis aliquo tempore domino Regz> vel hxredibus fuisy rebellis fuerit, pr^fatus Griffinus & h<zredes fui, ad cuftum fuum pro- priumy ipfum compellent ad fath faciendum domino Regi & hxredibus fuis. Et de his om nibus fupraditfis Jirmittr obfervandis^ difta Senena dabit domino Regi David& Rotherum> Jilios fuost obfides : it a tamen, quod ft de pr<e- fato GriffinOj viro fuoy & Qwenio filic fuo, qui cum eo eft in carcere, bumanitus contingat ante quam inde liberentury alter pr^diSforum filiorum eidem Seven* reddctur> reilquo obfide
remdnehte.
remanente. Juravit infuper eadem Senena, tactis facrofan&is EuangeUhi pro fe G? pro pr<?jato Grijfino, viro fttoy G? b*redibu* fuis, quod htfc omnia jir miter obferiabunt. Ef ma- nucepit, quod diffus Griffinus, vir fuus, idem jurabit cum a car cere liber aim fuerit. Et fuper pr<tmifli$fe fubmifit, nomine ditfi Griffin?, <virt fui, Jurifdiftioni tvenerabilium patrum Herefordenfis df Lichefeldenfis Rpifcopontm : It a quod prtfjati Epifcopi, vet eorum alter ; quern dominus Rex elegerit^ ad requifitionem ipfms domini Regis, per fcntentias excommu- nicationis in per/onas, £? interdicli in terrasy eos coerceant ad prxdifta omnia Gf fingula bbfer'vanda. H*c omnia manucepit pr^dicta Senena 6? bond Jide promifit fefatfuram Gf cur at warn quod omnia impleantur : G? quod pr<efatus Griffinus vtr fuusy cum liberatm Juerity G? h<eredes fuiy b*c omnia grata habe- bunt, G? complebunt, G? inftrumentum fuum inde dabunt domino Regi in forma pr^dicJii. Ad mnjorcjnfiquidem hujus rei fecuritatem, facJum eft loc fcriptum inter ipfum dominum Regem G? diftam Scnenam nomine prtfati Griffini, virifui : it a quod parti remanenti pe- v nes ipfum dominum Regem appofitum efl figil-
Lum
him pr&fati Griffini, per manum ditta Senerid uxoris fu<zt una cumfigillo pradiSla Senena -, £? parti remanenti penes ipfam Senenam, nomine preefati Griffini viri fui, appvfitum eft Jigillum domini Regis: quod de fupradifth etiam omni bus complendis, ^f firmiter obferfyandis, dedit pr<edi5la Senena, nomine prxfati Griffini , viri fuit domino Regi pkgios fuprafcriptos j Videli cet ', Radulphum de Mortuo mariy Walterum de Clifford^ Rogerum de Monte a/to, Senefcallum Ceftri*, Mailgun flium Mai/gun, Mereduc JiliumRoberti) Griffinumjilium Maddoc deBrun- feldt Houivell G? Mereduc fratrem ejus, Grijfi- num. filium Wenunwen. %ui h*c omnia pro prefatd Senena manuceperunt ', Gf chartas fuas ipfi domino regi fecerunt. Aft a apud Salopefbtt- riam die Lun*e proximo, ante Affumptionent be at a Marine virginis. Anno regni regis ipfms o quinto.
The next inftrument recited by Matthew Paris on this occafion, is the charter of Roger de Montalt, fteward of Chefter, a groat Eng- lifh baron of thofe days, (who probably had pofleflions in the Englifh counties bordering upon Wales,) whereby he became a pledge,-
VOL. II. F or
or furety, to king Henry for the due per-* formance of every thing that Senena, the wife of prince Griffin, had covenanted to be per formed to the faid king, by the faid Griffin. And there were fimilar inftruments executed
to the king by all the other barons, both Eng- 19
lim and Welch, mentioned in Senena's deed
of covenant above recited, as her pledges ta the king for the due performance of the faid covenant, namely, Ralph Mortimer, Walter Clifford, Mailgun the fon of Mailgun, or, (as I fuppofe) Mailgun ap Mailgun, Mereduc the fon of Robert, or Mereduc ap Robert, Griffin, the fon of Madoc, of Brunfeld, or Griffin ap Madoc, of Brunfeld, Howel, and Mereduc, his brother, and Griffin, the fon of Wenunwen, or Griffin ap Wenunwen -r of whom all but Ralph Mortimer and Wal ter Clifford, feem to have been powerful men of Wales. This charter of pledgefhip is in A charter, or thefe words. Omnibus hoc fcriptum vifuris pledgefhip, of Roger us de Motite altO) Senefcallus Ceftri<e^ fa-
Sciatis quod ego me conjlitui plegium Senen<e uxoris Griffini Jilii Leolini, quondam Principis Norwalli^e, & manucepi pro ed ergd dominum meunif Henri cum, regem Angli* illuf-*
[ I07 1
^ quod omnia qua convcntionavit (idem domino mco nomine prcefati <viri fui> pro libe- ratiom fud & Qivenii filii fui a carcere in quo David f rater ejus eos detinet^ & pro por- tione qiite ipjumGrijlnum contingit de b^reditate^ qua juit prcedifti Leolini patris fuiy G? quam prcefatm David j rater ejus ei deforciat, domino regi firmiter ob/ervabit. In cujus tejlimonium^ buic fcripto figillum meum appofui. • Atfum tipud Salopesburiam dieLwxs ante ajjumptionem B. Maries. Anno regni ipfms xxv.
The i>ext inftrument recited by Matthew Paris is a charter, or deed, of fealty, by which Mardoc ap Howel, a powerful Welch baron, recorded and confirmed an oath of fealty, or allegiance, which he had taken to king Henry, by which he had bound himfelf to be for ever faithful to him, and alfo recorded and confirmed a certain truce, or fufpeniion of hoftilities, which he had lately made with the above-mentioned Ralph Mortimer, with whom he had been at war. This inftrument feems to be curious alfo in another view, by ihewing us that, in this remote age, the great barons of England did fometinies make war P 2 upon
•upon each other, like little fovereigns, with out the king's command. It is in the words following. Sciant prxfentes & futuri, quod of a great err0 Merducus. ft/! us HoweL taftis (acrofanclis
Welch baron, .6 v ^ .
or land-hold- juravt, quod ab ijlo die in antca omnibus, diebus Henry III."8 ™ttz me<z ero adfidelitatem domini regis Anglia^ & ferviam ei Jideliter Gf devote cum omnibus uiri&as mcis, 6? toto poffe meo, quandocunque indiguerit fervitio meo\ & treugam inter domi- num Radulphum de Mortuo Mart £f me initam, ufque ad feflum fantti Micha'e'lis, anno regni rcgis Hennci vigefimo quint oy ex parte me a fideliter cbjervabo : & tarn ad fidelitatem do mino regi in perpctuum obfervandamy quam ad treugas prtediflas obfervandas ufque ad termi- numpredittum, fuppcfui me jurifdittioni domi ni HerefordenjiS cp^> cpi, & do mini Cogent r en- fts & Litchfeldenfis epifcopi, vet alterius eorum, quern dominus rex ad hoc elegerif, ut fi in aliquo contra pr&diclam Jidelitatem domini regis, vel contra obfervantiam prcediciarum treugarumy venero, liceat eis, vel eorum alien, quern do- minus rex ad hoc tlfgtrit^ perj'onam meam & omnes meos excommunicarc, £5? terram meam inter dkere, donee de travfgrejjione ipfa fatisfe- (ero ad plenum. Etfiforfttan infra prcediclum
Jejlum
r 109 i
fejium S. Michaelis, inter prgdittum Ra- dulphum de Mortuo Mari G? me nulla pax
f ner it reformat^ licet pojl fejlum illud helium tnoveam pr^diffo Radulpho, non obligabit me pr <edi Stum jur amentum i dum tamen erga do- minum regem fidelitatem obfervem continuant^
ficut prxdiffum eft. Et fi helium pojl pr<e- diclum terminum inter nos moveatur, nihilo- mimis dominus rex fuftinebit, quod ego G? met receptemur in terra fud^jicut alii fideles
fui. Ad prxdifta autem cbfervanda domino regi & htzredibus fuis, obligo me per jura- mentum prxdiflum, G? per Jigiili mei appofi- tionent) quod hide fcripto appofui^ ad major em confirmationem pr<edittorum. Attum in craf- tino affumptionis beat<z Mari<ty anno regni regis Henrici w'gefimo quinto.
The hiftorian then tells us that the follow ing Welch barons, to wit, Owen ap Howelj Mailgun ap Mailgun, Mereduc ap Mereduc, Howel ap Cadwalthlen, and Cadwalthlen ap Howel, executed charters of fealty to the king of the fame tenour with the fore-
jomg,
The
Subftance of The lad inftrument recited by Matthew
a charter, or .
deed, of feal- Pans upon mis occahon is the charter of prince David! prince David, by which that prince binds himfelf of Wales, to to kjng Henry to deliver up his brother Grif-
K. Henry III. *\-
fin, then a pritbner in his cuftody, and his brother Griffin's eldeft fon, Owen, and the other perfons then in priibn by his, David's, order on account of his faid brother Griffin, into king Henry's hands ; and to fubmit to the judgement of king Henry's court with refpect to the claim of Griffin to a part of his father Lewellin's lands 5 and to do many other things, therein mentioned, for king Henry's fatisfaction ; and, particularly, to hold his ftiare of his father Lewellin's inheri tance, that mall be adjudged to him by the king's court, of king Henry in capitc -9 and that his brother Griffin (hall do the fame with refpect to the part thereof which mall be adjudged to him. The words of this deed, The words or charter, are as follows. Omnibus Chrijli Jidelibus, ad quos pr<efentes liter* pervenerint, David) Jilius Leolint, faint em. Sciatis quod conceffi domino meo, Hsnn'co, regi Anglic il- bftriyfilio do mini yohannis regis : quod deli '- berabo Griffinum Jratrem meumt qucm tcnco
incarceratumy
.[ I" ]
incarceratum, una cum filio fuo primogenito^ & aliis> qui occafione pr^dicli Griffini funt in parte med incarcerati^ & ipfos eidem do mino meo regi tradam. Ef poflea ftabo luri in curia ipfius domini regist tarn fuper eo^ utrum idem Griffinus debeat teneri captus, quam fuper portions terr*ey qu# fuit prxditti Leolini patris met, ft qua ipfum Griffinum contingere debeat fecundlun confuetudinem Wallenfium-, it a quod pax fervetur inter me &? pr<editfumGriffiniimJratrem meum^ \ei\qmd caveatur de ipfd tenendd fecundum conftdera- tionem curt* ipfius domini regis : Q? quod tarn ego quam pr^diftw Griffinus portions noftras, qua nos contingent de prxdicJis terris, tenebi- mus in capite de pr<edi5lo domino rege. Ef quod reddam Roger o de Monte altoy fenefcalb Ceflri<e, terram Juam de Muhant cum perti- nentiis : G? fibi & aliis baronibus & jidelibus domini regis, feifmas t err arum fuarumt occu- patarum a tempore belli orti inter ipfum dominum Jobannem, regem, & prxdiftum Leoiinum, pair em meum : fa/vo jure proprie- tatis cujujlibet paSli & injlrumenti^ fuper qua ftabitur luri hinc, ir.de ^ hi curia ipfius domini regis. Qt quod reddam ipfi domino regi-
omnes
t "2 ]
Mines expenfas, quas ipfe Gf fui fecerurit occafione exercitus ifiius. Ef quod fat^sfa* c^am de damnis & injurlh i Hat is fibi & fuis, fecundum confiderationem curi* pr<edic3*y vet male/adores ipfos ipfi domino regi reddam. Ef quod fimiliter d$mino regi reddam omnia homagia, qua dominus Johannes, rex, pater fuus, habuit, & qua dominus rex de jure ha- bere \debet: G? fpecialiter omnium nobilium Wattenfium. Ef quod idem dominus rex non dimittet aliquem de fuis captivis, quin ipjt domino regi 6? fuis remaneant Jeifmte fate. Ef quod terra de Rnglefmere, cum pertinen- tiisfuis, inperpetuum remanebit domino regi G? haredibus Juis. Ef quod de ccetero non receptabo vtlagos vel forts banniatos ipjius domini regis, velbaronumfuorumdemarchia, in terra medy nee per mitt am receptari. Ef de omnibus articulis fupraditfis, G? fingulis, Jirmiter & in perpetuum obfervandis, domino regi & hxredibus fuis, pro me & hxredibus meis, cavebo per ob fides G? pignora, &? aliis modis, quibus dominus rex dicer e voluerit & diflare. Ef in his & in omnibus aliis Jlabo voluntati & mandatis ipfius domini regis, & luriparebo omnibus in curia fua\t In cujus
rti
[ "3 ]
rei teftimonium pr#fe:iti fcriptofig Ilium meum appendi. Act um apud.Alnet. juxta j!ui)iitm Efoey de fantto Afapbo, in Jcjio decollationtf S. Jobannis Baptiji<£. anno predict domni regis Henrici mgcfimo quinto. Et fciendum^ quod illi qui capti detinentur cum pr^dicJo GriffinO) eodem modo tradentur domino Regi, donee per curiam fuam confideratum fuerity utrumy 6? quomodoy deb e ant deli her art. Et ad omnia fir miter tenenda, ego David juravi Juper crucem fanciam, quam cor am me fed deportari. Venerabilis etiam pater Howe/us epifcopus de fanclo Afapho, ad petitionem me- am, Jir miter promifit^ in or dine fuo, quod h<ec omnia prcedifta faciet & procurabit^ mo di s quibus pot cr it > obfervari. Edenevet fiqui- dem Wangan, per prtzceptum meum^ illud idem jti^a^it juper crucem pr<edi5lam. Achim ut jupra. Prater*: a concejji pro me & hfredibus ?neis, quod ft ego vet bwedes mei contra pacem dcmini regis vet haredum fuorum, vet contra articulos pr<edi£Jo$, aliquid attcntaroerimus> tat a h<ereditas nojlra domino regi £•? b^redi- bus fuis incurratur. De quilnis omnibus & fmguiis, fuppofui me G? b<eredes meos jurif- i arcbiepifcopi Cantuari^nfis^ G? epif- VOL. II. Q^ cvforwn
t "4 ]
coporum Londhienfis, Herefordenfis, & Co- ventrenfis, qui pro tempore pr^erunt, quod dimes, vel unus eorum, quern dominus rex ad hoc clegerif, pojjlt nos excommumcare, & terram noflram interdicerey ft aliquid contra prxdifta attentaverimus. Et procuravi^ quod epifcopi de Bangor, G? de fancto AJapb, chartas fuas domino regi fecerunt^ per quas concefferunty quod omnes fententias, tarn ex- commnnicationis quam interdiBl^ a pr<e- diftis archiepifcopOy epifcopis, vel aliquo eorum^ ferendas, ad mandatum eorum exe- quentur.
FRENCHMAN.
Conclufions \ am much obliged to you for reading thefe
drawn from . 111
the foregoing charters to me, and have been greatly enter- ;rs' tained by them. They feern to me to prove moft clearly that Wales was at that time held of the crown of England as much as any part of England itfelfj or, at lead, that thofe parts of Wales over which the influ ence of the two brothers Griffin and Da vid extended, were held fo. Griffin's wife Senena even engages for him that he and his heirs for ever mall pay a yearly rent, or ac knowledgement, to king Henry and his fuc-
ceflbrs,
[ "5 }
ceflbrs, of the value of 300 marks per annum, for his portion of his father Lewellin's lands, befides engaging that he fliall, at his own expence, compel any of the Welch, who fliall at any time rebel againfl the king, to return to his obedience and make the king full fatisfaftion. And David, (whofe charter of fidelity feems to be more important than the other, becaufe David was at that time in pofTeffion of the govern ment of Wales, and was permitted by king Henry to continue fb in confequence of his performing the things ftipulated in that char* ter,) fpeaks of king Henry as being his Lord, [domino meo Henrico, regi Angli<z^\ and pro- mifes to abide the judgement of the king's court, both concerning the juftice of his im- prifonment of his brother Griffin, and con cerning the claim of Griffin to a part of his father Lewellin's lands, and that both he and Griffin fhall hold their lands of Henry in < capitc. And he further engages to procure king Henry all the homages in Wales which king John, his father, had received, and which king Henry himfelf ought by right to have received, that is, he fays, the homages
Q_2 Of
t "6 ]
of all the nobles of Wales. [Et quodftmi- liter domino regi re detain omnla homagla qua dominus Johannes rex, pater fuus, babuit, et qua dominus rex de jure habere debet, et, fpe- daliter^ omnium nobilium Walknf.um^\ No thing can be a clearer proof than theie words, that Wales was at the time of this charter in
a ftale of feudal lubjedion to the crown of
•
Wales was England. But, I think, they feem alfo to
not a fmele _ . , r r r ,
fief hclJeii of fhew that it was not a iingle her or the crown,
EnaiCandVn b°/ held of the kinSs of England b7 the princes the prince of of Wales alone, (as Normandy had been
Wales, but an c
affembiage of held or the crown or r ranee by the dukes or of Normandy alone,) but rather that it was an
the crown of affemblage °f fi£fs of the crown of England,
England by
the princes held leverally by all the nobles of the country
great baron*, as we^ as b}' tne Princes of it. For the nobles of or land-hold- Wales do not appear to have held their lands
ers, of the rr
country. of the princes of Wales (as the nobles of Nor mandy held their lands of the duke of Nor mandy) but to have held them immediately of the king of England, and that by military tenure. For this feems to be the meaning of
o
the words uied in the fecond instrument you read to me, to wit, the charter of alle giance, or fealty, of the Welch nobiernan named Merduc ap Howeij which are as fol
lows j
lows ; Juravi, quod omnibus diebus vita mea ero ad fidelitaiem domlnl regis jinglia, et fer- viam ei fidellter et devote cum omnibus viribus ?neis et toto ^pofle .ineOy quandocunque i?idigue- rit fervitio meo.
ENGLISHMAN.
Your remark feems very juft. It does in deed appear from thefe instruments, that Wales was not a {ingle fief of the crown of England, but an allemblage of fiefs, the fe- veral nobles, or great land-holders, of the country, all holding their lands immediately of the crown, and doing, Growing, homage for them to the king. And, as to the go- A conjeflure vernment of it, it feems probable from feveral paflages in the faid Matthew Paris's hiftory, that the kings of England permitted them at 1241. this time to elect their own governours, whom they called princes, and to make ufe of their own laws and cuftoms, fo far as was con- fiftent with their allegiance to the crown of
O
England, and with the obligation they Jay under, in conference of that allegiance, to fubmit to the judgement of the king's great court in fuch cafes as iliould be brought be fore
ear
[ "8 ]
fore it, as for inftance, in difputes with their princes, or between baron and baron, both tenants in capite of the crown, concerning their lands. This feems to me to have been at this time the political condition of Wales.
FRENCHMAN.
This political condition feems to be a clofer connection with the crown of England than the condition ot a country holden of the fame crown as a fingle fief by the prince of it, and in which all the land-holders but the prince, had held their lands immediately of the prince, and not of the king of Eng land. For in that cafe only the prince of the country would be immediately connected with the crown, whereas in the prefent cafe every great noble, or land-holder, was ib connected. Wales therefore was at this time more diftant from the ftate of a country that was totally independant of the crown of England, (which was the flate in which Lord Mansfield feems to have fuppofed it to be before the conqueft of it by king Ed ward the i' ft,) than it would have been if
it
[ "9 ] .
it had been held of the crown by its princes as a fingle fief, in the fame manner as Nor mandy had been held by its dukes of the crown of France. And therefore it ought by no means to be confidered in the light of a mere conquered country, taken from an alien ene my, when Edward the ift reduced it to his obedience, as Lord Mansfield feems to have confidered it ; nor can any argument be de rived from it, one way or the other, con cerning the extent of the prerogative of the crown with reipect to conquered countries.
But, pray, fince we have gone fo far into the hittory of the dependance of Wales on England, let me know what Matthew Paris and the other old hiftorians fay of the con dition of that country during the remaining part of the reign of king Henry the 3d after the year 1241, when the aforefaid charter of prince David was executed, and during the ten or eleven firft years of the reign of king Edward the ift, and before his final reduc tion of the country and paffing the Statutum Walli*) which, I think you faid, was in the year 1284. Did either king Henry or king
Edward,
No argument can be drawn from the cafe of Wales with refpeft to the power of the Crown over conquered countries.
Of the politi cal condition of Wales froni the year 1 241 to the final re- du&ion of it byK Edw.I. in the year 1284.
[ 120 ]
Edward, during this interval, remit the ho mages of the princes and other great barons of Wales, or, in any other manner, re nounce their fovereignty over Wales, and acknowledge it to be an independent country ?
ENGLISHMAN.
Far from it. The connection between Wales and the crown of England was rather ftraightened than relaxed during this period, as you will judge from the fhort fummary of the hiitory of it which I will now endea vour to relate to you.
After the aforefaid agreement between David, prince of Wales, and king Henry, which was in the year 1241, every thing went on fmoothly between them for about three years. And it feems probable that David's ambition during this time was fome- what reftrained by the fear that king Henry might, if he was provoked by any new at tempts of David, fet his brother Griffin (who was a prifoner all that time in the Tower of London) at liberty, and encourage him to lay claim to die government of Wales,
But
of London, in March, 1244.
( "I )
But he was delivered from this apprehenfion Death of in the month of IVforch in the year 1244, Wckh prince, by the death of Griffin, who, growing impa- in the Tower tient of his confinement, was killed in en deavouring to make his efcape from the Tower. The manner of his death was this. He tore into long flips the meets and table cloths and tapeftry of his apartments, and fewed, or fattened, them together fo as to make a long firing, by which he hoped he mould be able to let himfelf down from one of the windows of his apartment and fo make his efcape. And he accordingly at tempted it. But, the firing proving to be too Ihort to reach the ground, he hung for fome time in the air at the end of the firing at a confiderable height from the ground j and at lafl, the firing breaking with his weight, he fell down through that remaining fpace upon the ground, and broke his neck. King Henry, when he heard of it, was angry with the perlbns who had the cuflody of him, for their negligence in not preventing him from making fuch an attempt, and ordered his elded fon, Owen, who had been kept a prifoner with him in the Tower, to be VOL. II. R guarded
Prince David prevails with the Pope to abfolve him from his alle giance to K. Henry. A. D. 1244.
.Prince David and the Welchmen rebel againft king Henry, and make in- curfions into England. A.D. 1244*
[ I" ]
guarded with greater care. But the death of this prince Griffin feems in the event to have been a misfortune to king Henry. For very foon after it we find his brother David cabal ling with the Pope to make off his obedience to the king, and become a vafTal, or tenant, of the Pope, and pay him a rent of five hundred marks per annum for the lands he held in Wales, if the Pope would afbfolve him from his oath of allegiance to king Henry, which he pretended had been ex torted from him by violence : and the Pope agreed to the propofal, to the great and juft indignation of our honeft hiftorian, Matthew Paris.
*•»••, '. t i ••<«/•••*'» •' • "• <>'''1 • : r *>f * i *
Upon this agreement with the Pope, which was in the year 1244, prince David and the Welch-men openly took arms againft king Henry and invaded the adjoining counties of England j and, by the negligence and inac tivity of the king, they met with confiderable fuccefs. The war, or rather rebellion, con tinued through the year 1245 and to the year 1246, but with great loffes and misfortunes to the Welch as well as the Englim ; and in
the
[ I23 ]
the fpring of the year 1246 prince David died, leaving Wales in a miferable ftate of confufion and defolation. Upon David's death the Welchmen chofe for their prince, or leader, the fon of one Griffin, who was a great favourite of king Henry, who feems to have been the perfon mentioned in, the ac count of the year 1241, under the name of Griffin ap Madock, as a very powerful Welchman, who at that time perfuaded the king to march into Wales with an army againft prince David in order to force him to fet his brother, prince Griffin, at liberty. When this Griffin, king Henry's favourite,, heard that the Welchmen had chofen his fon for their prince in the year 1246, he left the king, who had till then entertained him at his court with great honour, and fled into Wales to fupport his fon in his new dignity. And the hoftilities continued between the Englifh and Welch for fome years, to the great difadvantage of the Welch and devafta- tion °f VValt'8
_ . . ... . . . .in ;the courfe
tion or their country, miomuch that lome or of the rebei- the Welch bifhops fled into England to beg J^^iSf a charitable fubfiftence from fome of the rich ftiops fled into
,. . , f , i i j r i Enland tor a
religious houles there, the lands of their R 2 bifhopiicks
TnA.D 1250 the Welch are intirely redu ced to the o- bedience of king Henry.
The king ap- pointsjohr.de Grey, anEng- li(h baron, for their govern our, in confi- deration of a yearly rent of 333 pounds flerling.
And icon af ter appoints another Eng- lifh baron, nam'dAlande Zouch,gover- nourof Wales in the room of JohndeGrey, in confidera- tionofa yearly rent of 733 pounds fieri.
[ "4 1
bifhopricks being laid wade and rendered of no value to them. At -ail in the year 1250, that is,- four years after the death of prince David, and fix y ?.ars after the commencement of this rebellion., the Welch were quite con quered and reduced to the obedience of king Henry, and obliged to receive the Englim law amongft the n> and an Englim baron for their governour, to whom king Henry let their country, or the government of it, to farm for a yearly rent in money. The firft perfon he appointed in this manner to govern Wales was one John de Grey, who paid him five hundred marks, or three hundred and thirty three pounds fterling, a year for the govern ment; and in a mort time after he removed this John de Grey from the government, and gave it to another Englim baron, named Alan de Zoucb, who offered him a higher rent for it, namely, the yearly fum of eleven hundred marks, or feven hundred and thirty three pounds flerling a year. This was the cafe with that part of Wales which was ad joining to Chefnire. It does not appear that the more remote and interiour parts of Wales were yet reduced to this condition.
This
[ "5 ]
This Alan de Zouch had the title of Jufti- The tide of
** ' AlandeZouch
tiarius Wattlce, or Juftitiary of Wales, or was juftitia-
i r r \TT i !_• 1_ _r • • riusWallJtf Qf
thofe parts of Wales which were adjoining to juftitiary of Cheshire. And Matthew Paris fays that in Wales- the year 1252, he brought a conliderable quantity of money from thence, of the king's revenue, in carts, to the Exchequer in Lon don, and that he there publicldy declared on that occafion, quod tot a Wallia obedient er et in face legibus fubjacet Anglic anis, that all Wales was reduced to the king's obedience, and had quietly fubmitted to the Englifh law. And the bifhop of Bangor, who had retired to the abbey of Saint Alban's, laid the fame thing. At this time therefore Wales was more than a fief of the crown of England j it was a part of the realm of England in the actual poffefilon of the king.
In the year 1254 king Henry the 3d gave Wales, Gafcony, Ireland, Briftol, Stamford, and Graham, to his eldeft fon prince Edward, who was afterwards king Edward the id, but who was at that time a boy of fifteen years of age, and whom he had juft then married to Eleanor, the fitter of Alphonfo,
King Henry makes a dona tion of Wales and Ireland, and feveral other domi nions, to his fon Prince Ed ward upon his marriage. A. D. 1254.
one
New difturb- anccs arife in Wales in con- lequcr.cc or the opi ref- fions of one Godfrey de Langley, their governour.
They will not acknowledge Pr. Edward for their lord.
[ '26 ]
one of the kings of Spain. By this dona tion, 1 conceive, Wales for the nrft time became a jwgle in./ of the crown of Eng land, having bcioic the late rebellion been (as we before obicrved) an ademblage of fiefs hoiden of the Crown by the feveral great land-holders, or nobles, amongft whom it was divided, who all did homage to the kings of England for the lands they re- fpedively poilefled.
The peace of Wales was foon after di- fturbed by the oppreffions of one Godfrey de Langley, whom the king had fet over them as their governour, or juftitiary, and who feems to have been continued in that office after the king's gift of the country to his fon Edward. Thefe oppreffions were fo many and great that the Welchmen again took arms for their defence. They had not acknowledged Prince Edward for their lord, in confequence of the above donation of his father, though they had fubmitted to the king himfelf : but they feem to have thought that the king had no right to alienate his immediate fovcreignty over them to his fon
without
[ I27 1
without their confenti and they were nod difpofed to confent to have Prince Edward for their lord on account of the extream in- Pr. Edward m
• . r.. . this early part
folence and rnjuftice with which he and his of his HfiMSW whole houmold, by his example and per- great info. miffion, treated every one they had any con- !er^e ana m" cern with. For fuch were the unpromifing beginnings of prince Edward's conduct, though he afterwards proved a great and prudent king. The Welch, however, were The
n't !"<.• "'A * mate incur-
not terrified by his haughtinefs, but boldly fionsintoEng- ade war upon him about this time, and ^th tat'littk penetrated as far as Chefter in their incurfionS rel^ance-
. . A. D. 1256.
on the Englilh territory, laying all the country wafte as they patted through it. Nor was prince Edward, or the king his father, at this time able to refift them, the king's treafures having been lately exhaufted by expences in foreign parts, and the En glim, nation being The Engr'fo
5 nation are dif-
highly difcontented with the repeated acts of fatisfied with oppreflion committed by the king, and the rf'bSh kJJg difgufting behaviour of his fon Edward, fo Henry*/"1 h>*
ion, Prince
as to be unwilling to affift them in repulfing Edward. the Welch, and not forry to fee them in volved in difficulties which might tend to reprefs their tyranny, Thefe things hap
pened
The Welch raife two very powerful ar mies.
Pr. Edward threatens to bring over an army from Ireland to re duce them.
The 'Welch
provide fhip- ping to pre vent inch an invafion from Ireland.
penedin the years 1256 and 1257, in which latter year the revolt of the Welch feerns to have been very general, as they are reported to have raifed two armies againft the Englifli of no lefs than thirty thoufand men each, of whom five hundred men in each army were horfemen cloathed in elegant armour, and mounted on horfes which were covered all over with iron. Prince Edward, being unable to refift this force with the troops he had then at his command in England, and being unable to procure any affiftance from his father for the reafons above-mentioned, threatened to bring over an army from Ireland, (which the king had made over to him as well as Wales,) to reduce the Welch to obe dience, threatening to break them to pieces like a potter's veffel. But this invaiion they endeavoured to prevent by building a number of gallies, and fitting them out for the fea with arms and viduals, to oppofe any fuch, Irilh forces in their paflage on the fea from Ireland to the coaft of Wales. Thefe efforts for their defence at this time were attended with fuccefs under the command of the prince they had chofen to command them,
whole
om no
ii b
t 129 j
whofe name was Lewellin, and who was one of the Tons of the late prince Griffin who had died in confinement in the Tower of London. And Matthew Paris (who had blamed them before for rebelling againft king Henry in the year 1244, under their former prince David, as being gujlty of perfidy and in- juftice .againft the king) commends them for their prefent infurreclion, as being juftly warranted in taking arms by the oppreflions they had fuffered from Godfrey de Langley, the juftitiary whom the king had let over them j and fays that their caufe was allowed to be a juft one even by their enemies. This honeft hiftorian (who teems to have had no notion of the doctrines of paffive obedience and non-refiftance,) laments at the fame time the ignominious tamenefs and timidity of the Englim nation in fubmitting to the various oppreffions the king had exerciled towards them, inftead of rifi.ng in arms like the gal lant Welchmen, to procure the redrefs of
their grievances. The Welch, under the They g^" *
j /• i - - T 11- • j Vldloi7 over command of their prince Lewellin, gained king Henry's
• n . i • army, in the'
a victory m this year 1257 over an army
which king Henry brought againft them ;
VOL- II." S ' but,
but, fcon after, fue for peace upon moderate and reafonable terms.
t
but, upon the king's raifing another great army to oppofe them, and procuring bodies of troops to be fent him from Scotland and Ireland, in order to furround and invade their country on every fide, prince Lewellin, by the advice of his great men \de corifitio Juormn optimatiim\ fe^nt merTengers to the king to beg for peace, but upon condition that they mould be reftored to the enjoyment of their own laws and antient liberties, as they had enjoyed them till within a few years paft j and that they mould not be fubject to prince Edward, or any other perfon than the king himfelf : for that they would not bear for the future to be transferred, or fold, from one perfon to another, like fo many oxen or afles. This juft and moderate requeft the king refufed to grant, threatening to punifh the Welch with great feverity. But he gained no advantage over them during the fummer, and in the winter returned inglorioufly to London,
An inference From this propoial of pnnce Lewellin it
from the faid L - w • i /• i 11 ^^
oial of t,hc appears that the Welca conhdered themfelves
as ^J^8 of the king of England, but as iubjecls who had been opprefled by his go vernment,
King Henry refuies to make peace with them.
[ '3' 1
vernment, and who had been driven by fuck oppreffion to the neceffity of taking up arms for their defence : and the oppreffions they feem to have had in view, were, £rft, the abolition of their laws and cuftoms by the introduction of the Englim laws> which had lately been eftablimed among them j adly, the extortions of money and goods from them which had been committed by the governours, or juftitiaries, whom the king had fet over them -, and, 3dly, the transferring the im mediate feudal fuperiority over them from the king to his fon, prince Edward, without their confent. But they acknowledge that they ought to be fubject to the kinghimfelf, provided he will govern them with juflice and moderation.
King Henry having rejected the propo- Thewarcon- fition made him. by prince Lewellin for a ^\\ ' peace, the war continued, and the Welch En^{ gained confiderable advantages in it,, meeting with bat little refinance from the Englim,
pvM
and being fecretly encouraged by fome power ful barons in England (of whom it was encouraged
r r n T i r" r- • by fome DOW-
luipected that Simon de Montfort, earl of erful E S 2 Leicefter, barons'
Leicefter, was one,) to continue their hofti- lities. This was the fame earl of Leicefter who became foon afterwards fo famous by heading the confederacy of the Englifh ba rons who took arms to redrefs the tyrannical government of the king.
TheEnglHh In the year 1258 the Englifh gained an
vantage over advantage over the Welch by means of a
the Welch by treacherous attack upon them at the time
A, 0.1258. they were treating about a peace. Yet the
Welch defended themfelves with bravery,
and killed many of their treacherous ailailants.
The Welch jn fac year j 2 - g fae \Velch again made
again make ^ J J' °
an offer of king Henry an offer of peace, fearing that,
?ienry.° "S when the diflenfions then prevailing in Eng-
A. D. 1259. jancj fhcuid be pacified, the whole Englifh
nation would unite in endeavouring to fubdue them, and would then fucceed in the at tempt, and would treat them with extream feverity. They therefore propofed to buy a peace of them ; by giving to the king him- felf the fum of four thoufand marks, or 2666 pounds fterlingj three hundred marks, of two hundred pounds, to prince Edward \
and
[ '33 J
and two hundred marks, or 166 pounds, to But, the king
• rt i i n- reJe#s their
the queen. But the king rejected the offer offer, and the with contempt : and thereupon the Welch •^efolved to continue the war in their own defence to the befl of their abilities.
The intefline troubles of England, known by the name of the barons wars, began in a little time after this j during which the king was not at leifure to profecute the war againft the Welch j who were alfo protected by an alliance they had formed with Simon de Montfort, earl of Leicefter, and the barons of his party. In purfuance of this alliance they joined the barons army with a large body of men, of whom a great number was (lain in the important battle of Evemam, which was gained by prince Edward over Simon de Montfort and his army in the year 1 265, and which ended that civil war.
Thecirjhvar, called the ba rons ivar, breaks out in England.
The Welch join the army of the barons with a large body of men, of whom ma ny are flain at the battle of Evefham. A.D. 1265.
In the year 1 268 king Henry, being then King Henry
rid of the oppofition of his Englifh barons, Shropfto* '
marched with a powerful army into Shrop- vvnh a great
» f- army, to m-
fhire, with an intent to take an ample re- vade Wales.
l • • • TXT i f t i A- D- *268-
venge upon his enemies m Walts, who had
fo
Bar, anon the fubmifuon of the Welch to his pleafiire, hegrants them a peace on the ''••yr.ient of thirty thou fand pounds fU.rh;ie.
f
fo long refitted his authority, and had lately taken part with Simon de Montfort and the other confederate barons againft him. But, upon prince Lewellin's lending meffengers u* treat with him of peace upon fuch terms a$ he thought proper to impofe, and at the in- tercefiion of the Pope's legate, he granted the Welch a peace upon their paying him the very large fum of thirty thoufand pounds fterling, and reftored to prince Lewellin the porTeffion of four diftrids of land in Wales, called Cantreds, of which he had fome time before deprived him on account of his rebel lion. This feems to have been the laft publick tran faction relative to Wales in the reign of king Henry the }d, who died in the month of November of the year 1 272.
In the beginning of king Edward the ift's reign prince Lewellin was fummoned to
Pr. of Wales, 1,1 r .1 i • »
to attend h\s attend the ceremony of the king s coronation, as being one of the king's liegemen who ought to do homage to him. But the prince refufed to attend this duty. And in a fhort time after, upon the king's calling a parlia- 'merit at We A minder, he was again fummoned
by
Death of K. Henry the 3d. A. IX ,17Z.
T, j|'H : ajj
KEdw.theift
fummons
Lewellin,
coronation and do him homage.
t '35 2
fry 'mefiengers from the king to come to Weftminfter -and perform his homage. But he excufed htmfelf from his duty ori thfe occafion upon a pretence of danger to his life, if he went into -England, -from the wicked defigns of fome powerful Englifhmen againfl him ; and he therefore defired that the king's fon and Gilbert de Clare, earl of Gloucester, and Robert Burnel, the king's chancellor, fhould be put into his hands, as hoftages for his fafe return to Wales, in cafe he obeyed this fummons : but did not deny that he owed king Edward homage. ; King Edward rejected this requeft of the faid hoftages with mdignation, and went on with the bufinefs of the parliament without taking further no tice of the Welch prince on that occafion, and pafTed all thofe ads which are ftill ex tant, and well known to English lawyers under the name of the Statute of lYeJtminjler the fir ft. But when the parliament was at an end, the king went to Chefter, which is on the confines of Wales, and to which it was therefore eafy for prince Leweliin to come without any danger to his perfon from his enemies in England. And therefore he
there
Upon prince Lewellin's re peated refuf- als to do ho mage to king Edward for his land in "Wales, the Icing raifes an army in order to expel him from it.
Inference therefrom.
[ '36 ]
there fent another fummons to Lexvellin to attend him and perform his homage. But the prince ftill refufed to obey him : upon which the king drew together an army, and refolved to march into Wales, and expel the prince from the fief, or land, he held under him, fince he refufed to do him homage for it. Quo mandath regiis par ere detrettante, rex exercitum corruocat, difponens principem, ft hi denegantem homagiumy de feodo fuo ex- pugnare. Thefe are the words of Thomas of Walfingham, an old historian of con- fiderable credit. By thefe words it is plain that king Edward at this time confidered the prince of Wales as his liegeman, or feudatory, and not as an independant prince, and pre pared to make war upon him in the formed character only. And we have feen by the whole feries of the hiftory of the former reigns that, in fo doing, he only trod in the fteps of his predeceflbrs ever iince the time of William the Conqueror, to moil of whom the princes, and other great land-holders, of Wales, had done homage for their lands.
King
[ '37 1
King Edward accordingly made war upon prince Lewellin, and in the courfe of a couple of years reduced him totheneceffity of fuingfor peace, which he granted him in the year 1 278 upon the folio wing conditions; to wit, i ft, That prince Lewellin mould fet all thofe prifoners at liberty without ranfom, or demand of any kind, who were in prifon for having amfted king Edward, or, in any manner, on account of the war with England ; 2dly, That he fliould pay to the king, for his friendfliip and favour, the fum of fifty thoufand pounds flerling 5 3dly, That the four cantreds of land) which he had hitherto enjoyed as his own patrimony, and allo all the lands in Wales which the king and his army had conquered in the courfe of this war, fhould for ever after belong to the king and his heirs, excepting only the ifle of Anglefey, which the king contented to give to prince Lewellin, to be holden of the kin? and his
o
heirs by the yearly rent of 1000 marks, befides 5000 marks to be paid immediately as a fine for entering into poflcffion of it. And, if prince Lewellin died without heirs of his body, this iiland was to revert to the VOL. II. T king,
King Edward makes war upon Prince Lewelliu with i'uccds. The prince fues for, and obtains, peace from the king. A. D. t2?8. The condi tions of the peace.
t 138 I
ting, and remain in the poffeflion of him and his heirs for ever after. 4thly, That prince Lewellin fhould attend king Edward in England at the enfuing Chrtftmas and do homage to him for the faid ifknd of Angle- icy, which he was to hold of him. 5thly, That all the other land-owners in Wales ihould do homage for their lands to the king, except five barons in the neighbourhood of Snowdon, the high mountain in South Wales, who mould do homage for their lands to prince Lewellin > becanfe, he faidy he could not with propriety take upon him the title of Prince, unlefs he had fome barons under him who held their lands of him. But it was agreed that the homages of thefe five barons mould be Separated from the erown of England only during the life of prince Lewellin, and after his death fhould be made to the king of England and his heirs. 6thly, That he mould give ten hoftages for the performance of thefe articles, ythly, That the great men of Wales {hould bind them- lelves by an oath to compel prince Lewellin to obferve thefe articles, and to make war upon him for the king of England, if ever
he
• » » * • • * l "i
he mould break them, and, after being re quired by them to redrefs the breaches he ihould have made of them, mould refufe or neglect to do fo. Sthly, That he mould be reconciled to his brothers, whom he had treated with feverity. Thefe were Owen, his el deft brother, (the eldeft fon of prince Griffin, his father, who had died in the Tower of London,) and Roderick and David; •of whom Owen, the eldeft, had been many years a prifoner with his father Griffin in the Tower of London, and had, not long before this war, escaped from thence, and had after wards been apprehended by his brother Lew- ellin's order, and together with his brother Roderick, was at this time detained in prifon by him. The other brother, David, had fled, into England, and taken part with king Edward in this war againft Lewellin, and had done the king fuch aqceptable fervice in it by his valour and activity, that the king thought fit to reward him by a grant of the caftle of Denbigh with lands to the amount of a thoufand pounds a year, and gave him likewife in marriage the daughter of the earl of Derby, who had lately loft her former
huiband.
T 2 la
David, bro ther to prince Lewellin, having ierved king Edward in the late war agair.ft his brother Lew. elliri, is re warded 'by the king with a grant ot Den .* bighcallleand a marriage with an F.ag- li(h lady of dillin&ion.
Owen and Roderick,two other brorhers of Leweilin, \vho had been kept in prifon by him, are fet at liberty.
Pr. Lewellin himfelf, with tli£ king's confent, mar ries a daugh ter of Simon de Montfort, the late earl of Leiceiler.
Frefli troubles break out in Wales A.D. 1282.
nq 01
Hoftilities are begun againfl theEngliih by prince David in a treache rous manner.
.co;;
r 140 ]
In confequence of this pacification (which was made in the year 1278) prince Owen and prince Roderick were fet at liberty by their brother Lewellin ; and Lewellin mar ried, with king Edward's conient, a daughter of Simon de Montfort, the late earl of Leicester, to whom (be had been betrothed
in her father's life-time during; the alliance
. '. hu\vAn the laid carl and Lewellin in the
•-• .
time of the barons war: and the king and
o
queen, of England were prefent at the nuPtiaIs- ,noL:wJ.to ^«T
i , t r , r
This peace continued to be obierved for about four years, when irefh troubles broke out in Wales by the inftigation 'of prince David, who, notwithstanding the fidelity he had (hewn to king Eclward in the late war,
and the favours he had received from him
'
hi return, . now ungratefully ftirred up his brother, prince Lewellin, and the reft of the great men of Wales, to begin a new rebel lion againft king Edward. The hoftilities were begun by David himfelf, as an example and encouragement to, his countrymen, by fuddenly and treacheroufly laying. hands, on
Palm-
Palm -Sunday, on Roger de Clifford, an Engliih nobleman of great birth and emi nence, whom king Edward had appointed to the office of juftitiary of all Wales, tan- quam totius Wallite juflitiarlum. This great officer was made a prifoner by prince David j and fome knights, who wqre his attendants, and who, though unarmed, endeavoured to defend him againft prince David's party, w"ere flain in the fcuffle. After this the war was renewed between the Welch and Englim ; and for fome time with various iuccefs. But at laft: the .event was, that prince Lewellin was killed in a fudden attack made upon him unawares by John Giffard and Edmund, de Mortimer, two eminent Epgli.fli bafdns, at a time when he, was at -a diftance from his main army and had only, a fm.all guard to attend him; and, .his head was cutoff and fent immediately to, the king,, aftd.afterwards, by the king's order, let upon the ; Tower of London with t a crown 'of ivy on it: and David was taken a, live. ,by fome, of; -jUing. Edward's partifans, and, by the king's order, tried as a traitor, condemned, and executed, by drawing, hanging, and
quartering,
;bcA Mil ii
.jsaub
Pr. Lewellin is- flain- irr at fudden attack by two Eng- lifh barons.
zui'; "to r
;»3Ci-i
'
Prince David is taken pri foner, and tried and put to death by king Edward aj a traitpr.
And all Wales is intirely re duced to the king's obedi- «nci. A. D. 1284.
King Edward pafles the fa mous aci ior the regulation of Wales, called the Sta- t-urum
His gentle and judicious manner of proceeding on this occahon.
t 142 ]
quartering, according to the law of England for the punishment of high treafon : and all Wales, with all its ftrong places, was intirely reduced to the king's obedience, et totaWallia> cum omnibus caftris fuis.y fubatta eft rcgia volitntati. This was in the year 1284; and ia the fame year, (fays Thomas of Walfing- ham,}' the king-caufed the laws of England to be obferved in Wales, and appointed flidriffs for the execution of them, that' is, he made the famous ftatute we "have before fpoken of, which is called -trig Statutum Wdilia. You are not, however, to under- ftand by this that he inftantly aboliihed all the laws that had hitherto been obferved in Wales, and eftablimed the laws of England in their (lead ; for he proceeded in a much gentler and more judicious manner, and, firft, inquired from the moft able and know-^ ing men in Wales, what were the laws that had till then been obferved there, and then, after this information, permitted feveral of thofe laws to continue in force among them, and corrected only thofe that he mod dif- approved, and introduced the laws of Eng land upon thofe fubje&s in their ftead. For
examples
r '43 i
example ; by the Welch law a baftard might fucceed to his father's lands as well as a ion born in lawful wedlock ; and daughters could not inherit their father's lands even when there were no fons ; but the lands went over to the next male relations. Thefe two things king Edward changed; excluding baftards intirely from the inheritance of their father's lands, and admitting daughters to it in de fault of fons, according to the cuftom of England. But he permitted their cuftom of inheriting lands, by equal partition amongfi all the fons of the deceafed owner of them, to continue, though different from the law of England, which gives all the father's lands to the eldefl fon only, to the exclufion of all the other children. Nor was this Englidi law of inheritance by primogeniture introduced into Wales till 250 years after the reduction of it by king Edward the ift, when, in order to render its union with England more compleat, and alfo to avoid the inconveni ences which had been found to arife from the too great fubdivifions of lands by repeated partitions of them upon inheritance, king Henry the' 8th eftablifhed it in that country
by
by an aft of the Engliih parl&ment. Such was king Edward's temperate and prudent conduct on this occafion. Therefore, when Thomas of Walfingham and the other writers of the hiftory of king Ed ward the ift's reign, fay, that king Edward on this occafion intro duced the laws of England into Wales, they muft be underftood to mean only that he introduced fome of the laws of England into it, which he thought moft eflentially necef- fary for the peace and happinefs of the people, and that he took the whole admi- niftration of juftice into his own hands, ap pointing, not only a juftitiary of the country, (as his father, king Henry the 3d, had done before him,) but like wife meriffs in the fe- veral counties, by whofe means all the exe cutive power of the country was at his difpofal.
And thus I have given you a fummary account of what the old Englim hiftorians, and particularly Matthew Paris, (who lived in the reign of king Henry the 3d, and died in the year 1259) relate concerning the con nection between England and Wales from,
the
[ '4* ]
the time of king Wiiliam the Conqueror to the final reduction of Wales by king Edward the i ft, and the paffing of the Statutunt Wallitf in the year 1284. You will now judge for yourfelf whether Wales was, or was not, in a ftate of feudal dependance on the crown of England during this period, and particularly in the reign of king Henry the 3d, the immediate predeceflbr of king Edward.
FRENCHMAN.
I am much obliged to you for this account of the dependance of Wales upon England during that antient period, which, though neceffarily of fome length, I have not thought in any decree tedious. For it has enabled
3 r . r . refultmg from
me to form a clear and poiitive opinion, that the foregoing the fuppofition <c that Wales had been a fief Wales? of the crown of England," was not a fiction of king Edward, invented for purpofes of policy, as Lord Mansfield conceives it to have been, but a certain and indifputable truth, or, in other words, that the princes, and other great land-holders, of Wales were bound to do homage for their lands to ths VOL. II. U kings
Of the manner imvhich Wales was brought into a (late of feudal fubjec- tion to the crown of£ng- land.
kings of England, and ufually did do homage for them, in all the reigns from that of the Conquerour to that of king Edward the ift, (before his laft redu&ion of them,) inclu- fively. But it feems probable to me from this account, that this obligation of doing homage for their lands arofe at firft, in the time of king William the Conquerour, or, perhaps, before, from their fear of the power of England, and was not the confequence of their having received their lands originally from the kings of England by grants accom panied with this obligation of doing homage, and performing other feudal duties, to the grantors and their heirs, according to the more cuftomary method of creating feudal fubordinations throughout Europe. And this, I imagine, may have induced Lord Mansfield and the learned Mr. Barrington, and perhaps other learned men, to confider Wales as not having been a fief of the crown of England. But they mould have recollected that a feudal fubjeclion of one country to another, or rather of the poffefTor of one country to the poflefTor of another, may as well arife after a former independency of the one on the other, by a
compact
"compact between the parties for that purpofe, as be originally created before one of the par ties is put into pofleffion of the country which he holds of the other party. And many in- ftances may be found of countries which have in this manner become dependent on other countries by a feudal fubordination to them, after having been antecedently independent of them. And this feems to have been the cafe with Wales.
ENGLISHMAN.
You are certainly right in your conception of the manner in which Wales became de pendant upon the crown of England. It muft have been by acls of fubmiffion of the Welch princes, and other land-holders, to the kings of England, after a prior ftate of independency on them ; becaufe the Welch were the oldeft inhabitants of the illand, and pofTeffed both Wales and England before the Saxons, or Englim, arrived in ths ifhnd and creeled thofe feven kingdoms in it, which, after their union under Egbert, king of the Weft Saxons, were called £;;?•- or tbc kingdom cf England, And it
U 2 13
E '48 ]
is alfo pretty certain that thofe ads of fub- miffion of the Welch princes, and other land-holders, to the kings of England, where-*- by they confented to do homage to them for their lands, were the effect of their fear of the power of the kings of England. But, when thefe acts were done, (let the motive that gave rife to them be what it would,) the country of Wales was as truly in a ftate of feudal fubjeclion to the kings of England, as if it had been a mere uninhabited country, to which no perfon had any claim, and the kings of England had, firfr, taken poffeffion of it themfelves, and afterwards granted it cut in parcels to their friends and favourites to be holden of themfelves and their heirs and fucceflbrs, being kings of England, by homage and military fervice, And we have feen by the pafTages above recited from the old writers of the Englifh hiftory, that Wales was in this condition of feudal fub- jeclion to the kings of England long before the reign of Edward the ifr. It ought not therefore to be confidered as an independant country, which king Edward invaded and conquered for the firft time, without any prior claims of fuperiority over it, as his pre-.
[ J49 ]
fent Majefty conquered the ifland of Grenada in the late war : and confequently it can afford no argument one way or the other, concerning the prerogative of the king of England, or Great-Britain, with refpect to the government of conquered and ceded countries.
But in truth the Statutum Waliitz does not appear to have been made by king Edward's fingle authority, but by his authority and that of his barons, or great men, conjointly. For we find thefe words in the pre-amble of it j Nos it ague . . . "oolentes pr<zdiftam t err am no ft ram Snaudun, et alias terras noftras in fartibus illis, ficut et cateras ditioni noftrtz J&pfetfas, . . . fub debito regimine gubernari, €t incolas terrarum illarum . . . certis legibus ct confuetudinibus fub tranquillitate et pace nojlrd irattari, leges et confuetudines partium illarum bcMcnus ufitatas cor am ncbis et proceribus regni noftri fecimus recitari 5 quibus diligent er an- ditis, et plenius ititelleffis, qua f dam ipfarum, de confilio procerum pr<zdiclorwn> delevimus, quafJam permifimus, et quafdam correximus, (t ctiam qua/dam alias adjiciendas et Jlatuendas, , ct eas de ccctcro in fern's nofiris.
in
The Statutum
made by the fingle autho rity of king Edward the ift, but with the ad vice and concurrence of his barons.
t '5° ]
in partibus illis perpetud firmltate teneri et cbfervari volumus, in forma fubfcripta*— By thefe words, cor am nobis et proceribus regni noflri, and de confilio procerum prce- dittorum^ it is plain that the proceres regni, the great men, or barons, of the realm, concurred with king Edward in enacting this ftatute : and thefe barons were the only parliament then in being, the knights, citi zens, and burgefles, who compofe the Houfe of Commons, not making at that time, nor till about eleven years after, a part of the Englifh legiflature. So that, if Wales had hitherto been perfectly independent of the crown of England, and now fpr the firft time reduced to a fubjecljon to it by conqueft, (as Lord Mansfield had erroneoufly con ceived,) yet this inftance of king Edward's legislation would not have afforded a prece dent in favour of the abfolute legiflative End of the m- power of the Crown alone over a conquered
rjuiryconcern-
ingthecondi- country. And fo we may take our leave of and" the leg"' tne hiftory of Wales with refpedl to the
lame autho- prefcnt queftion. Tity exercned r over it by K.
****** FRENCH-
[ '5' 1
FRENCHMAN.
But I think you mentioned fome other countries which Lord Mansfield cited as countries which had been conquered by the crown of England, and in which the kings of England had exercifed alegiilative autho rity by virtue of their prerogative, and without the concurrence of the parliament. Pray, what countries were thofe ? and what kind of [authority have the kings of England exercifed in the government of them?
ENGLISHMAN.
The places mentioned by Lord Mansfield as inftances of the exercife of this fuppofed legiflative power of the Crown, are the town of Berwick upon Tweed, the town of Calais on the northern coaft of France, the dutchy of Guienne or Gafcony, in France, the pro vince of New-York in North- America, and the town of Gibraltar and ifland of Minorca, which two laft places, before the conqueft of them by the Britim arms in the courfe of queen Ann's war, were a part of the mo narchy
Other place* mentioned by Ld. Mansfuld as inftances of the excrcife of the fole iegii- lative power or the
I s2
concernng
crd Manf- narchy of Spain. Lord Mansfield's words
field's words .
concerning Berwick upon Tweed are thefe. " Berwick, after the conqueft of it, was governed by charters from the Crown, till the reign of James the ift, without inter- pofition of parliament."
A remark up on them.
FRENCHMAN.
Is that all that was faid about Berwick, to prove that the king had a right of making laws for its inhabitants by his prerogative only, and without the concurrence of par liament ? Surely this can never be thought conclufive. For, if it was, it would prove too much j — it would prove that the king had the power of making laws without the concurrence of parliament for the provinces of the MaiTachufets Bay, and Connecticut, and Rhode-Ifland, and Penfylvania, to all which his predeceflbrs have given charters without the interpofition of parliament, as well as to Berwick upon Tweed ; and he would alfo have this power in all the cities and towns in England itfelf which have charters, thofe charters having all been given them, (as I have always heard,) by the kings
alone
r 153 ] "
alone without any interpofition of parliament. And yet in all thefe cafes it is not pretended that the king alone is podefTed of the legifla- tive authority.
ENGLISHMAN.
I intirely agree with you in thinking the argument for the king's legiflative authority derived from the cafe of Berwick upon Tweed, extreamly inconclufive : and for the reafon you have given. The power of giving charters has always been confidered as a part of the royal prerogative of the kings mof England j but it has never been fuppofed to involve in it the power of making laws and < impofing taxes on the people to whom they have been granted. And J have therefore been as much furprized as you can be, at its having been alledged on this occafion for fuch a purpofe. And, further, in the fecond Theprivileges
r I • r A of the town of
year of the reign of king James the lit, Berwick upon
.1 ... .1 r T J f Tweed were
that is, in the year of our Lord 1604, or confirmed by
17 1 years ago, there was an act of parlia- f
' J ° > liament in the
ment for the confirmation of even a royal year 1604. charter, which the king had a little before granted by his letters patent to the mayor, * VOL. II. X bailiffs,
[ '54 ]
bailiffs, and burgefTes of Berwick, and of
the franchifes, liberties, and cuftoms of the
ICC
therefrom .
An inference borough. So that it appears that even
that king, (who was remarkably jealous arid tenacious of the prerogative of the crown,) did not conceive himfelf to be poffeiTed of a compleat legiflative authority over the people of Berwick by virtue of the con quell of it by his predecefTors on the throne of England : becaufe, if toe had conceived fo, he would not eafiiy have been prevailed upon to divert himfelf of a part of that authority by exercifing it in conjunction with the Englifh parliament. This inftance there fore, of Berwick upon Tweed is of very little weight with refpecl to the prefsnt inquiry.
FRENCHMAN.
Ofthedutchy f jie next inftances you mentioned, as
ofGuiennCjOr f
Gaicony, and having been cited by Lord Mansfield in fup-
the town of -, . . . .~ . . r .
Calais in port of this legiflative authority or the crown, were, if I remember right, the town of Calais in France, and the dutchy of Guienne, or Gafcony, in the fame country. Pray, what did Lord Mansfield fay concerning thefe places ?
ENG-
ENGLISHMAN.
His words upon thefe inftances were nearly The words of as follows. t£ Whatever changes were made concerning in the laws of Gafcony, or Guienne, and them* Calais, muft have been under the king's authority. For, if they had been made by a.c~t of parliament, the acts would have been extant : becaufe they were conquered in the reign of king Edward the third ; and all the acts from that reign to the prefent time aro extant. And in fome ads of parliament there a.re commercial regulations relative tQ each of the conquefts which I have named : but there are none that make any change in, their coniiitution and laws.
Yet, as to Calais, there was a great change made in their conftitution. For they were fummoned by writ to fend burgefTes to the Englifh parliament. And, as this was not done by act of parliament, it muft have been done by the fole authority of the king." This is all that Lord Mansfield faid concern ing Gafcony and Calais,
X 2 FRENCH-
field's words.
Gafcony was
not acquired
by the kings
of England by
conqueft, but
riagehof king
Henry the zd
with Eleanor
the heirefs of
FRENCHMAN.
h 'IS reallY very furprizing that that learned jord (hould have fpoken in this manner; fmce, if I remember any thing of the hiftory of thofe times, the fads were quite different from his ftate of them. Neither Gafcony nor Calais were pofTefTed by the kings of England as conquered countries, or by the right of war and conqueft, but by the peace- ful ^ of marriage and inheritance. This js more efpecially true of Gafcony, orGuienne.
J . . J' .
r or that was acquired by the marriage or
Henry earl °f AnJOU and PoitOU and dukcof
Normandy, (who was afterwards kin? of
Jt fa
England by the title of Henry the fecond,) with Eleanor of Guienne, the heirefs of that great province, after me had been divorced from the king of France. And it defcended to the faid Henry's pofterity by the faid Eleanor, in her right, and was enjoyed by them by that title only for many generations, even till the latter part of the reign of king Henry the 6th, when the Englifh loft all their pofleffions in France of every kind, ex^ cept Calais and a fmall territory adjoining to it. The right of conqueft was never thought of
during
during all that time as the ground of the poffeffion of this province by the kings of England : for no conteft had ever arifen about it ; but the kings of England had been always allowed to take and keep peaceable poflefiion of it by virtue of their hereditary title from the faid Eleanor. Whatever, there fore, was done by the kings of England who poffefTed this province, (that is, by king Henry the 2d and his fucceflbrs down to king Henry the 6th inclufively,) in the way of govern ment, or legiflation, in this province, or dutchy, of Guienne, or Gafcony, has no more to do with their authority over conquered countries by virtue of their royal prerogative as kings of England, than the ads done by the kings of England of the prefent royal family in their German dominions of Hanover and Zell in their capacity of dukes of thofe countries ; which no one, I prefume, would ever think of alledging as proofs of the king's authority over conquered countries. And therefore this inftance of Guienne., or Gaf cony, ought not, as I conceive, to have been mentioned on the fubjeft we are now con- {idering.
As
( '53 )
was a As to Calais indeed, it is true that it was
part of king
Edxvard the conquered by the arms of England in the
reiSnof kin§ Edward the 3d> asLordMank
and not a part fe^ afferts. But it is alfo true, that it was
or the domi
nions of the not conquered for England, or by virtue of
tend™ "S" any right inherent in the crown of England.
It was claimed and feized on by the faid king
Edward, as a part of the kingdom of France ;
the whole of which that king claimed as his
right by inheritance through his mother Ifabel,
who was a daughter of one of the kings of
France. This was a right that was no way
connected with his pofleffion of the crown of
England, but which would equally have be
longed to him if he had not been king of
England, as might eafily have happened on
the following fuppofition. Let us fuppole
that Edward the 2d, king of England, had
married two wives ; and that Ifabel of France
had been his fecond wife ; and that he had
had fons by his firft wife, as well as his fon»
Edward (who was afterwards king of Eng
land by the title of Edward the 3^) by Label*
his fecond wife. In fuch a cafe it is evident
that king Edward the 2d's eldefl fon by his
•firft wife would have fucccedcd to the crowa
of
t '59 ]
bf England, and Edward, his ekieft fon by
his fecond wife Ifabel, would have had the
<• j '
right of his mother to the crown of France, though he would not have been king of England : which (hews that the title of king Edward the gd to the crown of France was totally unconnected with his right to the crown of England. Confequently, in what ever manner he governed the kingdom of France, his maternal inheritance, or the town of Calais, (which was, if I remember right, the only part of that inheritance which he was able to keep for any length of time,) it had nothing to do with the right, or pre rogative, of a king of England over a mere conquered country, to which the king, who mould have conquered it, had no other claim at all but that of conquefL
ENGLISHMAN.
I intirely agree with you in thinking thefe two inftances of Gafcony and Calais quite foreign to the prefent queftion ; and for the reafons you have given j they having been pofTeffed by the kings of England by right
of
[ 160 ]
of marriage and inheritance, and not by right of Of the privi- conquefc And, as to what Ld. Mansfield adds,
lege given to
Calais to fend that, when the burgefTes of Calais were im-
jnembers to . .. . . . _, ....
the Englifh powered.to fend members to the Englim par- parliament. iiamcnt, this privilege was given them by the king alone, and not by act of parliament, it feems to me to afford no fort of argument for fuppofing (as Ld. Mansfield feems to do) that, before this privilege was grafted them, they had been governed by the authority of the Crown alone without the concurrence of parliament j becaufe, if this reafoning were allowed, it would prove that many places in England itfelf had been fubjedt to the fole legiflative authority of the Crown till the reigns of king Edward the cth, queen Mary, queen Elizabeth, and king James the ift^ fince it is well known that thofe fovereigns did, of their own authority, and without the interpofition of parliament, authorize thofe places to fend members to the Englifh par liament j though, (happily for the nation,) the power of granting fuch a privilege to other boroughs, is now no longer underftood to be a part of the royal prerogative. But indeed, as you have juftly obferved, if king
Edward
t 161 ]
Edward the 3d and his fuccefTors did govern Calais by their own authority only, and without the concurrence of parliament, until they permitted them to fend members to the Englim parliament, (and whether they did or not, is more than Lord Mansfield has told us, and more than I can tell, not hav ing particularly inquired into the matter j) it would only prove that he governed the kingdom of France, his maternal inheritance, that is, that little part of it of which he kept pofleffion, in a different manner from the kingdom of England, his paternal inheri tance, wkh which the former kingdom had no connection but that of accidentally being fubjec~t to the fame king.
But indeed the inftance of Calais feems to me rather to furnim a ground for a conjecture that is adverfe to the doctrine of the fole leghlative authority of the kings of England over countries obtained by conqueft. What I mean is this. Calais was poileffed by the kings of England by virtue of king Edward the 3d's hereditary claim to the whole king dom of France. From the reign of king
VOL. II. Y Edward
The conduct of the kings o£
England with refpecl to Ca lais is rather advene to the doftrineof the fole legislative power of the Crown over conquered countries.
[' 162 ]
Edward the 3d to that of king Edward the 4th the kings of England endeavoured to make good this claim by force of arms. And, even for fome years after Edward the 4th's reign, the memory of the wars in France, (which had taken their rife from this claim,) was frefli in the minds of the Englifli nation, and the inclination to renew thofe wars, and again endeavour to eftablifh that claim, was ftill alive. At laft this de- fign feems to have been quite laid afide, though the claim itfelf has never been formally given up even to the prefent day j but our kings ftill ftyle themfelves kings of France. The defign of recovering the kingdom of France by force of arms feems, however, to have at laft been laid ailde, but not before the reign of king Henry the 8th, who, we muft obferve, was the very king that gave the people of Calais the privilege of fending members to the English parlia ment. So that juft at the time when Calais might feem to be no longer pofleffed by the kings of England by virtue of their heredi tary claim to the crown of France, that claim being no longer purfued; — and confequently
juft
juft at the time when Calais might appear to be retained by the kings of England as a mere appendage of the crown of England, without regard to the former hereditary
title j king Henry the 8th, (a prince who
was by no means difpofed to leflen his own royal prerogative,) thought fit to incorporate Calais with the kingdom of England, by impowering its inhabitants to fend members to the Englifh parliament, and confequently to permit the parliament to partake with him in *vC power he had before enjoyed alone (if he did in truth enjoy the faid power) of making laws and impofing taxes on them. From this proceeding I fliould be inclined to draw this conclufion, that, whenever a country becomes an appendage to the crown of England, fo as to be pofTeiTed by the kings of England as kings of England, or merely becaufe they are kings of England, the parliament of England ought to partici pate with the king in the exercife of the legiflative authority over fuch country. But I lay no great ftrefs on this argument, which is certainly doubtful and conjectural. All I pretend to be clear in with refpect to this Y 2 inftancc
[ _i64 J
inftance of Calais, is, that it affords no kind of ground for any inference in favour of the fole legiflation of the crown over conquered countries.
FRENCHMAN.
9f thrvTpro" I think you mentioned New- York amongft
vmceofNew- *
York'mNorth- the inftances which Lord Mansfield produced as proofs of the legiflative authority of the crown alone, without the concurrence of parliament, over countries acquired by con- queft. Pray, what did his lordiliip fay ,with refpect to this inftance ? For, if the province of New-York was confidered as a conquered country, and was, upon that account, go verned by the king's tingle authority for any confiderable length of time, without the interpofition of the Engliih parliament or an affembly of its own inhabitants, I fhould efteem it to be a much more refpedable precedent in favour of the royal prerogative in queftion, than either Gafcony, or Calais, or Berwick, or even than Ireland and Wales, if thofe countries and places had really been, (what we have fufficiently feen they were not,) fair proofs of the exigence of (uch a.
legiflative
[ 165 ]
kgiflative power in the crown in former times : becaufe, as New York is a part of America, and was acquired by the crown of England but little above a hundred years ago, it bears a nearer refemblance to the cafe of the ifland of Grenada, and the conftitution of the Englifh government at the time it was acquired by the crown of England (which, as I have heard, was in the reign of king Charles the fecond,) bears a greater refemblance to the conftitution of England at this day, than is to be found in the cafe of thofe old examples; and confequently there would be a better ground for inferring from the exercife of fuch a legiilative autho rity by the crown alone over the faid pro vince, after king Charles's acquifition of it, a continuance of the fame authority over the countries that have been lately acquired by the crown by conqueft (fuch as Canada and Grenada,) until his Majefty thought fit to dived: himfelf of it by his proclamation of the 7th of October, 1763. I am therefore very defirous of knowing what Lord Manf- field faid concerning this important inftance of New- York.
ENG-
i66
ENGLISHMAN.
The cafe of New- York would indeed be a very important precedent, if it were true that that province had been a conquered country, and had been confidered as fuch by king Charles the zd, who difporTerTed the Dutch commonwealth of it, and that, after having conquered it from the Dutch, king Charles had enjoyed and exercifed a perma nent legislative authority over it, without the interpofition of either the Englim parliament, or an affembly of the freeholders of the pro vince itfelf. But this was far from being the cafe, as you will prefently perceive, when you have heard a fhort account of the taking of New- York from the Dutch, and the manner in which it was governed for the firft twenty, or five and twenty, years after that event. As to what Lord Mansfield faid upon the fubject, it was contained in thefc
Lord Manf. few words. " After the conqueft of New- field's \vords ...
York, in which molt or the old Dutch
" inhabitants remained, king Charles the 2d " changed their conftitution and political " form of government, and granted it to the
" duke
concerningthe faid province.
*c duke of York, to hold from his crown " under all the regulations contained in his «< letters patent."
FRENCHMAN.
I perceive by thefe words, that Lord Manf- An inquiry field fuppofes New- York to have been a n<>, New- conquered country, and to have been con- °rs *
fidered as fuch, and grounds his argument country
in favour of the legiflative authority of the
crown upon that circumftance. And, to
confefs the truth, I had always conceived
the fact to be fo j that is, that New- York
had been originally a Dutch fettlement, and
had been conquered from that common
wealth by the arms of England in the reign
of king Charles the 2d, and had been always
confidered by the crown of England in the
light of a conquered country, and as belong
ing to it by no other title whatfoever. I
(hould therefore be glad to be fet right, if this
notion of the matter is a miftaken one.
ENG-
[ i68 ]
This province was not confi dered by king Charles the fecond as a conquered country, but ns a part of the more antient Englifh colo ny of Nevv- England.
ENGLISHMAN.
In the view of an impartial hiftorian and philofopher the firft part of what you have conceived upon this fubject may, perhaps, be true ; that is, that New- York was really at firft a Dutch fettlement, juftly belonging to the Dutch commonwealth, till it was con quered from them by the arms of England in the year 1 664 in the beginning of the firft Dutch war in the reign of king Charles the fecond 5 though even this is not abfolutely certain. But it is not true that king Charks the fecond, or the Englifh nation in general, confidered the matter in that light. For it is certain, on the contrary, that they confidered the provinces of New- York and New-Jerfey (which then were both poflefled by the Dutch, and known by the name of the New Nether lands,) as a part of New-England, and as having always belonged to the crown of England, ever fince the planting of New- England, as much as the red: of New Eng land, in which the Englifh had actually made fettlements. And they accordingly confidered the Dutch inhabitants of that country as
having
t 169 ]
hiving fettled themfelves uponEnglifh ground -without authority and contrary to juftice, and as being therefore juftly liable to be expelled from their fettlements whenever the Englifh government fhould think proper, unlefs they would furrender themfelves to the Englifh government and confider themfelves as fub- jects of England. This opinion had been entertained in England and in the Englifh colonies in New-England before the reftora- tion of king Charles the fecond j and Richard Cromwell, (who had fucceeded his father ^x Oliver as protector of the commonwealth of England,) had even taken fome fteps towards accompliming a defign that had been entered into for the reduction of that country to the obedience of the Englifh government. How far thefe pretenfions of the Englifh were well founded, I will not pretend to determine. But that thefe were their pretenfions, and that king Charles the fecond claimed the country upon that ground, and upon that ground only, will appear beyond a doubt from the following extract of a letter, which colonel Nicholls, (the commander of the armament which king Charles fent out, in VOL. II. Z the
r
the fummer of the' year 1664, to recover the country from the hands of the Dutch com monwealth,) lent the Dutch governours of the country (who refided in the ifland of New- York, then called Manhattans',) ' i$ anfwer to a demand which they had made to him of the reafon of his hofUle approach towards them; which had very naturally ieemed flrange to them, as the war between England and Holland was not yet begun.
-:.feOT/'iJ ton^
Colonel Ni- *« To the Honourable the Governours and to thVltach " Chief Council at the Manhattan'^'
governours of
the faid pro- tf Rj ^ WQrth g;
vince, requir- o /
fufrendwUto " T ^ece^vec^ a letter ty fome worthy .perfbnu king Charles « intrufted by you, bearing date the l?-of
the zd. ' J 3°
A.D. 1664. <f Au-guft, dcfirins: to know the intent of
O ' O
" the approach of the Ehglifli frigates: in tc return of which, I think it fit to let you " know, that his Majefty of Great-Britain, Cf iv/jofe right and title to tbefc parts of Ame- tf rlca is unqneftionabk, well knowing how <c much it derogates from his crown and
o
" dignity to iufter any foreigners, (how ne.ir cc foever they be allied} to ufurpa dominion,
" and, without his Majefty's royal confent,
" to inhabit in thefe.or any other of his
" Majefty's territories, hath commanded -me,
<c in his name, to require a furrendeF of all
" fuch forts, towns, or places of ftre'ngth,
<c which are now pofleffed by the Dutch
" under your commands. And, in his Ma-
" je'fty's name, I do demand the town fituate
<c on- the- 'ifland 'commonly known by the
<c name of Manbattoes,. with all the forts
<c thereunto belonging, to be rendered unto
" his Majefty's obedience and protection-,
<c into my hands, &c."
The city fituated on the ifland of Man- or Manhattans, was then called AmJlerdamj and fmce that time N&zi- Tork.
The faid city and the country belonging to it The faid
r j i i i TA i country was
were lurrendered by the Dutch governours to accordingly coloricl Nichols foon after this letter of fum-, cd!?®S rnons.
You will allow, I believej that it is plain Conclufion' from the foregoing letter that king Charles fa™£* faid the fecond did not confider this country as lettcrand r"f-
/ render.
the property of the Dutch commonwealth Z a and
and an object of conqueft, properly fo called, notwithftanding the great number of Dutch inhabitants who continued in it, but as a part of his own dominions, of which the Dutch had furreptitioufly and unjuftly taken pof- feffion, and from which it was therefore both juft and necefTary to expel them. And, accordingly, he had, before this expedition of colonel Nichols againft this country, (which \vas deftined to recover the pofleffion of it to the crown of England) made a grant of it, by letters patent under the great feal of England, to his brother the duke of York, (who was afterwards king of England by the title of James the 2d,) as being a tract of land that already belonged to him, before ever colonel Nichols failed from England. Surely, after this conduct of the crown with refpect to this province, it can never be confidered as a conquered country to any legal view or furpcfe, and confequently cannot juftly be alledged as an example, or precedent, of the prerogative of the crown of England with refpect to conquered countries.
FRENCH^
£ X
[ 173 I
FRENCHMAN.
It certainly cannot : and, whatever was the manner in which king Charles governed it after he had got pofTefiion of it,— whether he made laws for it with, or without, the con currence of his parliament, or an affembly of the people ; — it can have no relation to the queftion we are now difcuffing concern ing the prerogative of the crown with refpedt to conquered countries.. I therefore do not wifh to* know the further hiftory of this pro vince with any view to throw light upon that queftion. But yet I mould be glad to be informed of it on another account; and that is, to fee how far the kings of England have at any time affumed and exercifed a legifla- tive authority over any of the out-lying do minions of the crown, that have been fettled, or planted, by colonies from England -3 which is certainly the true legal view in which New- York ought to be confidered. For I think 1 have fometimes been told, that the kings of England had, upon fome occalions, pre tended to a greater degree of legiflative power over the remote and diftant dominions
of
Of the legifl.a- tive authority claimed by the crown overco- lonies planted by Engiifh-
[ 174 1
of the crown, though fettled by colonies from England;- than over the kingdom of England itielf.- I ihould therefore be glad to know, in what manner : the province of New-York was governed, after it had been furrendered to the crown of England upon the invalion of .colonel Nichols.
• .
The Crown has formerly claimed a Oompleat le- giflative au thority over all the Engiifh colonies inthe \vorld.
King Charles the lit ap pointed com- jniiTioners to exercife this legiflative au thority over them all, in theyear 1636.
•
. I believe . tba't fome fetch pnetenfions, as you fpeak'ofv to' ;a higher degree of legiflative power over diftant.. colonies : of Englishmen than over the' inhabitants, of England itielf, may have, been made by the crown in former reigns, and more efpccialiy in the reigns of the Stuarts.: And indeed there is extant a famous inilrumeht of this kind in the rei^n
o
of king Charles the id, by which that king appointed commifiioners to make laws and ordinances for the government of all the Eng-lim colonies all over the world. This inltrument was palled under. the great feal of England in the year 1636, which was the time of the moil: arbitrary government of that mifguided monarch. It appointed twelve
perlbns
I 175
peffons of note, (who were, all of them, members of the king's privy council, and moft of them v great '-officers of -ftate,).to be the king's commlffioners for the following general purpofe, to wit, ad -regfjn?n et tut a- fion siven to
,. , . , . • • *" the faid com-
men dictarumcolmiarum-deduaarwn, vet qua miflioners.
gentis Anglicance in pofterum-fuerint in bus hujufmodi dedutttf', and gave them a power of veftablifliing leges, conjlitutione^ et ordinatio^ lies, feu ad publicum cokniaruM~illarumftatum> feu ad privatam fingulorum utilitatem perti- iienteSy eorumque- terras, bona> debit "a , et Juc- cejjionem in iifdem' parti bus cQjicermntes ; - - ac quallter invicem et ergo, princfpes exteros eorumque populum$-nQs ctiam et fubditos Koftros tarn in partibus ex fens quibufcunqiie quam in marij in paries illas, roel retro, navig-atidoj fe gerant ; ---- vekq&e ad juftentationem ckri, exercentis regimen vel cur am animarum popuK in part i bus illisjleg€ntist congmas pert idles 'dn dedmis^ oblationibus, Mliifque' prevent i bus,' de- fignando, JpeEiant >—~-juxta fanas- dtfcrcticncs fuas, et babito confilio duorum vet- trium^ epif- coporum (quos ad Je convosandos duxerml necejfarios) in ecclefiaflicis\ — et-dero pottioim condmdi, fackndi, et-'- fdcndi;-- -•
ac'
[ 176 J
ac in feguftt, covfiitutionvm, ef trdinatlcnum illarum violatores pcenas et wuffias, itnpofitio- nemt incarcerationemy et aliam quamlibet co- ertionem* etiam, (ft oporteat, et deliSll qualitas cxegerifj per membri •vel vit.te privaticnem, infligendas providere -3 &c. Here you fee the crown undertook to delegate to its commif- fioners a compleat legislative power over all
Powers dele- the Englifti colonies in America. For it was
gated by the ° "
faid commir- a power or making laws and ordinances re lating either to the publick condition of thofe colonies or to the private advantage of the individuals who compofed them ; ---- and to the behaviour of the colonies one to another, and to foreign ftates j ---- and to their be haviour towards the king and his other fub- jecls, either in foreign countries, or on the high feas, in going to, or coming from, their fettlements j ---- and to the maintenance of the clergy who exercife the cure of fouls in the faid fettlements, by ordering the in habitants of thofe colonies to make them reafonable allowances of tythes, or offerings, or fome other competent revenue ; — it was a power of making Jaws upon all thefe fub- jcdls, and of inflicting fuch punifTiments as
they
[ '77 1
they fliould think fit (not excepting even the lofs of life or limb, in cafes where they fliould judge it neceflary,) on thofe who fliould difobey the faid laws and ordinances : which is as large and general a legiflative power as can well be conceived* The next branch of the commiffion gives the com- miffioners a power to place and difplace the governours of the American colonies at their difcretion, and to call them to account for their mifconduct in their government, and to punifli them for the fame cither by fines, or mulcts, to be levied upon their property in the colonies of which they have been governours, or by removing them from their governments, or by other methods according to the degree of their guilt, vel nliter^ fecim- dum qu-antitatem delifti, caftigare. It alfo gives them a power to appoint judges in all forts of caufes, and of creeling courts of juftice of ail kinds, for the determination of civil and criminal matters, and for the de- cifion of ecclefiafticai caufes ; and of ap^- pointing the modes of proceeding in the faid courts. And then follows a provifoe, which crdains that the laws and ordinances which
VOL. II. A a thefe ^id commif-
fton.
t '78 1
thcfe commiflioners fhall make in the faid colonies by virtue of the authority thereby given them, mall not take effeft till they have received the king's own afTent in writ ing, teftified at leaft under the royal fignet, if not under the great, or privy, feal ; but which declares that, after they have ib re ceived the faid royal aflent, they fliall have the full force of laws, and be obeyed by ail the perfons whom they concern. This pro- vifoe is exprefled in thefe words. Provi/o tatnen, quodlegesy ordinationes, et conjlitutiones hnjufmodi execution! non mandentur quou/que ajjenfus ntfier eifdem adhibeatur regius infcrip- tis jubfignetto nojlro fignath ad minus. Et bujufaodi affenju adhibito, eifque publice pro- mulgatis in provinciis in quibusfmt exequenda, leges, ordinationesy et con/litutiojies illas pie- narie juris firmitatem adipifci, et ab omnibus t quorum interejje poterit, inviolabiliter obfer- vari, "oolumus et mandamus. The remaining part of the commiffion gives the commiflion ers a power to hear and determine complaints againft particular colonies, or the governours of them, and difputes between colony and colony concerning encroachments on each
other's
other's territories, or other injuries, and, after having heard fuch complaints, to order either the governours of any of the colonies, or the whole colonies themfelves, to come back to England or to remove to fuch other places as the faid commiffioners fhall allot to them for their habitation : and laftly, to infpecl and examine all the charters which the king, or any of his predeceflbrs, may have granted to any of the faid Englifh colonies; and, if they fhall find either that they have been furreptitioufly or unduly obtained, or that the privileges granted by them are prejudicial to the king and the rights of his crown, or to foreign princes, to revoke and annull them.
... i •
Thefe were the contents of this famous ^ remark ct*
the a!orc aid.
commiflion of king Charles the ift, by which, we plainly fee his notions of colony-govern ment. But, I prefume, he was as much rniftaken in thefe notions as in his concep tions of the rights of his crown over his fubjecls in England itfelf, where his mil- government was attended with fuch fatal confequences. So that nothing ought to be A a 2 inferred!
[ jSo ]
inferred from his opinions, or practices, in this bad part of his reign (when he governed England itfelf without a parliament,) con cerning the juft and legal prerogatives of the crown of England even at that time, and much lefs concerning thofe which . at this day, when the liberties of the people are both better known and afcertained, and alfo extended further, and more firmly cita- blifhed, than they were in the reign of that king.
\vas
Names of the T^ perfons to whom the aforeiaid com-
perfons to
vhomthefaid million was granted were thefe ; Dr. William ""grtnted. Laud, the cruel and mifchief-making arch- bimop of Canterbury, who was the advifer of moft of the unhappy meafures that oc- cafioned the civil war that broke out a, -few years after between the king and parliament ^ the lord Coventry, lord keeper of the great feal j the archbifhop of York \ Dr. William Juxpn, the bifhop of London, who was at that time lord treafurer j Henry Montague, earl of Man- chefter, the keeper of the privy feal; Thomas Howard, earl of Arundel and Surrey, the earl-marihall of England ; Edward Pierpoint, earl of Dorchefter, chamberlain to the queen ;
Sir
Sir Francis Cottington, lord Cottington, chan cellor and under-treafurer of the Exchequer, and mailer of the court of Wards and Live ries ; Sir Thomas Edmonds, knight, the treafurer of the king's houfliold ; Sir Henry Vane, (the elder,), knight, the comptroller of the king's houfhold ; and Sir John Coke, knight, and Sir Francis Windebank, knight, the king's two principal fecretaries of ftate. Any five, or more, of them might execute the powers of the commiffion. This mode of governine: the colonies continued about
O O
fix or feven years, that is, till the enfuing civil war, which begun in the year 1642. In the following year 1 643 the parliament at Weftminfter, who conducted the war American co.
• n i • ^i i n Icnies during
againit king Charles tne i It, took upon the civil war. them to fuperfede this commiffion, and ap pointed, by one of their ordinances, (made without the king's concurrence) a committee of perfons of their own choice for regulat ing the plantations, and made Robert Rich, earl of Warwick, who acted as admiral of the Englilh nation under the authority of the par liament, the goyernour in chief of them all; they confidering the plantations as a proper appendage to the marine department. And
[ 1*2 ]
by this committee the plantations feem to crn- }iavc becn governed till the year i6co,
mer.t cf them ° J
in the ume of when England was governed under the form
the common- r • \ • < • i i •
wealth of or a commonwealth, without either king or England. houfe of lords, by a remnant of that famous houfc of commons which h<id made war againft the king. The only civil authority then in being in England was verted in the laid remnant of the houfe of commons, (which was then called the Parliament of the CommcJKi'ealtk of England, and poiTelled the whole legillative authority of the ibtej) and in a council of ftate, appointed by the laid parliament, who were entrufted with all the executive power. And in this year, 1 650, an act was palled by the faid repub lican parliament, which veiled the govern ment of the plantations, in a great degree, in the faid council of (late. What further changes happened in the government during the ufurpation of Oliver Cromwell and his fon Richard, (who were called Protf&rs of the commonwealth) and the lublequent year of anarchy and confuiicn3 before the return of king Charles the 2d in 1660, I do not exactly know, nor think it material to in^
* *
quire.
t 183 ]
quire. But after the faid return, (which is Of the govern, commonly called the ReJlorationJ there was after the Re no attempt made by the king to revive the ftorallon- aforefaid legiflative commiffion, which had been granted by king Charles the ift, nor, in any other form, to aflume and exercife a legiflative authority over the American colo nies by virtue of the royal prerogative only, and without the concurrence of parliament : but the famous navigation-act, and many other acls of parliament were paiTed, after that period, concerning the faid colonies, by the king and parliament conjointly, in the fame manner as with refpect to the kingdom of England itfeif. It feerns reafonable there- Conciufioa fore to conclude that, ever (ince the reftora- the righ: of tion in 1660, the kings of England them- v^ felves, as well as their fubjecls, have been of rican
. . . fmce thac
opinion that they were not authorized by time, virtue of their royal prerogative alone, to make laws for their fubjecls in the American plantations, but that fuch laws could only be made by them in concurrence with the par liament of England, or with the aflemblies of the freeholders of the feveral plantations for which they were to be made.
This
. t 184 ]
The kings of This feems to have been the cafe with re-
Englandleem,
even alter the fpe<ft to the more antient American planta-
have claimed tions, in which aflemblies of the people had
arightofiegif. been eftabliflied, fuch as the plantations of
lation over
new colonies, New-England, and Virginia, and Barbadoes,
of and the Leeward iilands. For, with refpect
etta to ^uc^ plantati°ns as nac* been lately acquir- blifhed, ed, or recovered, and in which aiTemblies
had not yet been eftablifhed, the kings of England, after the reftoration, feemed ftill to claim a right of making laws for the in habitants of them by their fmgle authority, or without the concurrence of parliament, with refpeft to their internal government and domeftick concerns, though they acted in conjunction with the parliament in making fuch laws as related to the regulation of their trade, in common with the trade of the other colonies in America. At lead king Charles the 2d feems to have claimed and exercifed this prerogative. For, if I am rightly in formed, he governed Jamaica in this manner from the year 1660 to the year 1681, that is> by a governour and council only, without an afiembly of the freeholders of the ifland : which governour and council were nominated
by
r '85 ]
by the king, and exercifed a legiflative power over the inhabitants of Jamaica, though they were almoft all Eriglim fettlers, the Spaniards having, for the moft part, abandoned the ifland foon after the conqueft of it in the year 1655 during Oliver Cromwell's proteclorfhip. All the firft laws enacted in Jamaica were enacted, (as I have heard,) by the governour and council only : and, (as I fuppofe) there muft likewife have been fome taxes impofed upon the inhabitants, for the fupport of their internal government, by the fame authority. Butintheyear 1681 an aftembly of the people was called, who concurred with the governour
• o
and council in the exercife of the legiflative power. And this mode of government has continued in that ifland ever fince. This, I have been told, was the cafe in Jamaica from the year 1660, (in which king Charles the 2d took pcffeffion of his father's throne,) to the year 1681; but I am not quite certain about it, not having met with any diilincT: account of it in any book of note. But, with refpect to the province of New- York, I can fpeak with greater certainty, from the autho rity of Mr. William Smith, the great lawyer VOL. II. B b of
The ifland of Jamaica was governed by the kind's {ingle authori ty, without an aflembly of the people, from the year 1660 to the year 1681.
The province oi New- York
was ^ov-rncd in tas lame manner by the duke of York's deputies irotn. the year 1664. to the year 1683.
[ "86 ]
of that province, who has published a falth^ ful and inftruclive hiftory of it. And here it appears that king Charles the 2d claimed a right to the fame legiflative authority, and delegated it to his brother, the duke of York. For in the grant the king made to the duke 6f the whole province, together with the adjoining country fince called New-Jerfey, he included the powers of government as well as the property of the foil ; and, in purfu- ance of this grant, the duke of York governed it for feveral years by his (ingle authority, without fummoning an aflembly of the free holders. This authority he, for the moft part, exercifed by deputy, that is, by a go- vernour and council, whom he appointed for Col. Nichols the government of the province. Colonel goveraoor of Nichols, who recovered the country from
!? ,undre[r d,ie the hands of the Dutch, was the firft go- duke of York.
vernour of it under the duke of York : and the title, under which he took upon himfelf the government of it, was that of deputy- governour, under bis royal highnefs the duke of Torkj of all his territories in America.
This
[ ,87 ]
This colonel Nichols was a man of great prudence and moderation, and governed his new-acquired territory of New- York for near a twelvemonth before he received the news of the declaration of the war that had broke out between England and Holland, the faid news not reaching him before the month of June, 1 665 : which I mention as a confirma tion of what I before obferved, that this pro vince was not coniidered by the Englidi nation as a country acquired by right of war, but as a country recovered from the unjuft pofleffion, or ufurpation, of a foreign ftate. This country remained in the polTeffion of the Englim all that firft Dutch war, that is, till the peace of Breda in July, 1667, and was left in their poffeffion by that treaty. Colonel Nichols continued gcvernour of it, under the duke of York, during the greateft part of this period, namely, till the month He was foe- of May, 1 667, when he was fucceeded in i^elLdvcia?c that office by colonel Francis Lovelace. in May, 1607.
This colonel Lovelace was likewife a man
of great moderation ; and the people lived
peaceably under him till the country was,
B b 2 again
The province wasconquer'd by the Dutch in the year 1673;
bat reftored to the crown of England at the peace in 1674.
The king makes a new grant of it to the duke of York in June, 1674.
Maj. Androfs is appointed governour of it under the duke.
Heisfucceed- ed by colonel Dongan in Auguft, 1083.
again reduced to the obedience of the States of Holland in the year 1673, which was the fecond year of king Charles the ad's fecond Dutch war. But thib Dutch dominion did not continue long, the country being reftored to the crown of England by the treaty of peace, which was concluded between England and Holland in the following year, 1674.
Upon the concluflon of this peace the duke
of York, to remove all doubts that might be
entertained concerning his property in this
country, (which had thus been Conquered
by the Dutch, and reftored to the crown of
England,) obtained a new grant of it from
king Charles, dated the 29th of June, 1674,
and, two days after, commiffioned Major
Edmund Androfs (who was afterwards better
known by the title of Sir Edmund Andrcfs)
to be governour of his territories in America.
He was a man of a tyrannical difpolition,
and made himfelf odious to the people under
his government. However, he continued
in the office till the 27th of Auguft, 1683,
when he was fucceeded in it by colonel
Thomas
Thomas Dongan, who had been appointed to it by the duke of York in the preceding month of September, 1682.
This colonel Dongan, Mr. Smith fays, was a man of integrity, moderation, and genteel manners, and, though a profefTed papift, may be claffed among the beft go- vernours of that province. Mr. Smith then proceeds as follows. " The people, who " had been formerly ruled at the will of the " duke's deputies, began their firft participa- <c tion in the legillative power under colonel " Dongan : for mortly after his arrival, he Col«
./>- i i 1 n -re r i fummons aa
: iflued orders to the mentis to fummon the affembiy of " free-holders for chufmg reprefentatives to <f meet him in affembly on the I7th of 1*83 " October, 1683. Nothing could be more " agreeable to the people, who, whether " Dutch or Englifh, were born the fubjecls " of a free ftate. Nor indeed was the change 11 of lefs advantage to the duke than to the <{ inhabitants. For fuch a general difgufb had " prevailed, and in particular in Long ifland, " againlt the old form which Col. Nichols " had introduced, as threatened the total
<c fu over fieri
f 190 ]
<f fubverfion of the publick tranquillity, " Colonel Dongan favv the difaftec~tion of " the people at the eaft end of Long ifland j <{ (for he landed there on his firft arrival in " the country ;) and, to extinguish the fire " of difcontent, then impatient to burft out, " gave them his promife that no laws or rates " for the future jhould be impofed but by a <e general ajjembly. Doubtlefs this alteration " was agreeable to the duke's orders, (who " had been ftrongly importuned for it,) as " well as acceptable to the people : for they <f fent him foon after an addrefs, expreffing " the higheft fenfe of gratitude for fo bene- " ficial a change in the government. It " would have been impoffible for him much " longer to have maintained the old model " over free fubjecls, who had juft before " formed themfelves into a colony for the " enjoyment of their liberties, and had even " follicited the protection of the colony of " Conneclicut, from whence the greatefl <c part of them came."
The petition to the duke of York, by which he had been ftrongly importuned (as this author exprerTes it) to confent to this altera tion
From the year 1683 the pro vince has been governed by a governour, council, and affembly.
tion of the government of the province, was made by the council of the province, the aldermen of New- York, and the juftices of the peace at the court of affize on the 29th of June, 1 68 1, and contains many fevere reflections upon the tyranny of Sir Edmund Androfs.
-•'<•': r, fo'x' From the year 1683 to the prefent time
the legiflative power of the province of New- York has been uniformly exercifed by the governour, council, and affembly of the freeholders, without any attempt in the go vernour and council to exercife it without the afTembly.
Upon the death of kins; Charles the 2d Si"ce the*c"
* p ° ceffion or K.
the duke of York, his brother, fucceeded to James the zd the crown of England by the title of James tje faicTpro" the fecond, and coniequently both the pro- vince has been
a royal go-
perty, or immediate lordmip, of the province vernment. of New- York and the powers of government over it, became again vetted in the crown, as they had been before the grant made of them by king Charles the 2d to the duke of York. And they have continued verted in the crown,
ever
r *92 i
ever (incci fo that now, and ever fmce the acceffion of James the fecond to the crown, (which was in February, 1 68 4 \theappoint-
5 ment of the governour and council, and other
officers of government, in this province, has belonged to the crown, and the province has been a royal government.
Mr. Smith informs us farther concern ing the government of the province from the firft furrender of it to the meeting of the firft afTembly of the freeholders in the year 1683, in the words following. Of the laws « From the furrender of the province to
paffed atNew-
York before " the year 1683, the inhabitants were
the eftablifh- . , . ,
merit of an ruled by the dukes governours and .0 " tneir councils, who, from time to time,
<c made rules and orders, which were " efteemed to be binding as laws. Thefe, " about the year 1674, were regularly " colle&ed under alphabetical titles ; and " a fair copy of them remains amongfl They were « our records to this day. They are com-
called The
ts Laws. <• monly known by the name or The
" Duke's
r 193 i
ce Duke's Laws. The title-page of the " book, written in the old court-hand, is !l in thefe bald words :
';•••:/ Jus ' , V..^.
NOV^E EBORACENSIS,
V E L, LEGES AB ILLUSTRISSIMO PRIN
CIPE JACOBO, DUCE EBORACI ET ALBANIA, &c.
INSTITUTE ET ORDINAT^,
AD OBSERVANDUM IN TERRITO-
RIIS AMERICA;
TRANSCRIPTS ANNO DOMINI
M DC LXXI V.
" Thofe ads, which were made in 1687, of 'he
0 pafled m the
" and after the duke of York's accefiion to province of " the throne, when the people were admitted from the year " to a participation of the le^iflative power, 1\6831 to tlle
» O Revolution in
" are, for the moft part, rotten, defaced, or 1688. " loft. Few minutes relating to them remain " on the council-books, and none in the fe journals of the houfe of affembly."
VOL. II. C c The
[ '94 J
Of the firft The firfl affembly after the great and happy New-York revolution in England ia 1688, was called by volution? colonel Henry Sloughter, who was appointed governour of New- York by king William and queen Mary. It began on the 9th of April, 1691. And Mr. Smith tells us, that all laws made in the province of New- York antecedent to this period, are difregarded both by the legiflature and the courts of law. And that in the collection of the acts of the le giflature of the province of New- York pub- liflied in 1752, the compilers were directed to begin at that afTembly. And he adds that the validity of the old grants of the powers of government, in feveral American colonies, is very much doubted in the province of New- York.
Mr. Smith alfo relates that in this im portant year 1691, the houfe of affembly of the province of New- York, before they pro ceeded to pafs any new acts, unanimoufly A remarkable refolved as follows ; to wit, "That all the
rcfolution of . „
the faid af- ' laws contented to by the general anembly " under James, duke of York, and the " liberties and privileges therein contained,
" granted
[ '95 1
tc granted to the people, and declared to be tc their rights, not being obferved, nor ra- " tirled and approved by his royal highnefs ce nor the late king, are null and void, and " of none effect. AND ALSO, the feveral " ordinances made by the late governours. <c and councils, being contrary to the confti- <c tution of England and the practice of the " government of their Majefties other plan- " tations in America, are like wife null and " void, and of no effect, or force, within " this province." The latter part of this refolution mews plainly that it was the opi nion of this affembly that the duke of York had not been legally polIeHed of the legifla- tive authority which he had exercifed over the province of New- York by his governours and councils before the year 1 683.
Mr. Smith tells us further, that it has, more than once, been a fubject of animated debate^ whether the people of the province of New- York had a right to be represented in affembly, or whether it be a privilege enjoyed through the grace of the Crown ; and that a memorable act of aflembly was Cc 2 afitci
A memorable adl of the go vernour, council, and aflembly of New-York in the year 1691, containing a declaration of their rights.
It was after wards difal- lowed by K. "William in the year 1697.
Conclufion drawn from the foregoing account of the government of the provin- ces of Ame rica.
[ ,96 ]
pafTed by the governour, council, and afTem-* bly of New -York in this famous feflion in the year 1691, which virtually declared in favour of the former opinion, and which contained feveral other declarations of the principal and diftinguiming liberties of Eng- limmen, being intitled, " An aft declaring 'what are the rights and privileges of their Majcjlies fubjetfs inhabiting within their pro vince of New-Tork" But Mr. Smith adds that it muit, never thelefs, be confelTed that king William was afterwards pleafed to repeal that law in the year 1697.
'It feems therefore to have been the opinion of the kin^s of England, even fince the Re-
o o
volution, that they were pofTefied of an origi nal right of making laws and impofing taxes in all the dependant dominions of the Crown, thofe which were properly colonies, or planta tions, fettled by emigrants from England under the authority of the Crown, as well as thofe which were conquered from foreign flates j and that this right continued in them till they had voluntarily diverted themfelves of it by charters; or proclamations, or other
fufficient
[ '97 1
fufficient inftruments under the great feal, communicating a portion of it to the inhabi tants of fuch dependant dominions, to be exerciied by aflemblies of their reprefenta- tives. This, I fay, feefns to have been the opinion of the kings of England : but it does riot feem ever to have been recognized by their fubjeds either in thofe dependant do minions, or in England. For in king James the ift's time the parliament of England conceived themfelves to have a right to co operate with the king in making laws con cerning Virginia, though that king, and his fecretary of ftate, Sir John Cooke, and other minifters, denied that they had any right to intermeddle with it. And we have juft now feen that in the province of New- York, (which is almoft the only province of America which was governed for any length of time without an aflembly, at lead fince the refto- ration) the inhabitants never thoroughly acquiefced under the government of the governours and councils appointed by the duke of York, though they fubmitted to it for a few years. This doctrine, therefore, of a fole right of making laws for the de pendant
[ i98 ]
pendant dominions of the crown of England being originally vefted in the crown and con tinuing in it till the crown mall have volun tarily parted with it by an act under the great feal of England, may be juftly confidered as, at leaft, a doubtful doctrine, if not a falfe one, fince it has never been freely recognized by all the parties whom it concerns, which alone can make a doctrine concerning politi cal authority quite clear and certain. But the claim made to this power of legiilation by the Crown (whether well or ill founded) ieems to have been extended as well to colo nies, or plantations, fettled by emigrants from England, as to countries obtained by conqueft. For the province of New- York was confidered in the former light by king Charles the ad, and claimed and feized by colonel Nichols upon that ground before the declaration of war againft the States of Hol land, as we have already obferved : and yet it was governed by a governour and council only, by virtue of the king's grant of the powers of government over it to the duke of York, for the fpace of eighteen years, as well as Jamaica, which was conquered from
the
t J99 1
the Spaniards during the ufurpation of Oliver Cromwell. And, if it fhould be alledged that Jamaica, though conquered from the Spaniards, was neverthelefs confidered by king Charles the 2d as a colony, or planted country, and not as a conqueft, becaufe of the almoft total abandonment of it by its old Spanith inhabitants foon after the conqueft of it, we fhall then have two examples, inftead of one, of the exercife of legifiative authority over Englifh colonies by the Crown alone, though in neither cafe, as I believe, with the perfect fatisfadtion of the inhabitants fo governed.
FRENCHMAN.
1 am much obliged to you for this account of the claims of the Crown upon this fubjecl, which I perceive to be one of thofe diiputable queftions upon which the friends of power and the advocates of liberty may have plau- fibly maintained contrary opinions. How ever, I mould incline to think that the de claratory adl of the year 1766 ought to be .confidered as having fettled this matter againft the pretenlion of the Crown, at leaft with
reipecl:
Conclufion drawn from the declarato ry act in 1760 againft the fole legislative authority of the Crown o- ver the Ame rican colo nies.
, r 200 ]
refpeft to its American dominions ; fmce it declares that in all thofe dominions, the pro vince of Quebeck not excepted, in which no aflfembly of the freeholders had been then, or has been yet, eftablimed, the king and par liament conjointly had the power of making laws to bind the inhabitants in all cafes whatfo- ever. This feems to imply that fuch a govern ment as was eftablimed in Charles the 2d's reign in the province of New- York and the ifland of Jamaica by only a governour and council appointed by the Crown, could not now be legally eftablimed in the province of Quebeck, (though no afTembly has yet been called there) without an act of parliament for the purpofe.
ENGLISHMAN.
Thefaidcon- I think there is much weight in your
clufion is con- , - . . . . ., , ,
firmed by the oblcrvation. And it is confirmed by what
late Quebeck w£ ^ave £en £QnQ W'tj1 refe& to
vince by the late act of parliament, which has given you fo much uneafmefs. For we learn from it that his Majefty's minifters of ftate, having determined within thernfelves that no affembly of the people ought to be
eaabliflied
[ 201 ]
eflablimed in this province, but that it ought to be governed by a governour and council only, (as the province of New- York was during thofe eighteen years above-mentioned,) did not, in the year 1 774, think proper to efta- blifh fuch a mode of government here by the king's fingle authority by granting the govern our a new commiffion under the great feal of Great-Britain containing a delegation of the power of making laws for the province, to be exercifed by the governour and council only, without an afTembly of the people, but called in the affiftance of parliament for that purpofe. Surely this was an acknowledgement on the part of the Crown of a want of fufficient legal authority in itfelf alone to delegate thefe powers of legiflation to a governour and council only, without the concurrence of aa ailembly of the people!
FRENCHMAN.
This argument feems to be jufl and frrcng. Yet there are two objections to it which I beg leave to ftate to you, which feem fome- what to diminim. its force. If thefe can be removed, I fhall look upon it as quite con- «lufive.
VOL. II. D d E N G-
202 ]
ENGLISHMAN.
Pray, what are thofe objections ?
An objeaion
to the foreeo-
ing concliT-
proclamation
of Oftober, 1763.
FRENCHMAN.
The fir ft of them is as follows. You know
.
that our gracious fovereign was pleafed, foon after ^e ceffioii of this province to the crown of Great-Britain by the laft treaty of peace, to publifh a proclamation under the great feal of Great-Britain, dated on the yth of October, 1763, in which he promifed the inhabitants of this province the immediate enjoyment of the benefit of the laws of England, and that they fhould be governed as to matters of legiflation by a governour, council, and affembly of the freeholders and planters of the province, as foon as the fitu- ation and circumftances of the province would admit thereof. Now it may be laid perhaps, that by this proclamation the king had diverted himfelf of the power he before pofTerTed, of making laws for this province by his fmgle authority, or of delegating the power of doing fo to a governour and council
only,
[ 203 ]
only, without an affembly, becaufe fuch a mode of government would be different from that which he had, by his proclamation, pro- miled to eftablim here : and that therefore an act of parliament became necefTary to revoke and abolifh that proclamation. This, I conceive, may be faid by the advocates for this legiflative power in the Crown, in order to get rid of the inference you have drawn againft it from the application made to the parliament for the purpofe of delegating the legiflative authority in this province to the governour and council only. 1 don't know whether I make myfelf rightly underftood. But, I imagine, an objection of this kind may be formed againft your inference ; and I mould be glad to know what you would alledge in anfwer to it.
ENGLISHMAN.
I underftand your objection very well ; but do not think it of much weight. For, 5n fa?,fw5f w
the laid objec
though the proclamation you allude to gives tion. the people of this province an immediate right to the benefit of the Englith laws, yet D d z it
The procla mation did not promife the immediate eftablifhment of an aflem- bly, but only thatonefhould be fummoned as foon as the circumftances oftheprovince would permit.
It therefore did not pre- clode the king from making laws for the province be fore an afTcm- bly was efta- bliihed in it, if he had a right to do fo before the proclamation.
f
it does not give them an immediate right to be governed by an aiTembly, but only a right to be fo governed as Joon as the Jituaiion and dr cum/dances of the province will admit thereof. Until that period of Jitnefs arrives (which, in the opinion of the king and parliament of Great-Britain, is not yet come,) there is no thing in the proclamation that precludes the king from making laws for the province by his iingle authority, without the concurrence cf the parliament, and confequently from delegating to a governour and council only, without an affembly, the faid power of mak ing laws for it, fuppoling that lie was legally poiicfled of fuch a legiflative po\*rr before the proclamation was published. If there fore the king was legally poflefTed of fuch a legiflative power before he publimed his pro clamation, he continued to be poffefled of it after the proclamation until the faid feafon of Jitnefs for eftablifhing an affembly in the province fhould be arrived, of which, I pre- fume, his Majefty, when he publimed his faid proclamation, meant that himfelf mould be the judge. He might therefore, until the faid feafon of fitnefs, have exercifed the
faid
f 205 ]
faid leghlative authority over this province either in his own perfon by making laws for it by his own edicts, or proclamations under the great feal of Great- Britain, or by his deputies in this province, to wit, the go- vernour and council, without any breach of the aforefaid proclamation. But he did not think proper to exercife or delegate his faid authority in that manner, but called in the afiiftance of his parliament to enable him to make fuch a delegation of legiflative autho rity to the governour and council of this province. Therefore it may juftly be con cluded that he did not conceive himfelf to be legally pofiefled of fuch a legiflative au thority over this province either before or after his faid proclamation.
It is true indeed that there is one branch of the late Quebeck-acl which his Majefty's fmgle authority would not have been com petent to eflablifh in the province, either before or fince the proclamation of October, 1763, even according to the doctrine laid down by Lord Mansfield of the legiilative power of the Crown over conquered coun tries, countries; except that which ellabliflies the Reman Catholick
Therefore the foregoing conclu'i Jn re mains in the fame degree of force as if there had been no proclama tion.
There is no piovifion in the Quebeck- aft which might not have been eftablifhed by the fmgle au thority of the Crown ac cording to the doclrine of irs fole legiflative power over conquered religion.
That provi- *
fion could not
have been
an acVof par- hament, be-
cauieitis con trary to the
"
Elizabeth
[ 206 ]
tries, and which other crown-lawyers hare extended to colonies, or planted countries as well as conquered ones , I mean that branch of the faid act which relates to the eftablifhment of the Roman-Catholick religion in the faid province, or which gives the prieiis a legal right to their ecclefiaftical benefices and tythes, and laymen a right to hold places of truft and profit, without taking the oath of fupremacy, and requires them to take a certain new oath of allegiance in its ftead. por th}s branch of the faid act is contrary to
.
the ftatute of the i ft of queen Elizabeth, which exprefsly relates to the future domi- njons of the crown of England as well as thofe which at that time belonged to it : and Lord Mansfield allowed that the king's ^eg^at^ve authority over conquered countries was retrained by all fuch antecedent acts of parliament as were exprefsly declared to extend to them. It would therefore have been necefTary, when his Majefty's minifters conceived it to be proper to exempt the Canadians in the cafes above-mentioned from taking the oath of fupremacy, to procure an act of parliament for this purpofe. But this
neceffity
[ 207 ]
neceffity did not arife from the proclamation, and did not extend to any other fubject con tained in the Quebeck-acl, befides this of the abolition of the oath of fupremacy, there being no other proviiion in it that is contrary to any antecedent act of the Englifh parlia ment that exprelsly relates to that province. If therefore the king had poflefled a legal right of making laws for that province in all other refpefts, and upon all other fubjefts but that of the abolition of the oath of fu premacy, it would have been fufficient to make an aft of parliament for the regulation of that lingle fubjeft ; and there would have been no occafion to infert in it all the other claufes it contains, and more efpecially that which delegates to the governour and council of the province, without an ailembly, the power of making laws to bind its inhabi tants ; but thefe things might have been left to be fettled by his Majefty's iingle authority by his edidt, or proclamation, or other fufficient inftrument under the great leal. But it was thought proper on that occafion to infert thefe claufes in the faid ad: of parliament, and, amongft them, the
claufe
But the other provifions of the Quebeck- act might, ac cording to the aforefaid doc trine, have been made by the fmgle au thority of the Crown.
Ncverthelefs it was thought proper to in fert them in the faid ad of par:iamcnt.
[ 208 ]
claufe for vefting a legiflative authority In Therefore the the governour and council only. We may
king s mini- °
ftersmufthave therefore conclude that it was the opinion th°Ufaid doc- °f his Majefty's minifters of ftate and ad- trine was not vifers jn the bufmefs of the faid Quebeck-
true.
ad, that his Majefty was not poffeiled of a legal right to regulate all thofe matters by his fingle authority, and, more efpecially, to delegate to his governour and council + only, without an affembly, a power to make laws to bind the province. And I have above endeavoured to prove that this want of fuch a legiflative authority could not arifo from the promile contained in the proclama tion of October, 1763, of eftabliming an affembly in the province -, becaufe this pro- rnife was not to be immediately accomplilhed, but only as foon as the fituation and clrcum- flances of the province would admit thereof; until which feafon of ripenefs for fuch a meafure, we muft prefume that the new laws and regulations, that might becoms neceffary for the good government of the province, were intended to be made by that perfon, or perfons, who had a legal authority to make them before the faid proclamation
ifTued.
iflued. It follows therefore that this want of legiflative authority muft have been deemed by the advifers of the Quebeck-ac~t to have been originally inherent in the Crown before the proclamation of October, 1763. This, I hope, is a fufiicient anfwer to the objection you have ftated to my above-mentioned in ference, on the ground of the royal procla mation of October, 1763.
FRENCHMAN.
I am pretty wellfatisfied with this anfwer, fo far as I depend upon my own judgement only. For it certainly does feem reafonable to fuppofe that during the interval that mould elapie between the iffuing of the proclama tion of October, 1763, and the time at which his Majefty mould be of opinion that the fituation and circumftances of the province did admit of the eftablifhment of anaffembly, it might become neceflary to make fome new laws and regulations in the province j and confequently we muft prefume that his Majefty forefaw this neceffity, and meant that fuch laws fhould be made. The only remaining queftion feems to be, by whom he
VOL. II. E e intended
[ 210 ]
intended fuch laws mould be made ? and
the natural anfwer to this queftion, (fo far as
it can be collected from the bare perufal of
the proclamation itfelf,) feems to be, that
he intended that they mould be made by
that perfon, or perfons, (whoever they may
be,) that had the legal right to make them
before the faid proclamation was published :
becaufe the proclamation makes no alteration
in the matter during the aforefaid interval.
And this lays a foundation for your inference,
that, fince the king's minifters thought proper
to make ufe of the authority of parliament
for the purpofe of vefting the powers of
legiilation in this province in the governour
and council only, notwithftanding the fitu-
ation and circumftances of the province did
not yet admit of the eftablifhment of an
aflembly in it, they were confcious that the
king alone was not pofleffed of a legal right
to do fo. But what ftaers me a little on
he "iid es of occa^on ^s> ^at ^ feems to me, from
the Court of what you related to me of the judgement
King's bench rir-'n I_-T- j •
in England or the court ot King s Bench in hngland in
°[nThe that ca(e of Ctmpbell and Hall relating to the
duty of four and a half per cent, that had
bell and Hall. J
that the royal been
proclamation of October, 1763, operated as an immediate bar to the exer- cife of" the powers of legiilatiua in the four new governments by tJie ilwgle authority of the Crown.
been illegally collected in the iiland of Grenada j I fay, it feems to me from your account of that cafe, that Lord Mansfield and all the other judges of the court of King's Bench were of a different opinion from us with refpecl to the time at which the proclamation of October, 1763, began to operate as a bar to the exercife of the king's fole legiflative authority, fuppoiing him antecedently to have been pofieiled or" fuch authority. For, if I remember rightly the dates of the publick inftruments relating to the ifland of Grenada, the letters patent impoiing the duty of four and a half per cent, were publimed in July, 17645 and the com- mifiion of governour Melvil, to be captain general and governour in chief of that iiland, (whereby, amongft other things, he was impowered to fummon an afTembly of the freeholders and planters of it,) had paiTed the great feal in the preceding month of April, of the fame year, 1764; but the firft aflembly of the province did not meet till about December, 1765, that is, till near a year and a half after the iffuing of the letters patent that impofed the faid duty o£ E e 2 four
t 2I2 ]
four and a half per cent, and '-more than two years after the publication of the procla mation of October, 1763, which promited the people of Grenada, (as well as thofe of the province of Quebeck and the two Flo- ridas,) a government by an aflembly, (not immediately, but) as fcon as the fituation and circumflances of the jaid new governments 'would admit thereof. Here, therefore, was an interval of more than two years after the publication of the proclamation in October, 1763, before the aflembly of Grenada met, during which, according to your way of realoning, the king was not precluded by his proclamation of October, 1763, from exercidng his legiilative authority in the ifland of Grenada, in the fame manner as before the faid proclamation was made, fup- pofmg he had, before that ad., been legally poflefled of fuch authority : and in the former half of this interval, namely, in July, -1764, his Majtfty did exercife this legiflative authority by ifiuing thofe letters patent which impofed the faid duty of four and a half per cent. Thefe letters patent therefore, according to your dcclrine, muft
have
[ 2I3 ]
have been legal, when they were hTued, if they would have been fo before the faid proclamation of October, 1763. But the judges of the court of King's Bench in England have declared jufl the contrary, to wit, that thofe letters patent were illegal at that time, becaufe they were pofterior to the faid pro clamation, though they would have been, or, perhaps, might have been, legal, if they had been iffued before it. Have you any way of reconciling this opinion of thofe learned judges concerning the immediate operation of the king's proclamation of Octo ber, 1763, as a bar to the exercife of his antecedent legiflative authority, with your own method of reafoning upon it in the cafe of this province of Quebeck ? or am I re duced to the neceffity of adopting one of thefe opinions in direct oppofition to the other?
ENGLISHMAN.
Truly your difficulty feems to be very well founded : nor do I know how to reconcile thcfe contrary opinions concerning the time at which the proclamation of October, 1763, ought to be confidcred as a bar to the exercife
of
[ 2-4 ]
of the king's legiflative authority. I cannot therefore expert that you fhould adopt my manner of interpreting that proclamation in oppofition to that of thofe learned judges. But, as to myfelf, I inuft ftill retain my own opinion, notwithftanding it is different from theirs ; becaufe the judgements we form upon fubjects that lie within the reach of our underftandings, and which we have fully confidered, do not depend upon our choice, but are the neceffary effects of the impreffions which the reafons that have been offered to ourconfideration concerning them, have made upon our minds ; and I do not recollect that any reafon was given by thofe learned judges to fhew why the king mud be underftood to be precluded by that proclamation from the exercife of his antecedent legiflative au thority over the ifland of Grenada during the interval that mould elapfe between the time of ifiuing it and the time at which his Ma- jefty, in his royal wifdom, fhould think the fituation and circumftances of the ifland to be fuch as to admit of the meafure of fum- moning an aflembly of the people ; I fay, I do not recollect that any reafon was given
to
[ "5 ]
to mew this, except the Tingle circumftance of the want of an exprefs claufe in the faid proclamation of October, I7^3> to referve the legiilative authority over the faid new governments to the Crown in the faid interval before the intended affemblies of the people could be eftablimed, which J muft confefs I did not think a fufficient reafon to warrant that conclufion. However, I will confefs that this
difference of the opinion of thofe learned judges T.his
• • « • the
from my own upon this fubjecl, (which, in of the King's
truth, I was not aware of till you mentioned the foregoing it,) makes me diffident of the juftnefs of my ^wer to &*
J faid firfl ob-
own way of confidering it, though it has not jeaion very
- . , j .1 • . . doubtful.
intirely made me a convert to their opinion : and I therefore lay much lefs ftrefs than I did at firft, on the inference I drew from the application made to the parliament by the king's minifters, when they recommended the pafling the Quebeck-ac~l, for the purpofe of vetting a legiflative authority over the province of Quebeck in the governour and
council only. But, I think, you faid you
had another objection to that inference, which you wiihed me to confider. Pray, what was it ?
FRENCH-
[ 216 ]
FRENCHMAN.
A fecond ob- That other objection to your inference
jeftion to the . , ,
aforefaid in- was grounded on the government that had in f aft been eftablifhed in the province ever fince the laft peace to the ift of laft May, 1775, when the prefent Quebeck-act took place. For during all that time this province was governed by a governour and council only, without an aflembly of the people, by virtue of the king's fingle authority, and without an act of parliament to authorize that mode of government : and the go-
o o
vernour and council exerciled a legislative authority in the province in various instances, as you well know, many ordinances having been made by them during that interval. Now the conduct of the Crown in thus efta- bliming in this province a government by a governour and council only, without an aflem- bly, for the fpace of between i o and 1 1 years, (namely, from Auguft, 1764, when general Murray's commifiion of captain-general and governour in chief of this province was firft publiihed in the province, to the ift of laft May, when the Quebeck-act became of force
in
in it,) feems to preclude the inference, which you have drawn from the claufe in the faid Quebeck-acT: which eftablifhes this kind of government, of a confcioufnefs in his Majefty's minifters of ftate of a want of a legal right in the Crown alone to eftablim this mode of government. For, if they were conlcious of fuch a want of legal authority in the Grown, why did they advife his Majefty to exert fuch an authority before the paffing of the Que- beck-adt by delegating to the govefhour and council only, without an affembly of the people, the power of making laws to bind the province ? or was no fuch power dele gated to them by the Crown, though they took upon them to acl: as if it had been fo ? in which cafe the feveral ordinances made by them before the operation of the Quebeck- ac~t muft have hald no legal validity.
ENGLISHMAN.
This is a very fair and natural objection to the inference I had drawn from the Quebeck- acl:, and well deferves to be confldered. But I believe I fliall be able to anfwer it in a manner that will perfectly fatisfy you, by
VOL, II, Ff explaining
t *i8 ]
explaining to you the true ftate of the fad upon this fubjec~l during the ten or eleven years you fpeak of, which I perceive you are not fully acquainted with. The fad; is as follows.
An anfwer to In the commiffion of captain-general and
thefaidfecond • i • r r i_« • j
objection. governour in chief of this province granted by his Majefty, under the great feai of Great- Britain, to General Murray in the year 1 764, there is a claufe impowering the General to fummon an afTembly of the freeholders and planters of the province as foon as the fitu- ation and circumftances of the province will admit thereof, and, with the confent of fuch afiembly and of the council of the province, to make laws, ftatutes, and ordinances for the peace, welfare, and good government of the fame. But, though it is certain that his Majefty was not thenj and, as it fince ap pears, is not yet, of opinion that the fituation, and circumftances of this province were fuch as to admit of the meafure of fummoning fuch an aflembly, yet it was not thought proper to infert a claufe in the faid com- miflion to impower the governour, in the
mean
'mean 'while and until fuch aflembly fcoiild be
+/ **/ X •/
Jummomdi to make fuch laws and ordinances by the advice and confent of the council of the province only. And yet it muft be al lowed that that would have been the legal and proper way of delegating fuch a legifla- tive authority to the governour and council only, if the Crown was legally poffefTed of a right to make fuch a delegation, fuch high powers being incapable of being legally transferred from the fovereign to any of his fubjedts in any other manner than by an inftrument under the great feal. This omiffion, therefore, of a claufe for this pur- pofe in the governour's grand commiffion under the great feal, (which was the only legal foundation of the government of this province,) though his Majefty's minifters had at the fame time no intention of fpeedily calling an aflembly, and confequently fuch a claufe would have been fingularly expedi ent, if it had been lawful, did not look like - a claim on the part of the Crown to a legal right of delegating fuch legislative powers to the governour and council only, but rather like a tacit acknowledgement of the want of
fuch a right.
F f 2 What
[ 220 ]
Oftheiegifla- What then, you will afk, could be the exerdfed°riii defign and intention of his Majefty's minifters 6 on this occarion ? Did they imagine that the
of
before the late province might be governed for fome con-
fiderable time, (namely, until it mould be expedient to fummon an afiembly,) without paffing any laws or ordinances at all ? — Or, if they did not think this practicable, but intended that fome ordinances mould, from time to time, be pafled in it, as occafions might require, by whom did they intend that fuch ordinances mould be made ? The proper anfwers to thefe queftions I take to be as follows. His Majefty's minifters did not fuppofe that it would be poffible to govern the province without pafling any new ordinances at all in it, as occaiions might require, before an afiembly mould be fum- moned in it -, but they imagined that it might be fufficient for its temporary welfare during that interval, to pafs only a few ordi nances upon fubjeds of fmall importance, fuch as what you Frenchmen call regiments, de police, or regulations relating to publick conveniency and decorum, without meddling with the criminal law in its higher branches,
fo
fo as to affect the lives or limbs of his Ma*
jefty's fubjeds in the province, or their right
to perfonal liberty, and without making free
with their property by the impofition of any
duties or taxes. And with this view his
Majefty thought fit to delegate to general
Murray, the governour of the province, by
a private inftruction under his fignet and fign-
manual, the following very limited legifla-
tive authority, to be exercifed by the advice
and with the confent of the council of the
province only, and without the concurrence
of an aflembly, to wit, an authority to make
fuch rules and regulations as foould appear to
be necejjary for the peace, order, and good
government of the faid province \ taking care
that nothing be pajjed or done that jhall any
'ways tend to affect the life, limb, or liberty
of the fubjecJ, or to the impofing any duties
or taxes. This legiflative authority, you
plainly fee, was very fhort of that which
had been communicated to the governour
by his commiffion under the great feal, to
be exercifed in conjunction with an aflembly
of the freeholders ; which was to make laws,
Jlatutes, and ordinances for the publick peace,
welfare,
A certain very limited legif lative autho rity was dele gated to the governour and council, without anaf- fembly, by an inftruftion under the king's fignet and fign-ma- nual.
Conclufion drawn from the conduft of the Crown in delegating the faid legif- lative autho rity by an in- ftraftion.
f 222 ]
•welfare, and good government of the faid province, and this without any fuch reftric- tions as thofe above-mentioned with refpect to the impofition of duties or taxes, or to the pafling fuch laws as might affect the lives, or limbs, or liberty of his Majefty's fubjecls. Yet, limited as this authority was, it was all the legiflative authority that had either been dele gated, or fuppofed to be delegated, to the go- vernour and council of this province before the late Quebeck-act. And, if you reflect on the fmall extent of this authority, and the private, imperfed, manner in which it was delegated, you will hardly, I imagine, be difpofed to confider it as a fair and open exertion of an authority in the Crown to make laws for this province, or to delegate the power of doing fo to the governour and council only.
FRENCHMAN.
I certainly cannot confider it in that light, but muft rather look upon it as a kind of acknowledgement of a want of fuch a legal authority in the Crown, and an expedient to make a fhift without it for a (hort time, by a tender and cautious ufe of a very limited
legiflative
legiflative power of a doubtful nature, and which could be juftified only by a kind of feeming temporary neceffity of having re- courfe to it during the interval of time that might elapfe before his Majefty (hould judge the fituation and circumftances of the pro vince to be fuch as to admit of the fummon- ing an aflembly. I therefore am fatisfied that it ought not to operate in any degree as a bar to the inference you are difpofed to draw from the ufe made by his Majefty 's minifters of ftate of the authority of the Bri- tim. parliament, on the occafion of the late Quebeck-a<3, for the purpofe of vefting in the governour and council of the province a more ample power of making laws and ordi nances for its government, to wit, that the Crown was confcious of the want of a legal right to delegate fuch a legiflative power to them without the concurrence of the par liament. But that inference will, in my opinion, remain juft and unirnpeached, fup- pofing the proclamation of October, 1763, did not operate as an immediate bar to the cxercife of any legiflative authority in the province without the concurrence of an
aflembly,
Of the nature of inftruftions to governours of provinces under the king's fignet and fign -ma nual.
f 224 I
aflembly, but left the Crown at liberty to ac~l according to the powers it had legally pofTefTed before, during the interval that fhould elapfe before the lituation and cir- cumftances of the province fhould, in his Majefly*s opinion, admit of the eftablimment of an aflembly. But this, we muft remem ber, the judges of the King's Bench in Eng land have unanimouily determined againft us.
But, before we take leave of the fubjec"fc we have been juft now confidering, I mean, the political fituation of this province before the late Quebeck-acT:, I muft trouble you with a queflion that occurs to me concerning the king's inftruclions to his governours of his American provinces. Pray, is it under- ftood that any powers whatfoever, even fuch as are legally vefted in the Crown and are capable of being legally delegated by it, can be legally delegated by an inftruction ? For it feems ftrange to me that they mould be fo, feeing that inftruclions are things of a private nature, that feem intended to regulate the conduct of governours in the ufe of the high powers that are vefted in them by their
publick
publick commiflions, rather than to be the inftruments by which fuch powers are con veyed to them.
01
ENGLISHMAN.
Your conception of this matter feems to me to be perfectly juft. Inductions to governours can convey no powers to them whatfoever, but are only to be considered as directions to them how to ufe the powers which are conveyed to them by their corn- millions, and are intimations of his Majefty's refolution to remove them from their go vernments and appoint other perfons in their room, in cafe they {hall ufe thofe powers in a different manner from that which is pointed out by their inftruclions. In fhort, they are inftruments of a private nature : and, accord ingly, we are informed by Mr. Smith in his excellent hiftory of New- York, that in that province the governour's inftructions, (though they are in number above an hundred, and regulate the governour's conduct on almoft every common contingency,) are never re corded. And the fame thing maybe faid, as 1 believe, with refpcdl to the inftrudligns given
VOL. II. G g to
No written in- ftrament can
legally convey any powers of government, unlcfs it be made publick.
The proper inftruments for this pur- pqfe in the Englifh go vernment are comir.iffions under the great feal.
[ 226 ]
to the governours of other provinces. Now no inftrument can, (as I conceive,) convey pow ers of government in any country, or according to any fyftem of laws, except it be of a publick nature, -and the contents of it be made known to the perfons over whom thofe powers are to be exercifed, and who are to be bound to pay obedience to the acts that are to be done in purfuance of them. For how elfe mall the lubjecls over whom the perfon intrufted with fuch powers is to prelide, know that he is to be their governour, or in what re- fpecls, and to what degree, they are bound to obey his orders ? If a man of rank comes into a province, and tells the people of it, by word of mouth only, that the king has appointed him their gbvernou^ that furely will not be fufficient to intitle him to their obedience 3 but they not only may, but ought to refufe to obey him till he produces fome regular inftrument in writing, properly au thenticated, or proved to proceed from the king's authority, by which it appears that he is fo appointed. And the proper inftrument for this purpofe in the Englifh government is a commiffion under the great feal of Great- Britain,
Britain, the authority and importance of which feal is fo highly protected by the law of England that it is the crime of high treafon, and punimable with lofs of life and forfeiture of lands and goods to the Crown, to coun terfeit it. It is only therefore by the produc tion of a commiffion fo authenticated that a governour of a province can intitle himfelf to the obedience of its inhabitants.
And further, when fuch a commiffion is produced and publifhed in a province, fo as to give the people of it a fatisfactory affur- ance that the perfon who produces it has been appointed by the king to be their go vernour, they are only bound to obey him in the exercile of fuch powers as are con veyed to him by the commifiion, and not in other matters that are not mentioned in it, or that do not fall under the powers that are fpecified in it. I mention this, becaufe I have known feme perfons imagine a go vernour of a province to be the full and general reprefentative of the king's majefty, and to be legally capable of exercifing all the adta of authority in the province which Gg 2 the
Governours of provinces have a legal right to exer cile only thoie powers of go vernment which are fpe cified in their cum millions :
[ "8 ]
the king himfelf might lawfully exercife, if he were prefent there in his own perfon. ar.e ' But this is, undoubtedly, a very miftaken general repre- notion, bccaufe the king never delegates to
ientatives of , . . r 111
the king. any oj his governours or provinces the whole of his royal authority, but fpecifies in their commiffions the powers he intends they mould exercife. It is true indeed that he might, if he pleafed, make fuch a delegation of his whole royal authority, by exprefsly declaring in his commiffions to his governours, " that he gave them full power to act in their refpeclive provinces in his place and {lead, as his vice-roys and lieutenants, and to exercife every power of government in the fame which he himfelf might lawfully exercife if he were there perfonally prefent:" at leaft 1 know of nothing that could hinder him from fo delegating his whole authority, if he thought fit. But it is certain that he never does fo delegate it in his commiiTions to his governours of provinces, but, on the contrary, fpecifies, at confiderable length, in thofe commiffions, the particular powers he intends they mould exercife in their refpeclive
provinces,
[ 229 1
provinces, and, with refped: to fome of thofe powers, exprefsly retrains his governours from exercifing them in the fame extent as he himfelf might do ; as, for inftance, in the power of granting pardons to criminals, they being ufually reftrained by the words of their commiffions from granting pardons to perfons guilty of treafon or wilful murder. Since therefore the king ufually thinks fit to delegate to his governours of provinces fome portions of his royal authority, and not others, there is no way of knowing what portions of it he has fo delegated, and what he has not, but by examining the commiflions he has granted : and thofe powers that are fpecified in the ccmmiffions muft be allowed to belong to the governours to whom the commiiTions are granted j and the acts done by the governours in the execution of thofe powers muft be fubmitted to as legal: and all other branches of the royal authority beiides thofe which are fo fpecified, muft be fuppofed to have been referved by his Ma- jetty to his own perfon, and not to have been delegated to his governours.
And
If the king were to make hisgovernours of provinces his full and general repre- ientatives, it would be at tended with great incon veniences.
[ 230 ]
And indeed it is a moft prudent and judi cious practice thus to exprefs in the com- miffions of the governours of provinces the particular powers which his Majefty intends to delegate to them, inflead of delegating to them the whole royal authority by fuch general and comprehenfive words as are above mentioned, or making them the ge neral reprefentattves of their fovereign, (as I have known fome people confider them,) with all the power which the king himfelf would lawfully poflefs, if he were prefent there in his own perfon : becaufe, if this were done, it would give occafion to num- berlefs difputes and difficulties concerning the limits of the powers which the king himfelf might lawfully exercife in the pro vinces, if he were fo perfonally prefent in them, which, it is probable, the governours of provinces would often conceive to be more various and exteniive than the people under their government would be willing to allow j all which difputes are happily avoided by the prudent practice of fpecifying in the com- miiTions themfclves the powers which are intended to be delegated to the governours
to whom the com millions are granted.
It
[ 231
It feems reafonable therefore to conclude upon the whole, that a governour of a pro vince has a right to exercife juft fo much of his fovereign's royal authority as is fpecifi- cally delegated to him by the words of his commiflion under the great feal, and no more ; and that every other delegation of the royal authority to him by any inflrument not under the great feal, is illegal and void, even though the power fo delegated fliould be fuch as the Crown has indifputably a legal right to ; and much more, therefore, in all other cafes »
FRENCHMAN.
This way of reafoning on the nature of a governour's authority appears to me to be very clear and juft. But I have been told that it has not been always adopted by the king's governours in America. For, accord ing to this doctrine, the king's inftrudtions to his governours, being under his fignet and fign-manual, can convey no powers to them whatfoever, nor even create any legal re- ftraint upon them in the ule of the powers which are legally delegated to them in their
commifuons
The king's in- ftruftions un der the fignet and fign-ma nual cannot legally ope rate fo as ei ther to en large or re train the powers of go vernment contained hi the govern our's com- raiilion.
commifllons under the great feal, Co as to make thofe ads become illegal and void, which are done agreeably to fuch powers given in the commifllons but in oppofition to the faid inftructions. Thus, if the king, in his commiflion under the great feal, gives his governour a general power to grant any lands in the province upon the ufual condi tions ; and, in his private inftruclions under his fignet and fign-maniial, directs him to forbear making grants of fuch and fuch par ticular tracts of land, which his Majefty chufes to referve to himfelf; and the go- vernour, notwithstanding fuch inftruction, makes a grant of land in the faid excepted tracts j fuch a grant will be valid by virtue of the general power of granting lands con tained in the commiflion under the great feal, notwithitanding the exception of thofe particular tracts of lands contained in the private instruction. And, in like manner, an act done in purfuance of a power con tained in an inftruction, but not in the com miflion under the great feal, muft be con- fidered as illegal and void. This, if I un- derftand you right, is your opinion upon this fubject.
ENGLISHMAN. It is exactly fo.
FRENCHMAN.
But I have been told that an opinion has Of a claufe in
the commif-
prevailed amongft fome governours or pro- fions of go- vinces and other fervants of the Crown, that provinces,0 the inftructions given to governours under whic,h . reffrs
to their in-
the king's fignet and fign-manual are of equal ftmftions. authority with the commimons under the great feal, and that there is a claufe in almoft every governour's commiflion which refers to the inftructions, and, as it were, adopts them into the commiflion, and makes them partake of its high legal authority derived from the great feal. Pray, do you know of any fuch ciaufe in the commiffions ufually given to governours of provinces ? and do you con ceive that fuch a claufe can have the effect afcribed to it ? For to me it appears a very indirect and whimfical way of proceeding.
Hh
[ '34 J
ENGLISHMAN.
There is in fome of the commiffions to governours of provinces, and perhaps in all of them, fuch a claufe as you fpeak of. Jn the commiflion to Sir Danvers Ofborne to be governour of New- York in the year 1 754 The words of jt js exprefled in thefe words. t( Know you
theiaid claufe. V,
: that We, repofing efpecial trull and con-
*c fidcnce in the prudence, courage, and
" loyalty of you, the laid Sir Danvers
" Ofborne, of our efpecial grace, certain
<c knowledge, and meer motion, have
" thought fit to conftitute and appoint you,
" the {aid Sir Danvers Ofborne, to be our
" captain-general and governour in chief in
" and over our province of New- York and
<c the territories depending thereon in Ame-
£C rica : and we do hereby require and
tc command you to do and execute all
" things in due manner that mall belong
" unto your faid command and the truft
" we have repofed in you, according to the
" feveral powers and directions granted or
<c appointed you by this prefent cominiffioa
" and
f 235 ]
<c and inftru&ions herewith given you, or The words cf
. . reference to
" by fuch further powers, inftnittiom, and the inftruc- " authorities, as ft all at any time hereafter " be granted or appointed you under our fignet " and fign-manual, or by our order in our " privy council, and according to fuch rea- " fonable laws and ftatutes as now are in " force, or hereafter fhall be made and " agreed upon by you, with the advice and " content of our council and the afiembly <c of our faid province under your govern- <c ment, in fuch manner and form as is " herein after expreffed." And there is a claufe of the fame import, and exprefied in almoft the fame words, in the commif- fion given to general Murray to be governour of this province of Quebeck in November, 1763, and likewife in the two commiflions given to general Carleton, in the years 1768 and 1 774 to be governour of the fame pro vince. In this claufe the words, " by fuch further powers, in fir ucl ions, and authorities, as ft all at any time Icrccjter be grafted or appointed you under mtr fignct andfign-manual" are thofe to which you allude, and whkh have been fometimes alledgcd as a [rxf that II h 2 the
An inference the inftrudlions given to a governour under
that has been . , _ . r
fometimes the king s iignet and ngn-manual are of equal weignt anc* authority with the powers contained in his commiffion under the great feal, (or, as the perfons who argue in this manner feem to conceive,) partake of the authority of the commiffion under the great feal by being thus referred to by it. But °f this is in my opinion a very abfurd and per- rence to un- nicious way of reafoning, and has a tendency authority of to undermine and deftroy the authority of the great feal. tke kjng's great fg^ which is the peculiar
inftrument by which the law of England has appointed that, in all great and folemn ads, the regal power mail be exerciled. For, if fome additional powers, beyond thofe which are exprefled in the commiffion, may thus be delegated to a governour of a pro vince by a private inftrudtion under the king's fignet and fign-manual, by virtue of a previ ous reference to them inferted in the com- muTion, why may they not all be fo dele gated, and the commiffion be reduced to this one fentence, " We do appoint you our captain-general and governour in chief of fuch a province, Jwith fuch powers as we
Oiali
[ 237 1
(hall hereafter invert you with by our in- ftruclions under our fignet and fign- manual?" But, if this were done, it is evident that the- commifTion under the great feal would no longer be a real and effectual commiflion, delegating powers of government to the go- vernour to whom it was given, but would be a mere nominal commiflion, which could only operate as a grant of the title of go- .vernour of fuch a province, as a title of honour ; and the inftruclions would in truth be the commiffion, or important inftrument by which the powers of government would be communicated to the governour; that is, an inftrument under the king's fignet and fign-manual would be the means of convey ing thofe high powers to the governour which, it is univerfally allowed, can be legally dele gated only under the great feal. It is certain therefore that all the powers ufually vefted in a governour of a province cannot legally be delegated to him in this manner by an inftrument under the king's fignet and fign- manual : and confcquently, fince the fame rcafon holds againft the delegation of any one power of government in this manner as againft
that
[ 238
Conciufion a- that of any other power, we may conclude
gainft the faid
inference. that no one power of government can be legally fo Communicated, but that all the attempts to delegate any powers of govern ment by the king's inftruclions under his fignet and fign-manual, and likewife all at tempts to reftrain by fuch inftruclions the full exercife of the powers legally delegated ^to a governour in his commiffion under the great feal, are illegal and void. This, at kaft, is my opinion beyond all manner of doubt ; and therefore I look upon thofe words to which you alluded in the commiffions of many governours of provinces, to wit, " by fuch Jurtber powers^ inftnifficm, and autho rities ', as Jhall at any time hereafter be granted or appointed you under cur fignet and fign manual" as idle and unoperative in a legal way, but yet at the fame time as tending to undermine and elude the authority of the great feal, and introduce a practice of exer- ciiing and delegating the great powers of the Crown by inftruments under the king's fignet and fign-manual, inftead of inftruments un der that more fclemn, important, and antient feal which the law has alwavs rec-Jiniized as
4 wJ
•the
the true teftimony of the full and deliberate exertion of the royal authority, and has accordingly protected by the fanction of the higheft penalties. And therefore I moft heartily wifh that thefe words, or, at leaft, the two words powers and authorities, and the word granted^ which refers to them, were to be left out of all the commiffions which fhail hereafter be granted to his Ma- jefty's American governours.
FRENCHMAN.
It would be right to leave out the laid words of re ference to in- ftructions ia all future commiffions to governours of provinces.
I intirely agree with you in thinking that they ought to be left out of the commiffions, It feems and cannot but wonder that they have ever t}™"- been inferted in them. For I cannot con-
that were
ever inferted in the com-
ceive what objection the kings of Great- miflions._ Britain, or their minifters, can ever have .had to the fpecifying in the moft ample manner in the commiffions given to the governours of provinces under the great fea), all the powers they intended the faid governours fhould exercife. This would have at once removed all doubts and difficulties that might arife concerning the legality of the delega tion of thofe powers, and would have been
as
[ 240 ]
as fliort and eafy a method of conveying them as the other by the fignet and iign- manual, and, in my apprehenfion, more fuitable to the dignity of the royal character ; becaufe, the higher is the degree of authen ticity with which the king's ads of ftate arc tranfacted, and the more folemn and formal the manner of tranfacting them, the greater will be the reverence with which they will be received by the people, and the more willing and ready the obedience that will be paid to them. It feems therefore furprizing to me that it mould ever have entered into the heads of the king's minifters of ftate to advife his Majefty to attempt to delegate any powers of government to his fubjecls in any other way than under the great feal : and 1 beg you would let rne know what you think may have been the motive that has given occafion to fuch a proceeding.
ENGLISHMAN.
concermng™ , Truly I have been as much furprized at the reafons fa^ practice as you can be : nor do I know
that may have J
been the oc- any certain way of accounting for it. But
cafion of in- T ' .
them 1 conjecture that the reafon or it may have
\
in the com rtffions.
r 24' ]
been as follows. The great feal of Great- or th=
0 ^ character and
Britain is kept by a great officer of ftate called qualifications
the Lord Chancellor ; or Lord keeper of the chancellor?, '
great Jeal, (for they are precifely the fame orlorofsktehe"
officer under different titles j) who is gene* great feal, of
Great-Britain.
rally lome very eminent and learned lawyer, bred to the profeffion of the law from his youth, and much fkilled in the practice of it, and deeply verfed alfo in the civil hiftory of England and the conftitution of its govern* ment, or that part of the law of the kingdom which relates to the diftribution of the feveral powers by which it ought to be governed, and the forms and folemnities with which thofe powers ought to be adminiftered. And it is underftood to be his duty to examine the contents of every inftrument to which ... he is commanded by the king to put the great feal, and to fatisfy himfeif that it con tains nothing hut what is agreeably to law and juftice before he puts the feal to it. And, if he puts the feal to any inftmment that is contrary to law, or which, though agreeable to law, is manifeftly contrary to the welfare of the kingdom, he is liable to be puniihed for fo doing by the judgement ^ VQL, JJ. J ; of
of the Houfe of Lords in conicquence of an impeachment, or accufation, preferred againfl him before them by the Houfe of Commons, and alib, I believe, in the firil cafe, or where he puts the feal to an inftrument that is con trary to law, to an action at law at the fuit of the perfon who is injured by means of fuch illegal inftrument. Thefe dangers, at tending the abufe of the great feal, make it difficult for the Crown to do illegal acls under that fandion : bccaufe the lord chan cellor, from his knowledge of law and
hiftorv, his habits of examining matters of
j ' «_>
(late with care and caution, and furveying all their relations and confequences, will not eafily be brought to ufe the great feal for fuc^ purpofes. But the cafe is otherwife and fpirit that wjth refpecl to the king's fiimet. The in-
prevails
the Itruments executed under the km?s fignet
00
are counter-figned by the king's fecretaries of flate, without ever under- going the lord chancellor's examination, or that of the privy- council, or even of the attorney-general, or any othef perfon who, from his education and ftation in life, may be fuppofed to be acquainted with the law. For, as to the
fecretaries
[ 243 ]
fecretaries of ftate, you certainly mull know as well as I do, that they are ufually men of high rank, born to titles and great eftates, and bred in habits of eafe and luxury, and but little acquainted, or inclined to become acquainted, with fo dry a fubjecl as the law. Perfons of this defcription, when they are placed in ftations of authority, are much fl*ore likely to advife their fovereign to do ads of an irregular, or doubtful, nature, without inquiring how far the law allows of them, than a learned and grave lord chan cellor, if it were but through mere ignorance, and though their intentions were very pure : but it often happens that to this ignorance of the law they add a contempt for it and a difpofition to difregard its reftraints, and over leap the limits it prefcribes to their authority, which they are apt to confider as narrow pedantick rules which it is below their dig nity to fubmit to, and, like Achilles in the character given of him by Horace, "Jura negant fibi nata, nihil non arrogant armis. They are therefore fond of the doctrines of reafon of Jlate, and Jlate neceffity, and the impoffibility of f raiding for great emergencies \ \ 2 and
t 244 1
and extraordinary cafes, without a difcretionary power in the Crown to proceed fometimes by uncommon methods not agreeable to the known forms of law, and the like dangerous and I deteftable petitions, which have ever been the pretence and foundation for arbitrary power. I do not mean that all fecretaries of ftate are of this way of thinking t for undoubtedly fome of thofe minifters have been men of a different character : but there have been, ras I believe, enough of that difpofition to warrant me in faying that it is the general fpirit and complexion of the office. Nor would it be difficult to find proofs of this extra-legal, or rather fupra- Icgal, difpofition in the powers they have afTumed to themfelves without any clear warrant of law for fo doing, and in the manner they have exercifed thofe powers thus unwarrantably aflumed : of which I will mention to you one remarkable inftance, which, in the cafe of the celebrated Mr. Wilkes, fome years ago engaged the atten-
An account of . . , ,
the arrefting tion of all England. That gentleman had
ia^Pw^ w'-itten> (°r * ft°uld ™ther %. was fuP- ii, April, 1 763, pofed to have written; for it was never
by a general
warrant iffued pl'OVed
by die Earl of Halifax, one o" t!.e king's fecretaries of ftate.
r 245 i
proved upon him}) a political paper called the North-Briton, N°. 45, in the month of April, 1763, loon after the conclufion of the late definitive treaty of peace, by which this province of Canada was ceded to the crown of Great-Britain : in which paper there was a pafTage that gave offence to the Court and was confidered as in a high degree feditious. Upon this a refolution was taken by the king's minifters of ftate to arreft Mr. Wilkes and profecute him in the court of King's- Bench for writing and publifhing the faid feditious paper, or libel j and he was ac cordingly arrefted, and all his papers of every kind were feized, by virtue of a warrant illued to one of the king's meflengers by the late earl of Halifax, who was at that time one of his Majefty's fecretaries of ftate. And this warrant was a general warrant^ which did not mention Mr. Wilkes's name, but im powered the meffenger to arreft the per- fons (whoever they might be) who had been concerned in writing and publishing the laid feditious paper, called the North- Briton, Number 45. This omiffion of Mr. Wilkes's name made the warrant utterly
illegal,
t 246 ]
Tftefaidwar- illegal, becaufe it required the king's me£. rant was ille gal, fenger (who was a mere mmiiterial officer,
or rather who acted as fuch) to do that which was the bufmefs of a judicial officer, or ma- giftrate, that is, to exercife an adt of judge ment of an high nature by determining who were, and who were not, concerned in the comrniflion of the offence in queftion. This was an act of judgement of lo important a kind that even a magiftrate ought not, ac cording to the maxims of the Englifli law, to have ventured to do it without having received an information upon oath from fome credible vvitnefs, that fuch, or fuch, a perfon had committed the offence in quefHon, to be a ground for his ordering him to be ar- refted ; becaufe, if magiftrates had a power of arrefting men without fuch previous in formation, and merely upon their own fufpi- cions, or pretended fufpicions, they might catite any perfon, how innocent ioever, to be thrown into prifon whenever they thought fit. And much lefs can a magiftrate delegate
o o
inch a power of determining who is the perfon that has committed a particular offence, to a mere ^mihifterial ctfic-r oi ji;tliee, luch as
thi
the king's meffenger ; which is done when ever a general warrant is ifTued. This gene ral warrant therefore iflued by Lord Halifax was clearly illegal, and confequently the ar- reft and irnprifonment of Mr. Wilkes in purfiiance of it were illegal likewiie, and **r.
afterwards
became a juft ground for an action at law at brought an the fuit of Mr. Wilkes againft Lord Halifax, the fecretary of ftate, for a falfe, or wrongful,
irnprifonment of him : and Mr. Wilkes did count cf «!>« afterwards accordingly bring fuch an action covered a. againfthim in the court of Com-mon-PIeas in England, and did recover, by the verdict
r r
of a jury, a large fum of money as a com- penfation for the damage he had wrongfully fuftained by fuch irnprifonment. It muft neverthelefs be acknowledged, in juftice to the late Lord Halifax, that, though he iffued the faid general warrant, he was not incited to do fo by the haughty fpirit which I have been juft no,w defcribing as too apt to influence the great men who fill thofe offices, but was himfeif rather inclined, (from his own natural good fenfe, and, as we may fup- pofe,, the .moderation of his temper,) to inr- iert' Mr. Wilkes's name in the warrant, but
Thefe general warrants, (though ma- nifeftly ille gal,) had been ufually iflued by fecretaries of ftate for an hundred years before.
The faid prac tice (hews the ipirit of vio lence and ar bitrary power that has ufu ally prevailed in the fecreta- ry of ftate's office.
was over-perfuaded to the contrary by Mr. Philip Carteret Webb, who was at that time follicitor to the Treafury and who urged him to make the warrant general, becaufe, he faid, it had been the conftant ufage of former fecretaries of ftate to frame their warrants in that manner, as indeed he afterwards proved to the world that it had been, by publishing a collection of warrants iflued by different fecretaries of ftate on various occafions in almoft every reign for the preceding hundred years, or from the year 1062, if my memory does not deceive me, of which the greater part were drawn up in that vague and ge neral manner. This may, perhaps, be lufficient to exculpate the late Lord Ha lifax j but it ferves ftrongly to prove the violent fpirit which has ufually prevailed in the perfons who have held the office of fe- cretary of ftate, fmce it (hews that for a hundred years together they have taken upon them to act, in the bufmefs of arrefting ftatc- offenders, in a manner that bids open defiance to the firft principles of law and juftice. And this they have done too without ever
having
t 249 ]
: "
i having been clearly inverted by any ftatute Thc
° \ J J nes of ftatc
of the kingdom with any power of arrefting have never
• . been clearly
men at all, even by warrants that name, or inverted with defcribe exactly, the perfons who are to be a P°wer of
J arrefting men
arrefted by them, and that are grounded at all, even by
. ~ . r regular war-
upon previous informations or credible wit- rants. nefTes upon oath ; and certainly without hav ing any fuch authority by virtue of the old common law, or general ufage of England from time immemorial, becaufe the office of fecretary of ftate itfelf has not exifted long enough for that purpofe, being no older than the reign of Henry the 8th, which began in the year 1509, whereas, in order to be pof- feffed of fuch an authority by antient cuftom from time immemorial, it ought to have been poffeffed of it before the time of king Richard the ift, or about the year 1189. But the truth is, that the king's fecretaries of ftate are his clerks, or letter-writers, whofe bufmefs it is to make known his Majefty's pleafure to his ambaffadors in foreign courts, or to the ambaffadors of foreign courts at his Majefty's court, or to his jVIajefty's fubjeds' m his own dominions on various occafions, but are not, or, at lead, were not originally, Voi,. II, K k hi*
[ 250 ]
his Majefty's magiftrates, or the delegates of his judicial power for the purpofe of admi- niftering juftice in his name and behalf in any refpecl, and therefore ought not to arreft ftate-offenders any more than any other offenders, or any more than they ought to try them for their offences and condemn them to punifhment, as is done by real magiftrates. For the arrefting, trying, and condemning men for offences againft the laws are, all of them, branches of the judicial power of the Crown, and ought therefore to be exercifed only by the known magiftrates of the king dom, to wit, the judges and juftices of oyer and terminer, and juftices of the peace, who are regularly inverted with competent autho rity for that purpofe by commiffions under Nor are the the great feal. And, as to the king's me£* ge"f ^optr ~ fengers, they are not the proper minifterial officers to officers of iuftice, like meriffs and conftables,
execute fuch *
warrants. but are only (as their name imports) fervants kept in the king's pay for the purpofe of car rying meffages for him with fidelity and expedition, either within the kingdom or without, as, for inftance, to carry difpatches to his Majefty's ambaffadors in foreign coun-
tries,;
t 25' ] ,..,,.,;•
tries : fb that it feems doubtful whether even a legal warrant to arreft a man, ifTued by a known magiftrate, as a juftice of the peace or a judge of the court of King's Bench, can be legally executed by one of thefe mef- fengers, unlefs it be in thofe cafes, (if there are fuch,) in which it may be executed by any perfon whatfoever as well as by a flierirT or conftable, or other known miniflerial officer of juftice. You fee therefore that A threefold
« r i • . irregularity
there is a threefold irregularity grown up m has grown up the fecretary of ftate's office with refped to £ryth0cf this practice of arrefting men for ftate- office.| offences. In the firft place they have erected themfelves intojudicial officers, or magiftrates, for this purpofe ; in the fecond place they have made ufe of king's mefTengers, inftead of {herifTs, or conftables, or other known minifterial officers of juftice, to execute their warrants; and in the third place they have framed their warrants in a general manner, without naming the particular perfons they meant to have arrefted, and confining the warrants to them only, but leaving a liberty to the meflengers, who are to execute the warrants, to arreft any perfons whom they, Kk 2 the
The manner in which a prudent and moderate fe cretary of ftate ought to pro- t eed in the bufinefs of ar- refting ftate- offenders.
t 252 ]
the meffengers, fhall think, or fay that they think, to have been guilty of the offences in queflion. Thefe are ftrange licences that have crept into the practice of the fecretary of ftate's office, and they fufficiently {hew the violent fpirit that has prevailed in it. For, if a fpirit of moderation and legal caution had prevailed in it, their method of proceed ing would undoubtedly have been as follows. When any offence againfl the ftate had been committed, (whether it were high treafon or any leifer offence, fuch as a feditious libel,) they would have received and procured all the information they could get at concerning both the offence itfelf and the perfons who had committed it ; and, if they had thought that information fufficient to fupport a profe- cution and produce the conviction and punifh- ment of the offenders, or even, if they had thought it fufficient to juftify the arrefting and imprifoning them for a time, in order to prevent the execution of their dangerous de- figns, and in expectation of further proof againfl them before their trials mould come on ; they would have laid it before the chief juflice of the King's Bench, or before fome
difcrect
[ 253 1
difcreet and trufty juftice of the peace, and have defined him, (if he thought the inform ation fufficient, in point of law, to juftify the arrefting and imprifoning the offenders,) to fend for the witneffes who had given the information, and to examine them himfelf upon their oaths, fo as to take their informa tion from their own mouths and upon oath, and then to iffue his warrant in due form of law to fome conftable, or other fit mini- fterial officer of juftice, to arreft the offenders and commit them to the proper prifons. This would have been the conduct of pru dent and moderate men in the office of fecre- tary of irate, who had had a tender regard for the laws and liberties of their country ; and it would have contributed full as much as the other way of proceeding, to the dif- covery and punifhment of real offenders, without endangering the fafety of innocent perfons, or gradually tending to introduce a practice of arbitrary imprifonment at the < pleafure of the king's miniflers of (late. And accordingly we find in a very able ar gument of Sir Bartholomew Shower, (who was aji eminent lawyer in king William's
reign,)
[ 254 }
reign,) upon this fubjeft of the pretended power of fecretaries of ftate to commit offend-
ers to Prir°n> that Mr- Henry Coventry, a gen- Ssc. Coventry tleman of great prudence and ability, who was
oo thofe oc-
cafions. fecretary of ftate about the middle of king
Charles the 2d's reign, did fcruple to exercife this power, of committing offenders to prifon, by virtue of his office of fecretary of ftate alone, and, by the advice of Sir William Jones, the mod learned lawyer of his time, procured him- felf to be made ajuftice of the peace, and took the necefTary oath to qualify himfelf to act as fuch, in order that he might be enabled to make fuch commitments legally, when the bufinefs of his office of fecretary of ftate fhould give him occalion to do fo. And Sir Bartholomew fays further in the fame argu-
In the year ment that fo lately as in the year 1678,
1678 the chief J _ J '
juftice of the (which was within his own memory,) when was! pSpiiedCt» the popilh plot had increafed the number of for tke pur- prjfoners to a wonderful decree, it was noto-
pofc or arreft- f
rng gate- of- rioufly known that Sir William Scroggs,
tenders. . . . . r . n. r .
who was at that time chief juitice or the court of King's Bench, was often fent for to Whitehall (that is, to the king's palace, where the privy council met,) to examine,
and
f 255 ]
and commit, and grant warrants : and that of late years, (that is, for fome years before die year 1695, when this argument was de livered,) the principal fecretaries of {late had thrown that burthen, of examining and com mitting offenders to prifon, off from them- felves upon their under-fecretaries, who had been fworn juftices of the peace j and that Mr. BrkJgeman, (who was at that time one of the under-fecretaries of ftate,) had ac cordingly very often executed the office of a juftice of the peace at Whitehall. There are many other things in that argument of Sir Bartholomew Shower upon this fubject, that are extreamly curious and interefting, and that prove very clearly, in my apprehen- fion, that a fecretary of ftate, in his capacity of fecretary of ftate alone, or without being a juftice of the peace, had no legal authority to commit any man to prifon for any crime, however great and however pofitively charged, by any warrant, however particular and exac"r; and much lefs by a general warrant. But for thefe matters I muft refer you to the argument itfelf, which is to be found in the
fourth
Conclufion concerning the general temper and fpirit that has prevailed in the fecretary •f ftate's of fice.
fourth volume of the State Trials, page 554, &c. in the report of the proceedings between the King and Kendal and Roe, who had been committed to prifon for high treafon.— But, I believe, I have faid enough upon this fubjedt to convince you, that, notwithftanding the prudence and moderation of Secretary Coventry, and, perhaps, fome other gentle men who have held the office of fecretary of ftate in England, there has, upon the whole, been a propenfity in thofe officers to enlarge the powers of their office, and to difregard, in the conduct of publick bufmefs, the ftridl: reftraints with which the law has circumfcribed, and, as they would call it, fettered, the exercife of the royal authority.
FRENCHMAN.
fee very plainly the fpirit by which they
. J J
It is not unlike a
Refembiance
ef the faid fpi-
rittoa maxim have been governed.
vailed ?nPthe n^xim that has prevailed, (as I have heard)
French go- jn fae prench government, to which I was
vercmcm. ^ °
formerly fubjecl ; though, fortunately for Great-Britain, it has not been carried in that kingdom to near fogreatan extent as in France.
This
[ 257 I
This maxim is, that the king of France ads ,Oft^e Fr,ench
king sordina-
in the government of his kingdom, on dif- ry and extra- ferent occafions, in two diftinct capacities, paci"ieZ his ordinary capacity and his extraordinary capacity. In his ordinary capacity he exer- cifes his power by certain known rules and certain known magiftrates, fuch as the offi cers of his parliaments and other courts of juftice, and other ordinary magiftrates, whofe jurifdidions are known and circumfcribed by the known laws of the kingdom. But in his extra-ordinary capacity he exercifes his power in fuch manner, and by the interven tion of fuch perfons, as he thinks proper ;— - fometimes flopping the regular proceedings of courts of juftice, even in civil caufes, by fpecial orders fent to the courts for that pur-
pofe, which they dare not difobey ; at
other times appointing new and fpecial jurif- tdidions, or perfons, to try particular caufes or perfons, who would otherwife be tried in the ordinary courts of jufiicej — . — and very frequently imprifoning perfons, by letters .de caclxt> that is, by letters, or orders, undt:r his fignet and fign-manual, and which are executed oftentimes by officers of hjs army, VOL. II. L 1 for
for fuch length of time, and in fuch place?, as he thinks fit, when, perhaps, by the ordi* nary courfe of juftice, as it is adminiftered by the ordinary magiftrates of the kingdom, the perfons fo treated would not be liable to His power of fa imprifoned at all. This dodrine of a
adins; m his
extraordinary double capacity, in which the king of France may a&» ^as oeen tne ^urcc of great hard-
°.[morc {hips and opprefilons in that kingdom, and the people of indeed, one may fay, of all the oppreffions
France than . _..-. , . . n
his exercife of tnat nave been practited in it agaimt parti-
the whole le- jar ^ ^ tjiat ^^g ])een obnOXiOUS tO tll« giflative au
thority by his court or minifters, though bodies of men have
pablic edids. ... - n\ j t_
lometimes been unjuitly created by means or fevere publick edicls formally promulged by the kings of France in their character of le- giflators of that kingdom. It is true indeed that this latter character has been ufurped by them, or afiumed without the confent of the people, within the two or three laft cen turies, and that in former times they exer- cifed their legiilative authority in conjunction with the States-General of France, afiembied for the purpofe, in the fame manner as our own gracious fovereign exercifes the like authority in conjunction with the parliament
of
of Great-Britain. But, however, the exer- cife of this ufurped power of legiilation is a much more tolerable ipecies of oppreffion than that other, which arifes from the doc trine of the king's having a right to act in his extra-ordinary capacity, and to employ extra-ordinary inftruments of his royal will, whenever he thinks fit; becaufe in all publick edicts that concern whole bodies of men, it is probable that, though they may be fome- times very detrimental to the publick welfare, yet fome degree of decency, at leaft, and fome appearance of reaibn and juftice, will be preferved, in order to preferve, in fome degree, the good opinion and reverence of the people, without which no government can be long fecure. It would therefore be a prodigious improvement of the condition of the fubjects of the king of France, if he would give up his power of ading in his extra-ordinary capacity and by the afliftance of extra-ordinary inftruments, though he Should retain the full power of making fuch new laws, and impofing fuch taxes, as he thought fit, by his fingle authority by means ff his publick edicts, But this is ftill more LI 2 to
Everyattempt of the Crown to aft ' in an extraordinary capacity ought, in a free country like England, to be oppofed "with vigour.
to be infifted on in a country, which, like Great-Britain, can boaft of a free government. For in fuch a country the fmalleft attempt in the fervants of the Crown to introduce this doctrine of a power in the king to act in aft extra-ordinary capacity, or by extra-ordinary inftruments of his royal pleafure initead of the ordinary magistrates and officers of juftice, ought to be univerfally dreaded and dctefted, and oppofed with the utmoft vigour that the laws will allow. And upon this account I am lorry to hear that the fecretaries of flate in England have been tamely permitted to aflume to themlelves the power of iffuing warrants to commit offenders to prifon, and to employ the king's meffengers, inflead of the fheriffs and conftables, in the execution ©f them, without being authorized to do fo by fome act of parliament. It is a practice
of a fufpicious and dangerous tendency.
But now I beg you would come back to the fubject we were before considering, to wit, the king's inftructions to his governours of provinces, and let me know by what reafon you fuppofe the minifters of ftate in England have fometimes been induced to advife their
fovereigns
[ 26' I
fovereigns to delegate fome powers of govern ment to their governours of provinces by fuch instructions under the fignet and fign-manual, rather than by their publick commiilions, or letters patent, under the great feal.
ENGLISHMAN.
The only way that I can account for this practice is by fuppofing that minifters of ftate, when they have been difpofed to engage in meafures refpecting his Majefty's American provinces, that were not perfectly, or mani- feftly, agreeable to law, or that, though agreeable to law, were neverthelefs of an offeniive or alarming nature, have thought it a fafer and quieter way of proceeding to give the governours of thofe provinces the necefTary powers and directions for fuch pur- pofes by private inftructions under the king's fignet and fign-manual than by the more folemn and publick method of letters patent under the great feal. By this means they have avoided the objections to them which might have arifen from thofe two great law- officers, the lord chancellor and the king's attorney-general, by whom all letters patent
under
A conje&ure concerning the motives that may have given rife to the practice of delegating fome of th» powers of go vernment to governours of provinces by inftruftions under the fig. net and fign- manual.
[
under the "great feal are infpedted and exa- mined before they pafs, but who have nothing to do with inftru&ions under the fignet and fign-.manual : and by this means alfb the powers fo given to governours may be kept from the knowledge of the people of their refpedtive provinces, if not wholly, yet at leaft for a time, namely, till the governours find occafion to make ufe of them ; whereas, if they were inferted in the commiffions to the governours under the great feal, which are publickly read to the people at large im mediately upon every governour's arriva] in his province, and are afterwards recorded in the office of the regifter, or clerk of the en rollments, of the province, to be there in- ipecled by every perfon that is delirous of reading them, they would immediately be come the objedt of the people's attention, and might give them fome uneafmefs and fpread an alarm amongft them. Accor- The ccndnft dingly we fee in the cafe of our own province
of the Crown of Quebeck, that, fo long as the delegating
in Atdelega- .
tionofaiimi- the powers or Icgillation to the governour
r ^
' an^ council only, without an aficmbly of
'
- •.
po\\er to t,e t]ie people, was a matter of a doubtful and
goveinour
and council of delicate
the province oT Quebeck, vritficnt an nfTembly, \-y an irntnfticji ujidci the
is a cor.firmation ot tbc laid cot?jc-«Hv;ve.
[ 263 I
delicate nature, not clearly and manifeftly within the compafs of the king's legal pre rogative, (which was the cafe until the late Quebeck-acl:,) his Majefty's minifters of ftate thought fit to advife his Majcfty to delegate thefe powers to his fucceffive governours of this province, General Carleton and General Murray, only by an inftruction under his fignet and fign-manual, which accompanied their refpedive commiffions in the years 1 763 and 1 76 8, but not to mention them in the commiflions themfelves under the great feal, which contained only the common claufe for delegating the powers of legiflation to the governour, council, and affembly. And this precaution was thought neceflary to be ufed, notwithftanding the power of leglflation thus delegated by a private inftruction, to the governour and council only, was of a much narrower extent, (as we have already ob- ferved,) than that which ivas delegated to the governour, council, and afTcmbly, by the commiffion, not being (as that was) a ge neral point r to make laws, jlatutcs> and ordi nances for the peace t welfare, and good govern ment of the province, but only an authority is
tnakt
[ a64 ]
make fuch rule 3 and regulations as Jlxuld ap~ .pear to be neceffary for the peace, order ; and good government of the faid province j taking care that nothing be pajjed, or done, that Jhall any ways tend to affeft the lije, limb, or liberty of the fubjett, or to the impofmg any duties or taxes. This was an authority of fo very narrow an extent that it could hardly be made to anfwer the purpofes of good govern ment in the province ; becaufe it is alrnoft impoffible to make an effectual regulation upon any fubject without in fome degree affecting, if not the lives and limbs, yet at lead the liberty of the perfons who are to be bound by it. Yet, narrow as this autho rity is, you fee that his Majcfty did not think proper to delegate it to the governour and council of the province by his letters patent under the great feal, but only by a When the private inftruction. But, when the .act of
Quebeck-aa
was pafled, a parliament for the government of the pro- ffeakgifl1ive vince of Quebeck had clearly and pofitively power was de- enabled his Maiefty to appoint a council in
legated to the * *
govemourand the province, who fhould have power (as cSauf" in die ^e act expreffes it) to make ordinances for tie governor's psace, welj caret and good government of the faid
under the great feaL
r 265 i
province, with the confent of his Majeftyi governour, or, in his abfence, of the lieutenant- governour, or commander in chief for the time being, and a new commiffion was to be given to general Carleton, grounded on the faid act, this legiflative authority was delegated to the governour and council in a plain, and exprefs, and ample, manner by a claufe in the commiffion under the great feal, juft as in the former commiffion s the fame authority had been delegated to the governours, coun cils, and aflemblies. This, I think, is fuffi- cient to mew that, when recourfe has been had to the fignet and iign-manual for the delegation of any powers of government to the governours of provinces, it has been in cafes in which doubts have probably been entertained by the king's minifters concerning the legal right of the Crown to delegate them, at all, or in which, at lead, it was appre hended that the open delegation of them by the commiffions under the great feal was likely to give offence, or create uneafmefs, in the provinces in which they were to be exercifed. And, as for the words of refe rence to inftruclions under the fignet and VOL, II. M m fign-
A conjecture concerning the reafon of inferring in the commiffions of governours of provinces under the great feal a claufe of refe rence to pow ers to be dele gated to them by inftruftions under the fig- net and fign- manual.
It would be more juft and prudent to delegate no powers of go vernment any other way than by an in- ilrument un der the great feal.
[ 266 ]
fign-manual, which we have before obferved to be inierted in the commiffions of go vernours, they feem to be put there in order to give to the inftructions, fo referred to, an appearance of partaking of the authority of the commiflion under the great feal, in which the faid reference is made j and confequently they feem to imply a kind of acknowledge ment of the legal infufficiency of the fignet and fign-manual alone to convey a delega tion of the powers contained in the inftruc- tions. But thefe appear to me to be poor fliifts and unhandfome arts of government, and fuch as tend to no good purpofe. It would, furely, be better to proceed in a plain and open way -, that is, for his Majefly, in thofe cafes in which he, in his royal wif- dom, mould think fit to delegate to his governours of provinces any uncommon powers of government in their refpeclive provinces, to confider firft, whether, or no, the Crown was legally in titled to exercife thofe powers itfelf and to delegate them to any other perfon j and, if it had a clear legal right to do fo, in fuch cafe to delegate fuch powers to the faid governours by exprefs
claufes
t 267 ]
claufes in his letters patent to them under the great feal ; but, if doubts could be enter tained concerning: the right of the Crown to And>ifdo"bt*
are entertam-
exercife or delegate fuch powers, to have ed concerning
i- i r * • i'r 11 gal right
recourfe to the lupream and mdifputable of the Crown authority of parliament to caufe the faid go- £tend§£w! vernours to be inverted with the faid ne- ers« recourfe
fhould be had
ceiiary powers, as has been done with refpect to the autho- to this province by the late Quebeck-aft. For nobody, I prefume, will deny that, if it were fit at all to invert the governour and council of this province, without an alTembly of the people, with a power of making laws for it, the proper method of doing this was by an act of parliament. The jurtice and utility of that, and many other of the pro- vifions of that acl, are what, indeed, we cannot eafily be perfuaded of: but, if they had been juft and ufeful to us, the meafurc itfelf of eftablifliing them by the authority of parliament muft be acknowledged to be right. And the fame thing ought to be done in every other cafe in which the king thinks any meafures to be neceflary to be taken in a province, which are not clearly, (bsyond even the fhadow of a doubt,) within the M m 2 compafs
t 268 ]
compafs of the king's legal prerogative. And, as for inftructions under the king's fignet and fign-manual, they fhould be em ployed for their original and proper purpofe, which is that of conveying to his Majefty's governours the directions he thinks fit to give them concerning the manner in which he would have them ufe the powers of go vernment which he has before legally dele gated to them under the great feal j and for no other purpofe whatfoever.
Thefe are the beft conjectures I can make, (for, I acknowledge, they are but conjectures,) concerning the reafons that may have induced the minifters of ftate on fome occafions to advife the Crown to delegate the powers of government to governours of provinces, by inftructions under the fignet and fign- ma nual, inftead of the commiffions, or letters patent under the great feal.
FRENCHMAN.
They feem, however, to be plaufible con jectures, and will account tolerably well for this irregular and unjustifiable practice. And,
as
as to thofe words in the governour's com- miffion which refer to the inftruclions under the fignet and iign-manual, and feem to be, intended to communicate to them in an in direct manner the authority of the great feal, they enable me to account for a difficulty which had before occurred to me relating to the ordinances of this province pafled by the Of the onfi-
, .. , . . . .,, nances paflei
governour and council during the adminuira- by the gover- tion of General Murray. For I had obferved ^jj^f
that in the pre-ambles to feveral of thofe Quebeck be.
.. -./iii i i * fore th« late
ordinances it is itated that they are made by Quebeck-ad.
the faid governour, by the advice, and with the confent of his Majefty's council of the province, and by virtue of the power and authority to him given by his Majeftys letters patent under the great Jeal of Great-Brit ai?^i notwithftanding (as you fome time fince ob ferved) there was no claufe in his commiffion under the great feal that exprefsly gave him fuch a power. This feemed to me extreamly ftrange ; and I did not know how to account for it. But now I fuppofe that the perfons who framed and pafled thofe ordinances, rnuft have alluded to thofe words in the commiffion under the great leal which refer
to
[ 270 ]
to the powers contained in the inftrudions, amongft which there was a power to exer- cife a certain limited legiflative authority by the advice and confent of the council only, and muft have conlidered thofe powers in the inftructions as being, in a manner, adopted, by fuch reference, into the commiflion, and made to partake of its authority.
ENGLISHMAN.
There can be no other way of reconciling with truth the aflertion you mention as hav ing been made in the pre-ambles of governour Murray's ordinances. But, pray, is this aflertion to be found in the pre-ambles of all thofe ordinances, or only of fame of them ? for I had imagined that in fome of thofe ordinances the governour had fairly ftated in the pre-amble that his power of making laws with the confent of the council of the province only, had been delegated to him only by his inftrucllons. I beg you would therefore take down that little thin folio vo lume of- our provincial ordinances, and exa mine the pre-ambles of them, and tell me how this is,
FRENCH-
FRENCHMAN.
I will do fo with pleafure : but I am confident that in many of them the pre ambles will be found to be as I have ftated them. But the book will determine.—— The firft ordinance is exprefTed in the manner you have fuppofed, and ftates the legiflative authority of the governour and council of the province to have been communicated by the king's inftruclions. It is intitled, " An ordinance for regulating and ejlablifoing the currency of the province :" and the preamble of it is as follows j Whereas his mofl Sacred Majefty, by his inftruttions to his Excellency, bearing date at Saint James's the feventh day of December, one thoufand, /even hundred, and fixty -three, hath been pie a fed to authorize and impower his faid Excellency, 'with the advice and qffijlance of his Majefty s council, to make rules and regulations and ordinances, for the better ordering and well governing of this his province of Quebeck, &c. This ordi nance is dated September the i4th, 1764.
t 272 ]
The next ordinance that occurs is the great ordinance of Sept. 17, 1764, for efta- blifhing courts of judicature in the province. In the pre-amble to this ordinance there are thefe words. His Excellency, the governour ^ by and with, the advice, confent, and ajjijlance of his Majejlys council, and by virtue of the fower and authority to him given by his Ma- jeftys letters patent under the great feal of Great-Britain, hath thought fit to ordain and declare, &c. Here, you fee, the governour affirms, that he afts by virtue of a power given him under the great feal, as I had Htppofed. For I had this ordinance princi pally in my mind, when I faid that fuch an affertion was contained in fome of the pre ambles to the provincial ordinances j this ordinance, from its great importance and our frequent occalion to refer to it, having made a deeper imprefllon on my memory than any other.
ENGLISHMAN.
I muft, however, obferve that the governour had more reafcn for aflerting that he acted by virtue of an authority under the great feal in pafiing this ordinance than in palling any other
ordinance j
[ 273 ]
ordinance ; becaufe there was a claufe in his commiffion of governour under the great feal which exprefsly authorized him to erect courts of judicature in the province with the advice and confent of the council only. This claufe was in thefe words. .And •we. do by thefe prefents give and grant unto you , the faid 'James Murray, full power and authority, with the advice and confent of our faid coun~ €tl; to ereti, conflitute, and cjlablijl) fetch and fo many courts of judicature and publickjuflice 'within our faid province under your govern ment as you and they foall think fit and necef- fary for the hearing and determining of all caufes, as 'well criminal as civil, according to law and equity, and for awarding execution thereupon, with all reajonable and necejfary powers, authorities, fees, and privileges, be longing thereunto j as alfo to appoint and corn- mi ffionate Jit perfons in the fever al parts of your government to adminijler the oaths men tioned in the ajorefaid ccJy intitled, " An aff 1 for the further fecurity of his Majejlys {t perfon and government, and the fucce/Jim of the crown in the heirs of the late prince ft " Sophia, being Protejlants, and extinguiflnng VOL, II. N n <{ the.
[ 274 ]
" the hopes of the pretended prince of Wales > " and his open and fecret abettors ;" as alfo to tender and admlnlfler the aforefaid declara tion to fuch perfom belonging to the /aid courts as Jhall be obliged to take the fame. By this claufe in the governour's commiffion it ap pears, that, fo far as the faid ordinance is employed in the ereclion of courts of juftice in the province, it may truely be faid to have been pafled by virtue of an authority com municated for that purpofe to the governour by his letters patent under the great feal. But, if I remember right, it does more than eftablim courts of juftice : and, if it does, it cannot in thofe further particulars be faid to be pafled by virtue of fuch an authority. — But I beg you would go on to the pre ambles of the following ordinances.
FRENCHMAN.
The next, or third, ordinance in the book is an ordinance for declaring what fliall be deemed a due publication of the ordinances of the province of Quebeck. In this ordi nance there are thefe words. His Excellency the governour, by and with the advice, con-
[ 2/5 ]
and ajjiflance of his Majeftys council^ and by virtue of the power and authority to him given by his Majefty's letters patent under the great Jeal of Great-Britain^ hath thought ft to ordain and declare^ &c.
The fame words are ufed alfo in the fourth ordinance, which relates to the affize of bread and the afcertaining the ftandard of weights and meafures in the province of Quebeck ; and in the fifth ordinance, which was made to ratify and confirm the decrees of the feveral courts of juftice eftablimed in the province in the time of the military go vernment of it j and in another ordinance made to prevent foreftalling the market, and frauds by butchers, and dated on the 3d day of November in the fame year 1764; and in another ordinance made on the 6th day of the fame month of November, to prevent the diforderly riding of horfes, and driving carts or other carriages within the towns of the province of Quebeck. In all the other ordinances in the book the words, " and by virtue of the power and authority '. to him given by his Majeftys letters patent
N n 2 under
••
End of the re.
marks on the
nature of in-
ftru&ions to
of
fignet and
fign-mannal,
begun in page
under the great fed" are omitted. Here are therefore four ordinances, belides that for ellablifhing courts of judicature in the pro vince, in which it is afferted by the governour and council of this province, that they were authorized to make them by his Majefty's letters patent under the great feal. And confequently, as there is no claufe in the governour's commiffion under the great feal which irnpowers him to make ordinances with the confent of the council only, with out an aflembly of the people, we muft fup- pofe that the gentlemen who made this siTertion, grounded it on thofe words in the eommiffion, which we have already fpoken of, and which refer to the powers of government which then were, or afterwards fhould be, de- jegate(| to the governour by his inftruclions. —
o o J
gut I am now fatisfied with what you have faid
% f
concerning the nature or a governour s com-
miffion under the Sreat feal of Great-Britain ancl his inftrudions under the king's fignet
. ^
and fign-manual, and am fully confirmed in my former opinion of the proper difference between them, namely, that the commiflion alone is the inilrument by which the powers
of
I 277 ]
of government can be legally delegated to a governour of a province, and that the in- ftruclions under the fignet and fign-manual ought only to contain directions to his Ma- jefty's governours in what manner, and under what reftrictions, his Majefty would have them exercife the faid powers that are legally delegated to them under the great feal. I therefore defire you would now 'proceed to ftate to me what Lord Mansfield faid con cerning the remaining hiftorical examples he adduced of the king's exercifing the powers of legiilation over conquered countries be longing to the crown of Great -Britain; which were, if 1 remember right, thofe of the ifland of Minorca and the town of Gib raltar in Spain. I do not recollect that you mentioned any other places as having been cited by him on this occafion, befides thole which we have already confidered.
ENGLISHMAN.
Your memory does not deceive you. Thefe were the only remaining inftances his lord- fhip mentioned in this hiftorical part of his opinion, though in the fubfequent part of it,
which
'irr.vfL bioi
wiO/v i/vL-<
ing
fupport of the king's fole le- giflative au thority over conquered countries.
iord Manf- field's words concerning Gibraltar.
His words concerning Minorca.
which recites the opinions of learned lawyers in fupport of the king's legiflative authority over conquered countries, he touches upon the cafe of Jamaica. What he fays of Gib raltar is in thefe words. " With regard to " the inhabitants of Gibraltar, their pro- "; perty and trade, the king has, ever fmce " that conqueft, made orders and rcgula- " tions fuitable to the condition of thole who " live, or trade, or enjoy property in that " garrifoned town."
And with refpecl to Minorca his words are as follows. " Mr. Attorney-General " alluded to a variety of inftances, and " feveral very lately, that is, within thefe " twenty years, or thereabouts, in which " the king had exercifed legiflation in Mi- " norca. In Minorca it is laid there are a " great number of inhabitants of worth ; " and that a great trade is carried on. If " the king does it as coming into the place " of the king of Spain, becaufe their old " conftitution continues, the fame argument " holds here : for before the 7th of Oclo- ^ ber, 1763, the conftitution of Grenada
*c continued,
[ 279 ]
" continued, and the king flood in the place tc of their former fovereign." This is all that was faid by Lord Mansfield concerning Gibraltar and Minorca.
FRENCHMAN.
Prav, is the fact as it is here ftated ? Have ,of the Ieg'lf-
lative power
the kings of Great-Britain, fince the conqueft that has been of Gibraltar and Minorca, made laws for the dbwTro *
inhabitants of them by their own fingle °yer thefe
' o places.
authority, or without the concurrence of parliament ?
ENGLISHMAN.
I believe it is true that they have made fome fort of laws for them on particular occafions, by their orders in their privy- councils. But the laws fb made have not been, as far as I can find, of a very im portant or interefting nature. And, I be lieve, they have never impofed taxes on them. But, in truth, thofe places have always been confidered as mere garrifon-towns, or fort- refTes built for the defence of the harbours of Gibraltar and Port Mahon, which have been retained by Great-Britain fince the peace of
Utrecht
{ 280 ]
Utrecht for the fake of her trade to the Medi terranean ; and little, or no, attention has been paid by the people of England to the civil go- t)f Gibraltar, vernment of them. Indeed Gibraltar is a mere town, without an inch of territory belonging to it without the walls j and its inhabitants, (exclulive of the Britim garrifon,) amount to no more than two or three thoufand fouls :
' O' IH i1 w ' * t J • ff * -1 %^W * ' I f*l»;-!4'x
and the garrifon ufually confifts of three thoufand, five hundred, men. The other inhabitants therefore may be confidered ; — and, I believe, they ufually have been con iidered ; — as a fort of appendage to the gar rifon, which is governed by the fyilem of martial law eftablifhed every year by the Britim parliament by the act for preventing mutiny and defertion. However, I believe it is true, as Lord Mansfield ftated in the words above-cited, that the kings of Great- Britain have, ever fmce the conqueft of Gib raltar, made orders and regulations fuitable to the condition of thofe who live, or trade, or enjoy property in that town. And I fur ther believe that theie orders have been made by them in their privy-council. But I am not perfectly informed upon this (ubjedt.
As
f
As to Minorca, that is an example of fomewhat greater importance than Gibraltar, becaufe it is a place of much greater extent, and contains a much greater number of in~ habitants. For it is a tolerably fruitful iiland, of about thirty-three miles in length, and ten miles in breadth, and contains about twenty thoufand inhabitants, befides the Bri- ti(h garrifon of fort St. Philip's, which de fends the harbour of Mahon. Yet even this country has been almoft intirely ne glected by Great-Britain as to its internal cultivation and government, and confidered (like Gibraltar) as an appendage to St. Philip's caftle, which defends the harbour of Mahon; and no civil governour has been ever appointed over it by the king. The Spanifh laws, both criminal and civil, have been permitted to continue in it, and no attempt has been made by the Englifli government to introduce gently and gradually, and with the confent of the inhabitants of the ifland, any of the Englim laws amongft them, nor the pro- feffion of the proteftant religion. The con- fequence has been that they have continued bigotted Roman-Catholicks ever fmce they
VOL, II. O o have
Of Mmorca.
The internal cultivation and civil go vernment of this ifland hav* been much neglefted by Great Britain,
111 confequen- ces of the laid
[ 282 ]
have been fubjedts of Great-Britain, and have been ill-difpofed to the Englifh government upon the ground of religion and from an averiion to hereticks, which has been con- ftantly cherimed in them by their priefts and by the bifhop of the neighbouring Spanifli ifland of Majorca, who (though a fubject of the king of Spain) has been permitted to come into the ifland of Minorca, and exercifc his epifcopal jurifdiction over its inhabitants. And in the beginning of the laft war with France, I remember, it was faid we found the ill effects of the aforefaid prejudices againft our religion and government in the general difmclination of the natives to arTifl: the Britifh garrifon in defending St. Philip's caftle againft the French army that inverted it : infomuch that the ill policy of the Britifh miniftry, with refpect to the government of the ifland of Minorca, both before and fmce the late war, (for, notwithstanding the experience they had in the late war of the difaffedion of the inhabitants arifing from the aforefaid prejudices, they have not altered their manner of governing it ;) has been the object of general cenfure amc-ngft fuch perfons as have
had
had occafion to confider it. This example, therefore, of a country fo much neglected as Minorca has been by the Britifli government, I muft needs confider as having but little weight in determining the prefent queftion concerning the legiflative authority of the crown of Great -Britain over conquered countries.
This ncg'eft renders this ifland an ex ample of lefs weight & au thority than it would other- wife be, with refpecl to the preient quef tion.
I muft alfo obferve that the legfiflative Ofthefubjefts
on which the
authority which the kings of Great-Britain Crown has
, T ^ i r - *• exercifed a le-
have exercifed over the people of Minorca gjnalive au- by their orders in their privy-councils, (for "1
that is the way in which this authority has been exercifed ;) has been only on fubjedts of fmall importance. At leaft I have never heard of any others j though it is probable that, if there had been any greater exertions of legiflative authority by the Crown, they would have been mentioned on the late trial of the action of Fabrigar,, an inhabitant of the fuburbs of St. Philip's caftle in Minorca, againft Lieutenant-general Moftyn, the go- vernour of the ifland, for imprisoning him and banifhing him from the illand ; becauie in that trial the unlimited power of the king O o 2 and
and his delegate, the governour, were much infifted on as a ground of j unification for General Moftyn. Yet it did not appear that the king had ever either impofed taxes on the inhabitants of Minorca by his proclama tions, (as he did in July, 1764, on the inhabitants of the ifland of Grenada,) or created any new felonies, or capital crimes amongft them, or made any other laws of great importance. The only inftance of the exercife of the king's legiflative authority over that ifland that was mentioned in the courfe of that trial, was a certain order made by our late fovereign, king George the 2d, in his privy-council, in the year 1752, for regulating the price at which the inhabitants mould be permitted to fell their wines ; which was done by vefting a power in a certain publick officer, called a Jurat, in each of the four terminos, or diftricls, into which the whole ifland is divided, of fixing the price of them in his refpedive diftricl:. But, I prefurne, there have been many other orders of the king in council upon fubjecls of a fimilar nature, that is, relating to the police, or good order and publick conve nience,
nience, of the ifland, becaufe Mr. Wrightj (who had refided in the ifland in the capacity of fecretary to General Moftyn, the go- vernour,) teftified on that trial, " that, though the Minorquins are, in general, go verned by the Spanifh laws, yet the king in council, upon all occafions of application to him, ifTues out fuch orders as the cafe requires, and that the faid orders are recorded in the Royal court there, or the court of royal go- vernment, (which is the great criminal and civil court of the ifland,) and are as binding as any laws in the ifland," This is all that I could ever difcover concerning the legifla- tive authority exercifed by the Crown over the inhabitants of the ifland of Minorca. And it feems, I think, upon the whole to be but a limited and imperfect kind of legiflative authority, and by no means fufficient to fup- port the doctrine laid down by Lord Manf- field of a compleat legiflative authority over conquered countries in the Crown alone, except on fuch fubjecls as have been already fettled by ads of the Britifh parliament an tecedent to the conqueft of them. — And to this I muft add, as a further proof of the
oblcure
t 286 ]
Of the nncer- obfcure and unfettled ftate in which matters
tain itate or
the laws in the relating to the laws and government of that
faid ifland. . ,
mand are permitted to continue, the telti- mony that was given by another witnefs on the fame trial, who had refided a great num ber of years in the faid ifland, and muft there fore be fuppofed to have been well acquainted with it. This was Col. Patrick MacCullock, who faid he had gone firft to Minorca in the year 1736, and left it in the yeai 1750, and had gone to it again in May, 1763, and continued in it till May, 1 773. This gentle man teftified on that occafion, " that the Minorquins moft commonly pleaded the Spa- niih laws, which had been allowed them after the peace of Utrecht, but that, when the laws of England were convenient for them, they pleaded the laws of England ;— that however the law which moil: prevailed there was the Spanifh law ; — that, when the ifland was reftored to Great-Britain by the French after the late peace in 1763, he be lieved nothing at all was fettled with relation to the laws by which Minorca was to be governed, and that therefore the crown of Great-Britain was fuppofed to have received
the
[ 287 ]
the Minorquins under its government upon the fame footing as the French had held the dominion over them during the late war ; but that fince that time the Minorquins had made intereft with the king's minifters in England to have the fame laws and privileges reftored to them which had taken place before the iftand had been conquered by the French, that is, the Spanifh laws; and that the faid Spanifh laws had been accordingly reftored." This was the fubftance of colonel MacCullock's teftimony. Now in a country Conclusion
..... n , r fromthenceas
in which it is cuftomary for the people fome- to the prefca; times to plead the English laws and fome- que times the Spanifli, as the one or the other fyftem happens beft to. fuit their temporary convenience, I muft needs think the ftate of the government too uncertain and confiifed " to be made a folid ground of argument in a queftion of fuch importance as this we are now examining, concerning the legislative authority of the Crown alone over countries acquired by conqueft.
FRENCH-
288
FRENCHMAN.
Indeed this example feems too weak a foundation to fupport fo weighty a fuper- ftruclure as that of a general and compleat legiflative authority in the king alone over all the countries acquired to the crown of Great- Britain by conqueft and ceffion, without any other reftriclions than thofe which arife from antecedent ads of parliament, in the manner Lord Mansfield has afTerted. And therefore I muft conclude that the whole of the hiflo- rical part of his argument in favour of this legiflative authority of the Crown is infuffi- cient for the purpofe, all the former in fiances he had adduced of the exercife of this autho rity, except thefe two laft of Gibraltar and Minorca, (to wit, thofe of Ireland, Wales, Berwick upon Tweed, Calais, Gafcony, and New- York,) having been before fhewn to be totally incapable of fupporting this pro- pofition, and fome of them to be even ad- verfe to it. We have therefore now got rid examination* (at leaft, to my fatis faction,) of two of Lord
the prece- Ma^fre^'s grounds of argument in fupport torical exam- of this doctrine, out of three, namely, of
pies, adduced ,
by Ld Manf- the
field as proofs of the fole legiflative authority of the Crown over conquered
countries.
f 289 ]
the ground of reafon and general principles of law, and the ground of historical examples. It remains that we examine his third ground of argument, which, you faid, (if I remem ber right,) was the authority of judges and other learned lawyers, who have occafionally declared themfelves to be of opinion that the Crown was pofTeiTed of this power of making laws, without the parliament, for the go vernment of conquered countries. I there fore now deiire you would inform me what my Lord Mansfield faid upon this head.
Of the opini ons of judges and other learned law yers, cited by Ld. 'viansrfeld in fupport of the king's fole legiflative au thority over conquered countnts.
ENGLISHMAN.
His words were as follows. u It is not jr^V) Manf-
neld s words
<c to be wondered at that an adjudged cafe upon this fub5
" in point is not to be found. No difpute Je
<c ever was ftarted before upon the king's
f* legiflative right over a conqueft. It never
u was denied in Weftminfter Hall ; it never
" was queftioned in parliament.
" Lord Coke's reoort of the arguments The °p'";on
1 . . of the indues
<l and refolutions of the judges in Calvin's as reported M
Lord Coke's report of Cs.1-
cafe lays it down as clear, that, if a king
come to a kingdom by conqueft (I
VOL. II. P p " omit
the ;th book of his repots.
I 290 ]
" omit the diftindion between a Chriftian " and Infidel kingdom ; which as to this " purpofe is wholly groundlefs, and moft " defer vedly exploded : but that ftrange " extra-judicial opinion of his as to a conqueft rr over a Pagan country will not make reafon " not to be reafon, and law not to be law, " as to the reft.) I fay, Lord Coke in that " cafe lays it down as clear, "* that, if a '" king come to a kingdom by conqueft, '" he may, at his pleafure, alter and change '" the laws of that kingdom : but, until <<c he doth make an alteration, the antient '" laws of that kingdom remain. But, if c" a king hath a kingdom by defcent, there, cct (feeing by the laws of the kingdom he "' doth inherit the kingdom,) he cannot '" change the laws of himfelf, without con- tc{ fent of parliament:'" tc In which words " it is plain that Lord Coke means to fpeak tc of his own country, in which there is a <f parliament." Lord Coke then goes on as " follows. <ct Alfo, if a king hath a king- '" dom by conqueft, as king Henry the "f fecond had Ireland, after king John had 1" given to them, (being under his obedi-
'" ence
c" ence and fubjeclion) the laws of England '" for the government of their native coun- '" try, no fucceeding king could alter the '" fame without parliament.'" " Which is <c very juft, and necefTarily implies that king " John himfelf could not alter the grant of " the laws of England.
" Befides this opinion of the judges in The opinion
of Sir Philip
" Calvin s cafe, the authority of two great Yorke and
l22>
" lawyers has been cited, who took the
" propofition for granted. And, thoueh the torney and
& ° folhcitor <;e-
" opinions of counfel, (whether acting offi- nerai to king " cially in a publick employment or in the Jty0rstnt the tc capacity of private lawyers,) are not pro- >'ear l/ " periy authority to found a decifion upon, " yet I mail cite them on this occafion, not c< to eftablim fo clear a point, but to mew " that, when it has been matter of legal cc inquiry, the anfwer which it has received " from gentlemen of eminent character and " abilities in the profeffion, has been imme- <c diate and without hefitation, and agreeable " to thefe principles. That opinion was as " follows. In the year 1722 the arTembly " of the ifland of Jamaica having rcfufed to P p 2 " grant
Cf 'grcntthe ufual fupplies, it was referred to <c Sir Philip Yorke and Sir Clement Wearg " (who were at that time the king's attorney " and follicitor general) to confider what t( could be done if the afTembly mould per- " fift in their refufal. They returned for " anfwer, "c That, if Jamaica was ftill to "' be coniidered as a conquered country, the <£< king had a right to lay taxes upon the c" inhabitants : but, if it was to be coniidered <<c in the fame light as the other colonies, "c no tax could be impofed upon the inha- "c bitants but by an afTembly of the ifland *" or by an aft of parliament."' By this " opinion of thofe able lawyers it appears, " that they held the diftinclion, in point of " law, between a conquered country and a " colony to be clear and indifputable : but " that the queftion, whether the iiland of " Jamaica, (to which the cafe before them " related) had remained in the ftate of a " conquered country, or had fince become " a colony, was a matter which they had
*c not examined. 1 have myfelf, upon
" former occafions, traced out the conm'tu- " tion of Jamaica, as far as there are books
" or
293 or papers in the publick offices, to enable A fllortf \c'
count of the
one to do (b. And I could not find that fettiement of
, V i i >n -t f the ifland of
any Spaniard remained upon the illand fo Jamaica, late as the Restoration : if there were any, they were very few. A gentleman who is well acquainted with the ftate of that ifland, and of whom (upon hearing this ifland mentioned in one of the arguments in this caufe,) I afked the queftion, in formed me, '" that he knew of no Spanifh names among the white inhabitants of Jamaica ; but that there were fome a- mongft the Negroes."' " The method of proceeding taken by the Crown wkh're- fpect to the government of that ifland was this. King Charles the fecond, foon after the Reftoration, invited people, by his pro clamation, to go and fettle there, promifing
them his protection ; he made grants
of land there ; and, for the government of it, he appointed at firft a governour and council only, but afterwards he granted a commiffion to the governour to call an affembly. The conftitution of every pro vince in America that is immediately under the king, (or is governed only by his com-
*e miffion,
[ 294 1
" miffion, without a charter,) has arifen in
" the fame manner, not by the grants,
" but by the commiffions to call aflemblies. ct And therefore, all the Spaniards having " left the ifland of Jamaica, or been driven " out of it, before the Reftoration, the firft " fettling of it after that period was by an " Englim colony, who, under the authority 11 of the king, planted a vacant ifland which " belonged to him in right of his crown j " as was the cafe with the iflands of St. " Helena and St. John's, which were rrien- " tioned by the attorney general in his argu-
fieUTs c^du' " ment in this caufe- To conclude there-
fionfromthefe « fore 5 A maxim of conftitutional law fup-
opinions. . .
c ported by the opinions of all the judges in " Calvin's cafe and of two fuch eminent men, " in modern times, as Sir Philip Yorke and " Sir Clement Wearg, will, I make no " doubt, acquire fome authority, even if " there were any thing which othervvife " made it doubtful. But, on the other fide, " no book, no faying of a judge, no opinion " of any counfel, publick or private, has " been cited ; no inftance has been found " in any period of our hiftory, where a
" doubt
[ 295 J
" doubt has been raifed concerning it. — — ^ " The counfel for the plaintiff in this action, " therefore, when they laboured this firft <c point for their client, muft be fuppofed to " have done fo only from a diffidence, or " uncertainty, concerning the opinion we " might entertain upon the fecond point, or " the effect of the king's proclamation of " October, 1763, by which he promifed the " people of Grenada that he would caufe '* an affembly of the freeholders to be fum- " moned in that ifland. But, with refpect " to this fecond point, we are, after full " confideration of the fubject, of opinion <c with the plaintiff, to wit, That before the " twentieth day of July, 1764, when the " letters patent eftablifliing the duty of four " and a half per cent, were iffued, the king " had, by his faid proclamation of October, <c 1763, precluded himfelf from the exer- <e cife of a legiflative authority over the ifland u of Grenada."
This is the whole of what Lord Mansfield faid in fupport of this legiflative authority of the Crown over conquered countries upon the grpund of the opinions of judges and
other
The opinion of the court of King's Bench withrefpeft to the operation of the king's proclamation of Oft. 1763*
other learned lawyers, in delivering that im portant judgement. How far it is conclufive, or fatisfaclory, upon the matter, I leave you to judge.
FRENCHMAN.
Why, truly, I cannot think that there is
fo much weight in thefe authorities as my
Lord Mansfield afcribes to them. For, as
A remark up- to the firft of them, if I underftand it right,
of thVjudges it feems rather to make againft the fuppofed
ated from right Of the Crown to make laws for con- talvin s cafe, *
quered countries, than to be favourable to itj
becaufe in the latter of the two paffages which he cited from Calvin's cafe in Lord Coke's Reports, it is exprefsly declared, " that, when once king John had given the " conquered people of Ireland the laws of " England for the government of their na- " tive country, no fucceeding king could fc alter the fame without parliament." Now, if that be true, it feems evident that the kings of England did not, in Lord Coke's opinion and that of the other judges who determined that oafe of Calvin, acquire, by the conquest of Ireland, a permanent right cf
legijlalion
[ 297 1
legijlation over it, fo as to. be able to make and unmake, and alter, tbe laws of it when ever, and in what manner foever, they mould think fit, (as the king and parliament of Ireland do conjointly,) but only a temporary right of abrogating the antient laws of Ireland and introducing, once for all, the laws of England in their ftead, which (as we have already *obferved) is a very different thing from the aforefaid proper and permanent legiflative authority. And, as to the other A remark on authority mentioned by Lord Mansfield, and sir Philip" ° fo much relied upon by him as of decifive X?rke and Sir
J Liement
importance on this queftion, to wit, the opi- Wearg in the nion of Sir Philip Yorke and Sir Clement Wearg, (the king's atttorney and follicitor general,) in the year 1 722, it muft indeed be allowed to be an authority in point to the queftion, becaufe thofe two learned gentle men feem to have meant to afcribe to the Crown the fame perfect and permanent fort of legiflative authority over Jamaica, in cafe it was ftili to be contidered as a conquered country, as Lord Mansfield has afcribed to it x with refpect to the ifland of Grenada before the proclamation of October, 1 763 : but yet I VOL. II. Q_q cannot
* Sec above, page 67.
[ 298 ]
cannot think it a very refpeclable authority, notwithstanding the great learning and emi nence of thofe gentlemen j partly, becaufe it feems to have been rather a hafty opinion, upon which they had beftowed very little confideration, fmce they did not take the pains to inquire whether Jamaica was to be ftill confidered as a conquered country, or whether, by events fubfequent to the conqueft of it, it was become a colony; and partly, becaufe it may well be fuppofed that perfons who ferve the Crown in the offices of attorney and follicitcr general, have, in all doubtful matters relating to the royal prerogative, a byafs on their minds in favour of it. This opinion therefore ought to be confidered as the hafty and ill-di- gefled teftimony of interefted witnefTes, and, as fuch, to be but little regarded.
ENGLISHMAN.
I look upon thefe two authorities in much the fame light as you do j and I more eipe- cially agree with you in what you have re marked concerning the latter of them, or the opinion of Sir Philip Yorke and Sir
Clement
[ 299 }
Clement Wearg in the year 1722. Perfons in their then ftations muft always be liable to the fufpicion of inclining a little to favour the prerogative of the Crown : and, as you well obferved, this opinion of theirs feems to have been given very haftily and with very little attention to the fubjedt, fmce they did not take care to inform themfelves con cerning the then prefent condition of Ja maica, fo as to determine whether it ought to be confidered as a conquer! or a colony, though this was abfolutely necefTary to make their opinion of any ufe to the minifters of flate who had confulted them. It mufl; however be confefled that, crude and hafty as this opinion feems to have been, it ferves to (hew that thofe two great lawyers had a general, loofe, floating, idea of the king's being the abfolute legiilator of all countries acquired by conquer!, which, (as I obferved to you in the beginning of our converfation,) was an opinion that had been adopted by a great many private lawyers, though I never could fee anv fufficiect foundation for it.
But,
Further re- But, as to the ether authority cited from
marks on the . } J
opinion of the Calvin s cafe, you would think it of ftill lefs frJJiTr^ivin'i confequence than you now do, if you knew
1 * <*Hl W AL V 1 11 J i J m
cafe- all the circumftances that accompany it in
Lord Coke's report of that cafe. For it is one of the moft vague and defultory and extra-judicial declarations upon a fubject of law that is any where to be met with in the Englifh law-books ; and this in a cafe in which the main decifion of the point itfelf, that was then in queftion before the court, was generally complained of as contrary to law and made with 'a view to gratify the humour of king James the ift, who was then upon the throne.
FRENCHMAN.
You raife my curiofity concerning this cafe of Calvin r which Lord Mansfield has quoted with fo much refpecl. I therefore beg you would give me a fhort account of it, and of the manner in which the paflage quoted by Lord Mansfield is introduced in it.
ENG-
t 301 ]
reigners.
ENGLISHMAN.
I will endeavour to fatisfy you upon this fubject as well as I am able, that we may thereby compleat our examination of Lord Mansfield's argument, in favour of this fup- pofed legiflative authority of the Crown over conquered countries, in as impartial and as ample a manner as poffible.
You mu ft know then, in the firft place, Of the law of
... . r i T-> i'/i England with
that it is a maxim or the bnglith law, that refpea to a- no alien, or foreigner, or perfon born out ns' c of the dominions of the crown of England, though he mould chufe to come and fettle in England, is capable of purchafing land there. This maxim has indeed a few natural exceptions, fuch as thofe of the children of Englishmen employed in foreign embaffies and born in the countries in which their parents are fb employed during the continu ance of their employments, and of the children of Englim merchants fettled, for the purpofes of trade, in fome Englifh factory that has been eftablifhed by the king's authority in the territories of fome
foreign
foreign prince, or ftate, by the permiflion of fuch prince or ftate. Children born abroad under thefe circumftances, and, perhaps, under fome other circumftances of a fimilar nature, are confidered as natural- born Eng- limmen to all intents and purpofes, and may purchafe land in England as well as if they had been born in it. But other perfons born abroad cannot do fo. Thus the great num bers of people who fled into England from Flanders and the other provinces of the Netherlands, in the time of the duke of Alva's perfecution, (which was in the firft part of the reign of queen Elizabeth,) though they and their families fettled themfelves in England with queen Elizabeth's permiffion and approbation, and introduced fome valu able manufactures into the kingdom, yet were not capable of becoming purchafers of land in it. And the cafe was the fame with refpect to Frenchmen and all other foreign ers, and, among the reft, with refped to the natives of Scotland, while that was a kingdom independant of, and feparate from, the kingdom of England. But, if a foreigner, fettled in England, had children born in
England*
England, thofe children were natural-borri Englifhmen and might purchafe land as well as thofe whofe anceftors had been fettled in England from time immemorial. And even of the deni-
r -11 ji zation of fo-
a foreigner might be rendered capable of reigners by purchafing land in England by the favour of the Crown, by means of the king's letters patent of denization under the great feal ; which letters patent are fo called from the French word donaifon, a donation or gift, becaufe they contain a gift, or donation, to. the foreigner to whom they are granted, of the rights and privileges of a natural-born Englifhman. What the prefent form of thefe letters patent is, I do not know : and, indeed, I believe it is not ufual at this day for our kings to make any fuch grants ; but foreigners who have defired to fettle and make purchafes of land in England, and ob tain, as far as might be, the privileges of native Englimmen, have, for many years pafl, procured private acls of parliament for that purpofe, which confer thofe privileges in a more ample manner than the king's letters patent of denization. But in queen Eliza beth's time fuch patents ufed to be granted ;
and
J
and mention is made of fuch a grant in Lord Coke's fifth book of Reports, folio 52, in Page's cafe, where it is ftated that one Indy, who was owner of certain houfes in the town of Lynn Regis in the county of Nor folk, which he held to him and his heirs for ever, by focage tenure, had devifed them by his laft will to his wife, who was an alien, or foreigner, but who had, before the death of her laid hufband, been made a denizen by queen Elizabeth by her letters patent under the (qreat feal -, and that the faid woman, after the death of Indy, had married a man of the name of Page, who thereby became pofTeiTed of the faid houfes in her right ; which gave occalion to the law-fuit there reported by Lord Coke. This caufe was determined in the 3oth year of queen Eliza^ beth's reign, that is, in the year 1588. But Lord Coke has not inferted in his report of this cafe the form of the faid letters patent of denization. Nor do I know of any copy of fuch letters patent in any law-book (though one would think there mould befeveral,) of a later date than the reign of king Henry the 6th, who was driven from the throne by
king
[ 305 ]
king Edward the 4th in the year 1460. I will therefore exhibit to you that antient copy of fuch letters patent, which, I dare fay, you will join with me in confidering as a matter of curiofity well worth our atten tion before we proceed further in the view of Calvin's cafe, which turns upon the doctrine of alienage and the diftinction to be made between foreigners and natural-born fubjects. It is contained in the old collection of reports of law-cafes called the Year-books, in the reports of the cafes in the 9th year of the reign of king Edward the 4th, in Trinity term, page 8. In that year of king Edward Tj1^ cafe,of the 4th, two perfons, whofe names were in the gth year William Swirenden and John Bagot, brought K. an adion at law called an affife, againfl one Thomas Ive for difTeifing them (or turning them out of the pofTefiion) of the office of clerk of the crown in Chancery, which they dated to have been granted to them by letters patent of king Edward the 4th, the then reigning king. In anfwer to this com plaint Thomas Ive pleads two different pleas with refped to his two adverfaries ; namely, as to John Bagot, he alledges that the faid VOL, II. R r John
Plea of alie nage, ufed by the defendant Ive in abate, ment of the writ of affize brought by the plaintiff t.
[ 306 ]
John Bagot ought not to be allowed to main tain his writ of affifeagainfthim, becaufe the faid John Bagot is a foreigner, born out of the ligeance, (or obedience) of the king of England j and, as to William Swirenden, the other plaintiff, he alledges that he never had been feifed (or porTeffed) of the faid office of clerk of the crown in fuch a manner as to be capable of being difleifed of it, and that, if he had been fo feifed of the faid office, he, the faid Thomas Ive, had not difleifed him of it, or molefted him in the enjoyment of it. The words of his plea with refpect to John Bagot are thefe j !%uod idem yohannes Bigot eft alienigenay genifus et natus extra ligeantiam domini regis Angl'itf, inde- licet, apud Ponuteys infra regnum Francia fub obedientid Caroli nuncupantis Je regem Francice^ adverfarii et magni inimici domini regis Anglicz. Et hoc par at us eft verificare, Unde, quoad prtzdiffum Johanncm Bigot, petit judicium de hrevi praditto. In reply to this plea, of which he does not deny the truth, John Bagot fays that the late king Henry the 6th by his letters patent under the great feal of England, bearing date at Weflminfter
on
[ 3°7 ]
on the 3d day of November, in the 371)1 year of his reign, did, out of his fpecial favour, and as a reward for the good fervice which the faid John Bagot had rendered him, grant, for himfelf and his heirs, to the faid John Bagot, that he, the faid John Bagot, and the heirs of his body, {hould be, for the future, natural-born fubjects and liegemen of the faid king and his heirs for ever, and fhouldbefo allowed, treated, and coniidered on all occafions. And in proof of this alle gation of fuch a grant of king Henry the 6th, the faid John Bagot produced before the court the faid letters patent themfelves, which were in the words following.
HenriciiSy Dei gratia^ rex Anglic? ct letters, patent
. j .,. .. of denization,
ct aominus tubernuZi omnibus ad granted to qiios pr a !ent'es liters pervencrint, falutem. JohnBagotby
2 •* J f ' ' A. Henry the
\ • „ n 6thin the 37th
Sctatts, quod de gratia nojlra fpeciali, et year of his
pro bono fervitio quod dileftus fervitor nofter^ Johannes Bagot, in ducatu noflro Normannia oriundus, nobis impendit et impendet in jutu- rum, comeffimus, pro nobis et b^redibits nojlris, quantum in nobis eft, prafato Jobanni, §>uod ipfe de catero et omiies h^rede-s Jui, de cor pore R r 2 w
rej.cn.
fuo procreati et procreandi, fint indigena et To be confi- fa^ noftri, et qullibet eorum fit indigena et
dered and f
treated as a ligeus nojler^ et hteredum noftrorum ; et quod of the ipfi 'in omnibus traftentury reputcntur^ habe- tencantur', et guhernentur, ficut Jiddes
kingdom of //V^' noftri infra revnum Anvlitz oriundi. et
England.
qmlibet eorum in ommbus tractetury reputetur, habeatur, tcneatur, et gubernetur tanquam ligeus nofler infra dittum regnum noftrum Anglic criundus, et non aliter nee olio modo. — Power to Qu&dque idem Johannes et omnes buiufmodi
bring aflions °^ J . J • /
of all forts in b<eredesjm, et eorum quill bet ^ ommmodas ac-
juf. t tow* > reales^ per finale s> et mixtas^ in omnibus tjce- curiis, locis, et jurifdiStionibus, noilris babere
et exercere, eifque gaudere^ ac eas in eifdem placitare^ ft implacitari, refpondere et refpon- deri, defendere et dejeneK, pcjjint et po/fit, in c?nnibus et per ctmiia, ficut Jideles llgei noftri in difto regno noftro Anglic oriundi. - -
Power to pur- £/ ulteriu^ quod diclus Johannes et hteredes chafe lands. ...
fui prcedicli terras, tenement a , readitust Jer- vitia, reverfwnes, pojjejjhnes, quacunque^ infra regnum nojlrum Angli<2 et aha dominia nojlra^ perquirere^ capere^ rccipere, babere, fcn-.:rey et pojjidere> ac eis uti et gaudere jibi et bare- dibus fat's, imperpetuum, vel alio modo ; ct ea
dare,
3°9 ]
dare, vendere, alienare, ac ligare, cuicunquz per/once feu quibufcunque perfoni s fibi placuerit, licite et impune debeant, poj/int, et valeant, et quilibet eorum debeat, pojjit, et valeaf, ad libitum fuum, imperpetuum, adeo libere et quiet e^ intcgre, et pacifice, Jicut debeat^ pojjit, et va/eat aliquis ligeorum nojlrorum infra regnum nofttum Anglice ortundorum. Et Exemption
; r cv/ 7 W ; • r >' ^r°m l^e
quoa prajatm Johannes et omnes hujufmodi ties payabl hesredesjui, de ctetero in Juturum^ color -e, feu vigcre, alicujus ftatuti, ordinationis, feu con- ceffionis jaffcz vet faciendce, non arffientur^ teneantur^ Jeu compellantur^ nee aliquis eorum arftelur^ teneatur, feu compellatur ', ad fcl- •uendum, dandum, vel faciendum^ aut fup- portandumt nobis velalicui hceredum nojlrorum, Jcu cuicunque^ aliqua alia cuflomas, fubfidia, taxas^ tallagia^ (eu alia oner a qu<zcimquet pro bonis* marchandlfis^ terrisy Jeu tenementis^ vel perfonis eorum, aut alicujus eorum, pra- terquam talia et tanta qualia et quanta alii fideles nojln, infra diffum regnum noftrum Anglice oriundi, pro bonis, marcbandifts, terns, tenementis, feu perfonis fuis propriis, fofount, dant, fachmt velfupportant, aut folvere, dare, fe.ccre, et Jupportare confueverunt et temntur ;
fed
fed quod pr^f aim Johannes et haredes fid prce- diffi habere et pojjidere valeant, et quilibet eorum habere et poffidere valeat> ac babeani e£ poflideant, omnes et omnimodas liberates, fran- chefias, ac prruilegia quacunque^ et eh nil et gander e poffint et pojjit, infra difium regnum noftrum Anglice et jurifdi&iones \ejufdem\ adeo libere, et quiet} t inte?ri> et pacific^ Jicut cczteri fideles ligci noftri infra regnum nojlrum Anglic? oriundiy habere et pofjidere^ uti et gaudere debeant> abfqtte perturbatione, mo- lejlatione^ inquietatione> impetitione, impe- dimentO) vexatione, calumnid^ jeu grai;a- mine quocunque noftri vel baredum noftrorum^ juftitiariorum, efcbaetorum; vicfc&nttum, ant aliorum officiariorumy feu minijlrorum nojlro- ruffi, vet hceredum noftrorum> quorumcunque ; et abfque fine et feodo inde quovijmodo ad opus noftrum capiendo feu fohendo : - ftatutis. ordinationibus. aclibus.
cbftante, to all . .
ftatutes, &c. prcvifionibits, feu proclamationibust in con-
to the con- ' . / , rt. ,. .
trar>r% tranum ante b#c tempora faftis, editts,
ordinatis, prcvifis, feu proclamatis, aut im-
pofterum faciendis, aut quod prcediftus Jo hannes Eagot in dicto ducatu noftro Nor- mannicz fuit oriundus, aut aliqud [^//V/j
caufdj
[ 3". 1
dj 'Del water id., oudcunque^ non objlan* tibus.- In cujus rei teflimomum has literas no fir a s far i fecimus patentes.
Tefte Me tpfo, apud Weftmonafterium> tertio tile ]'7oeve?nbrisi anno regnl noftri tricefimo feptimo.
Thefe letters patent are exceedingly verbofe and full of tedious expreffions that are almoft fynonymous to each other. But the purport The
c u ' - u r-j T u n of the fore-
or them is to grant to the laid John Bagot the going letters four following privileges -} to wit, ift, In pat general terms, that he and his children mail be treated and confidered on all occafions as natural-born Englishmen ; 2dly, That he and his children {hall have a ri^ht to bring
o o
adtions of every kind in all the Englim courts of juflicej sdly, That he and his children {hall be at liberty to purchase, or acquire, land in England, in the fame man ner as if they had been born in England ; and 4thly, That he and his children {hall be exempted from paying the extraordinary duties paid by alien's upon the importation of goods into England, and all other payments to the Crown of every kind, to which fo
reigners
[ 3" 1
reigners refiding in England were liable j of which four privileges the three laft are con tained in the firft, and are only fpecincations of the principal fubjects to which it might be applied.
Thefe letters I muft alfo obferve that in the report of called in the that cafe of Bagot and Ive in the Year- Jfner^pattnt of b°°^s> ^e^e letters patent are called letters legitimation. patent of legitimation^ though the more
modern name for them is that of letters pa- •
tent of denization.
Having premifed thus much concerning the law of alienage, and the neceffity of letters patent of denization in order to enable an alien, or foreigner, to purchafe land in England, I will now endeavour to ftate to you a mort abftracl of Calvin's cafe, which relates fingly to this doctrine.
Anabftraftof In the 6th year of the reign of king James
in the ;th ' the firft an action at law, called an affife,
bookofi^rd was brought by the guardians of an infant
pom. of three years of age whofc name was Robert
Calvin, in the name of the faid infant,
againft two perfons named - Richard and
Nicholas
3'3
Nicholas Smith, for a freehold houfe in the parifh of St. Leonard, Shoreditch, near Lon don, of which it was faid they had diiTeiicd (or difpoffefTed) the faid Robert Calvin. To this complaint the faid Richard and Nicholas Smith fay, that the faid Calvin has no right to bring the faid action, and that they are not bound in law to anfwer his complaint, be- caufe he is an alien born, having been born at Edenborough in Scotland on the 4th day of November in the 39th year of the reign of the then reigning king, James, over his kingdom of Scotland, and in the 3d year of his reign over his kingdoms of England and Ireland j which birth of the plaintiff at Eden- borough they alledge to be within the king's allegiance of his kingdom of Scotland, but without his allegiance of his kingdom of England ; and they alledge further that at the time of the birth of the faid plaintiff, and before and fince, Scotland was governed by its own peculiar laws, and not by the laws of England. To this it is replied for the faid Robert Calvin, that this plea is not fufficient in law to bar him from having; an
o
anfwer to his faid action. And this is the VOL, II. S s queOion
Plea of alien age, in abate ment of the writ of aflize brought by the plaintiff Calvin ; be- caufe of his birth in Scot land fmce the acceflion of
kin<* fames to .
the crown of England.
Allegation that Scot'anJ and England are governed by different laws.
Replication of tru plaintiff Calvin.
t 314 ]
The queftion qneftion which is left to the decifion of the
resulting
therefrom, for judges ; which is, in other words, whether,
the decifion of ' /- , 0 , , -.
the judges. or no> perlons born in bcotland fmce the acceffion of the king of Scotland to the crown of England, (who were, upon that occafion, called poftnati,) could maintain actions for lands in England, which it was confefled on all hands that perfons that were born aliens, and under the allegiance of a foreign king, could not do.
This cafe was argued very fully, firft, by the moft able and learned counfel at the bar, and afterwards by all the judges, (in number fourteen,) and the lord chancellor ; and it was at laft determined by the lord chancellor and twelve of the judges in favour of Calvin, the plaintiff, to wit, that he was not to be confidered as an alien born, but as a natural- born fubject of England, and might pofTefs land in England, and maintain an action for the recovery of it.
Of the difFj. In the courfe of the arguments delivered in
rent kinds of . . . .
allegiance to this caule there was a great deal laid upon the the lame king, Doctrine of allegiance, and whether or no there
mentioned in
AC plea of the could be two kinds of allegiance to the fame
defendants. . .
king,
king, an allegiance to him as king of one of his kingdoms and a different allegiance to him as king of another kingdom, according to the diftinction fuggefted in the defendant's plea. And it was determined that there could not -} and, confequently, that the being born under the king's allegiance, as king of Scotland, was equivalent to the be ing born under his allegiance as king of England, with refpecl to the privileges that belonged to the latter birth in the kingdom of England, £ut the reafons alledged by Lord Coke as the grounds of this opinion. do not appear to me very fatis factory, and were not efteemed fo by many of the lawyers of that time. However, as this matter is not much connected with the fubjedl of our prefent inquiry, which is the power of the crown of England over countries acquired by conqueft, I (hall fay nothing further about it.
After difcuffing the queftion concerning
the two forts of allegiance due to king James
in his two capacities of king of England and
king of Scotland, which is the firft ground
S s 2 of
Of the confe- quences that reluhfromthe difference of the laws that prevail in the two kingdoms of England and Scotland.
Of the points 5n which the two kingdoms were become united, and thofe in which they ftill con tinued fepa rate.
of argument fuggefled in the defendants plea, the judges proceed to confider the other ground of argument fuggefled in the faid plea by the allegation that the kingdom of Scotland is governed by a different fyftem of laws from that which takes place in England.
Upon this matter they reafon ftrangely, and affirm that allegiance is due from fubjecls to their king, not by the laws of the land, but by the law of nature j and therefore that, as the law of nature (which is the foundation of allegiance,) is the fame in both kingdoms, the diverfity of the laws of the two kingdoms in other refpeds is of no im portance with refpecl to the doctrine of alle giance, and to the privileges of a natural-born fubjecl which refult from it.
They then, in the 3d place, confider in what points the two kingdoms of England and Scotland were become one by the ac- ceflion of king James to the crown of Eng land, and in what points they ftill continued feparate j and determine that they continued feparate with refpedl to their laws, their par liaments, and their bodies of peerage or
nobility.
They
[ 3'7 J
They then, in the 4th place, confider the Of ^ nature of alienage, and lay down the rules aliens.™ of law upon this fubjecl ; #s, who is to be considered as alienigena, or an alien born*, and how many kinds of aliens there are, as alien amjs, or alien friends, namely, the fubjecls of princes in alliance, or amity, with the king of England ; and alien enemies, namely, the fubjecls of princes at war, or at enmity, with the king of England j and the privileges and incidents belonging to thefe feveral forts of aliens. And under this head it is that Lord Coke introduces what he fays concerning conquered countries, from which Lord Mansfield cited the pafTage above- mentioned. And here, that you may the better judge of the drift and meaning of the faid paffage, 1 will recite to you the whole paragraph, or head of argument, of which it makes a part -, whichh is as follows.
" Every man is either aliemgena, an alien- The whole born, or jubditus, a fubjecl-born. Every CokJ^upon * alien is either a friend that is in league, &c. this fubJea- or an enemy that is in open war, &c. Every alien enemy is either pro tempore, temporary
for
[
: for a time, or perpetitus, perpetual, or Jpect- aliter permiffiis, permitted efpecially. Every fubjedt is either natus, born, or datusy given or made : and of thefe briefly in their order.
Of alien An alien friend, as at this time, a German, a Frenchman, a Spaniard, ficc. (all the kings and princes in Christendom being now in league with our fovereign ; but a Scot being a fubjedt, cannot be faid to be a friend, nor Scotland to be jblum amid) may by the common law have, acquire, and get within this realm, by gift, trade, or other lawful means, any treafure, or perfonal goods what-* foever, as well as an Englishman, and may maintain any action for the fame : but lands within this realm, or houfes (but for their neceffary habitation only) alien friends can not acquire, or get, nor maintain any action real or perfonal, for any land or houfe, un- lefs the houfe be for their neceflary habitation. For, if they mould be difabled to acquire and maintain thefe things, it were in effect to deny unto them trade and traffick. which is the
of aliens, tli at life of every iiland. But if this alien become an enemy (as all alien friends may) then is he utterly difabled to maintain any action,
or
L 3*9 J
or get any thing within this realm. And this is to be Xmderftood of a temporary alien, that, being an enemy, may be a friend, or, being a friend, may be an enemy. But a Of aliens, t&at perpetual enemy (though there be no wars en&Ssw by fire and fword between them,) cannot maintain any adtion,'or-get anything within this realm. All infidels are in law perpetui Of Infidels, itiimici, perpetual enemies (for the law -pre- fumes not that they will be converted, that being remota potentia, a remote poflibility) : for between them, as with the devils, (whole fubjecls they be,) and the Chriftian, there is perpetual hoftility, and can be no peace ; for, as the apoflle faith, 2 Cor. vi. 1 5. Qute autem convent™ Chrijli ad Belial, ant qu* fdeli cum infideli? and the law faith, Chriftianum nullum ferviat mancipium : nefas enim eft quern Chriftus rcdcmit, blafphemum Chrifsi in fervitittis vinculis detinere. Regijter 282. Infideles funt Chrilli C-? Chrifiianorum inimicL And herewith a^reeth the book in
^j
12 H. 8. fol. 4. where it is holden that a Pagan <: nnot have or maintain any adion at ail-
And
Of the laws of conquered countries.
Of a Chriftian country that is conquered.
Of an Infidel country that is conquered.
Of the laws of a kingdom that accrues to a king by defcent.
[ 320 ]
" And upon this ground there is a divetfity between a conqueft of a kingdom of a Chrif- tian king, and the conqueft of a kingdom of an Infidel. For, if a king come to a Chriftian kingdom by conqueft, feeing that he hath •vita & necis potejiatem, he may at his plea- fure alter and change the laws of that kins:-
o o
dom ; but, until he doth make an alteration of thofe laws, the ancient laws of that king dom remain. But, if a Chriftian king fhould conquer a kingdom of an Infidel, and bring them under his fubjeclion, there ipjofafto the laws of the Infidel kingdom are abrogated, for that they be not only againft Chriftianity, but againft the law of God and of nature, con tained in the Decalogue > and in that cafe, until certain laws be eftablillied amongft them, the king, by himfelf, and fuch judges as he mail appoint, mall judge them and their caufes according to natural equity, in fuch fort as kings in ancient time did with their kingdoms, before any certain municipal laws were given, as before hath been laid. But, if a king hath a kingdom by title of defcent, there, feeing that by the laws of that king dom he doth inherit the kingdom, he cannot
change
[ 321 ]
change thofe laws of himfelf, without confent
of parliament. Alfoif a king hathaChriftian Ofthelegif.
1-11 n. i • TT i lative auth°-
kingdom by conquelt, as king Henry the rity over Ire-
fecond had Ireland, after king John had given unto them, being under his obedience and fubjedion, the laws of England for the go vernment of that country, no fucceeding king could alter the fame without parlia ment. And in that cafe, while the realm of England, and that of Ireland, were go verned by feveral laws, any that was born in Ireland was no alien to the realm of Eng land. In which precedent of Ireland three things are to be obferved : i. That then
i3
there had been two defcents, one from king Henry the 2d to king Richard the ift, and an other from king Richard to king John, before the alteration of the laws. 2. That albeit Ireland was a diftinct dominion, yet the title thereof being by conqueft, the fame by iudgement of law might by exprefs words be bound by act of the parliament of Eng land. 3. That albeit no refervation were in king John's charter, yet by judgement of law a writ of error did lie in the King's Bench in England of an erroneous judgement in the
VOL. II. T t King'
r 322 i
King's Bench of Ireland. Furthermore, in the cafe of a conqueft of a Chriftian king-> dom, as well thofe that ferved in wars at the conqueft, as thofe that remained at home for the fafety and peace of their country, and other the king's fubjecls, as well antenati as poftnati, are capable of lands in the king^ dom or country conquered, and may main tain any real action, and have the like privi- Endofthepa- Wes and benefits there, as they may have
ragraph cited .
from Calvin's in bngland.
cafe-
Remarks on You fee that the principal defign of Lord graph, J Coke in this whole paragraph is to iettle the proper diftinctions between alien friends and alien enemies, and between alien enemies of a temporary kind, and aliens that are perpe tual enemies, which he fays is the cafe with all Pagans, or unbelievers in the Chriftian religion ; and that the introduction of the doctrine of the fubjeclion of conquered coun tries to the Crown is foreign to the fubject under confideration, and arifes merely from the mention of the diftinclion between alien enemies that are Chriftians and aliens that are unbelievers in Cbtift&nity, and is intended
merely
I 323 ]
merely to confirm that diftinclion by mewing that a like distinction takes place with refpeft to the laws of a Pagan and a Chriftian country upon a conqueft of them. The author's view is not to {hew that the king of England alone (in contradiftinction to the king and parliament conjointly) has the power of alter ing the laws of a conquered country in either cafe j but to declare that, upon the conqueft of a Pagan country by the crown of England, all the laws of the country are inftantaneoufly abolifhed by the mere conqueft itfelf, without any declaration of the Crown for the purpofe; whereas, upon the conqueft of a Chriftian country, the old laws continue in force until they are exprefsly abolimed by the conqueror. This is the main proportion here laid down by Lord Coke : and this proportion is juftly ridiculed and rejected by Lord Mansfield, as illiberal and extra-judicial, and as having been moft defervedly exploded. Now it is certain that, if this main proportion, concerning the different fates of the laws of Chriflian and Pagan countries upon a conqueft by the crown of England, is extra-judicial, the incidental declaration contained in it, concerning the T t 2 king's
The principal object of Lord Coke in the faid para graph.
The mam proposition of Lord Coke in thisparagraph is extra judi cial.
So likewife Is the incidental declaration contained in it, concerning the legiflative authority over conquered countries.
king's power of making new laws in the faid conquered countries, is no lefs fo, having not the fmalleft ^connection with the only queftion in the caufe then under confidera- tion, which was, whether a perfon born under the king's allegiance in Scotland iince the king's acceffion to the crown of England, was to be confidered as intitled to the fame privileges of purchafing land, &c. in England as if he had been born in England. Upon And therefore this ground, therefore, of its being extra-
it deferves but , ,. . , jj. , . , -,. ,
little regard, judicial, it ought to be treated with little regard, as well as the other opinion concern ing the laws of Pagan and Chriftian coun tries, which Lord Mansfield treats with fo much contempt.
But> befides the circumftance of its being favour the o- extra-judicial, we may obferve that the words * permanent of this declaration feem to relate only to the ?hehCrown to Power of fettling the laws of a conquered makelawsfor C0untry once for all, immediately upon the
conquered J
countries. conquelt of it, and not to the permanent le- gijlati've authority over it, or the perpetual power of making and altering its laws when ever the Crown fliall think it necefTary. For
thcfe
t 325 ]
thefe words (omitting what is faid about the conqueft of Pagan countries) are as follows. " If a kin? come to a Chriftian kingdom by
0 till- • thewordsthat
conqueft, feeing that he hath *uitx et nects contain the poteflatem, [that is, the power of life and ^^^ death,] he may at his pleafure alter and change the laws of that kingdom : but, until he doth make an alteration of thofe laws, the antient laws of that kingdom remain." — " Alfo, if a king hath a Chriftian kingdom by conqueft, as king Henry the ad had Ireland, after king John had given unto them, being under his obedience and fubjedion, the laws of Eng land for the government of tr^at country, no fucceeding kins could alter the fame without
o o
parliament." " In which precedent of
Ireland it is to be obferved, that, albeit Ire land was a diftinct dominion, yet, the title thereof being by conqueft, the fame by judge ment of law might by exprefs words be bound by act of the parliament of England." Thefe three (hort pafTages are all that relate to the legislative authority to be exercifed over con quered countries. And they feem to me to Two ProPofi-
tions that are
contain thefe two propontions ; to wit, I ft, contained in That immediately after the ccnqueft, the thefaidwords-
king
[ 3*6 }
king alone, without confent of parliament, having the power of life and death over the conquered people, may chufe whether he will permit the old laws of the conquered country to continue in force, or whether he will abolim them and introduce the laws of England in their ftead j and 2dly, That, if he takes the latter courfe and gives the con quered people the laws of England, he can not afterwards make any alteration in them without confent of parliament ; and confe- quently that the king and parliament con jointly, and not the king alone, becomes pofTelTed of the permanent right of legiflation. over fuch countries ; which is a conclufion di- The latter of reclly contrary to that which Lord Mansfield propo^tionTis deduces from thefe celebrated and much* contrary to agitated paflages.
Lord Manf- B field's opi-
on* I am fenfible this obfervation of mine is
but a repetition of that which you made fome time ago upon your firft hearing the forego ing palTages from Lord Coke's report of Calvin's cafe, as they were quoted in Lord Mansfield's judgement. But I thought it was worth while to mention it a fecond time after
the
t 327 ]
the account I have been giving of that cafe, and the recital of the whole paragraph and head of argument in which thofe paffages occur, which has enabled us to judge better than we could at firft of the true drift and meaning of thofe pafTages, and of the ftrefs it is reafonable for us to lay upon them. We may now therefore conclude, from fuffi- Conclufi°n3
i concerning
cient grounds and premises, that this extra- the opinion
» j- • i • • r i •''!'-' • /•> i • > r. °f the judges
judicial opinion or the judges in Calvin s cafe contained in is not a very weighty authority upon this SSfiSll! fubjecl, and that, fuch as it is, it makes ra- Coke's report, ther againft than for the doctrine of the fole cafe, legiflative authority of the Crown over con quered countries, which Lord Mansfield has adduced it to fupport,
FRENCHMAN.
I am obliged to you for this account of that famous cafe, in the report of which thefc paffages concerning conquered countries arc contained. For it has not only been matter of amufement to me, but has enabled me to form a mere pofitive and better-grounded opinion concerning the meaning of them than I could have done without it. And the refult is, that I am confirmed in the
opinion
opinion I originally formed concerning them, when you firft mentioned them as cited by Lord Mansfield, and which, I am pleafed to fee, agrees perfectly with your manner of undemanding them. 1 have nothing, there fore, further to fay concerning them but that I am extreamly furprized that Lord Manf- field, or any body elfe, mould ever have cited thefe paflages of Calvin's cafe as a proof of the permanent legiflative authority of the Crown over conquered countries, when, in truth, they contain a plain denial of it, in thofe \vords which declare, that, when once king John had granted to the conquered people of Ireland the laws of England for the government of that country, no fucceed- ing king could alter the fame without parlia ment. This is a matter which, I confefs, furprizes me, and which I cannot eafily account for.
ENGLISHMAN.
Nor can I with any degree of certainty.
A conjedure . J b .
concerning But it icems to have arilcn cnieny from the
LordCaUManf- want of the neceflary dim'nclion, which we
*eld's h3ving made fome time ago when we were con fid er-
forefaid paf- ing what Lord Mansfield had faid concern-
fage fromCal-
vin's cafe in '**§
fupport of the king's fole legiflative authority over conquered coun- " tries, though in truth it makes againlt the faid authority.
ing Ireland, between the power of intro ducing into the conquered country, by a fingle act of authority, immediately upon the con- queft, the laws of the conquering country, and the proper and permanent power of legiflation over it, or the power of making, and unmaking, and altering, the laws of it at pleafure, at any time after. For Lord Coke certainly does afcribe the former power to the Crown alone, but the latter to the king and parliament conjointly. — But I think we have dwelt long enough upon the con- fideration of this famous authority: — uniefs you have ftill fomething further to offer concerning it.
FRENCHMAN.
I have nothing further to offer concerning this authority, with refpect to which I am perfectly fatisfied. But I have one hiftorical queftion to propofe to you concerning the cafe itfelf in which this authority occurs;
I mean, Calvin's cafe. 1 think you faid
that the decifion of that cafe had given offence to many people in England, and been con- fulered as an effect of the fervility of the
VOL. II. U u judges
[ 330 ]
judges who decided it, and their difpofition to fall in with the wimes and humour of the court. Now I mould be glad to know what intereft king James the ift could have in the decifion of that caufe, and why he mould be fuppofed to have taken any concern in it.
Of the con cern {hewn by K. James the jft to have his Scotch iub- jcfts, born af ter his accef- fion to the crown of Eng land, confi- dered as na tural-born Englifhmen-
Commiffion- ers are ap pointed by the twokingdoms to treat about an union of the fame, Jn 1603.
ENGLISHMAN.
King James the ift, almoft immediately after his acceffion to the crown of England, (which was on the 24th of March, 1602, or, according to our prefent ftyle, 1603,) endeavoured with the utmoft eagernefs and anxiety to bring about an union between his old and new fubjects, the people of Scotland and the people of England, in as many points as poffible. In compliance with this ftrong defire of the king, an act of parliament was paffed in England in the firft year of the king's reign, by which certain commiflioners of England were appointed to meet with commiffioners of Scotland, and to treat with them upon this fubjecl ; and in the end the commiffioners were directed to prepare three fchedules, or copies in writing, of fuch pro^
pofitions
[ 331 1
pofitions as they mould agree upon for the furtherance of this good defign ; of which copies one was to be delivered to the king, another to the parliament of England, and the third to the parliament of Scotland. The commiffioners of both nations accord- Proceedings
of the faid
ingly met in the king's palace at Weftminfter, commiffioners
in a large room there, called the painted '1604. C
chamber, in the fecond year of the king's reign,
that is, in the year 1 604, and treated long
together upon this fubjed: j and, in the end,
they made written fchedules of the propofi-
tions they had agreed upon, and delivered
them to the king and the two parliaments of
England and Scotland, agreeably to the di
rections which had been given them. The
fchedule for the parliament of England was
preferred to the parliament by Sir Thomas
Egerton, Lord Ellefmere, who was at that
time lord high chancellor of England, and
one of the commiffioners for England at
this treaty. It was prefented by him on the TheJr propo-
firft day of the feffion of parliament holden kmed to the
in the third year of the reign of king James j inptahr;
the ill, or in the year 1605, before the king >ear l6°5« himfelf, the Lords fpiritual and temporal, U u 2 and
[ 332 3
and the Commons of England, who were all affembled in the upper houfe of parlia ment. But the confideration of that fchedule was, by another a<ft of parliament made in that feffion of the 3d year of king James's reign, deferred until the then next feffion of parliament.
And are taken jn the faid next feffion of parliament,
into confide- . .
ration in the which was held in the 4th year of the reign of king James the ift, or in the year 1606, the faid fchedule was taken into confideration feparately by the houfe of Lords and the houfe of Commons. The material parts of The purport it confifted of thefe four propositions -, to wit, propofals. ift» That all hoftile laws of either nation one againft the other, might be abolifhed ; and thefe laws were enumerated in the fche dule ; 2dly, That a certain courfe mould be taken for the facilitating of commerce and merchandizing by the merchants of both nations, both with each other and with fo reigners; and 3dly, That the common law of both nations fhould be declared to be, that all perfons born in either kingdom Jince his Majefty's acceffion to the crown of Eng land
[ 333 ]
land were to be confidered as nature-born fubjecls in both kingdoms; and, in the 4th place, That ads of the two parliaments of England and Scotland fhould be palled for the benefit of all perfons born in either king dom before his Majefty's acceffion to the crown of England, fo as to make them alfo be con fidered as natural-born fubjedts in both king doms as well as thofe perfons who were born fuice the faid acceffion; but with -certain cautions and reftriftions with refpedl: to the privilege of holding great offices under the ** Crown, and offices of judicature, and of hav ing voice in parliament, and with a faving of the king's prerogative.
¥
Upon the two firft articles, (which related to the abolition of hoftile laws and the en couragement of trade,) the Lords and Com mons had fundry conferences together in the Painted-chamber ; and, in effect, they agreed to give way to the fubftance of them. But, as to the third article, the Commons could not afTent to declare the law in the manner there in propofed ; and thereupon they appointed a committee of their own members to confer
with
The houle of Lords has conferences \viththehoufc of Commons upon the faid propofals.
TheCommons object to the third propofi- tion of the commiflioners, concerning the a Jtati.
[ 334 ] with a committee of the Lords concerning
o
this article j who, accordingly, met for this purpofe on the 25th day of February, 1606, in the Painted-chamber. In this conference Sir Edwin Sandys delivered the principal objections of the Commons to the faid third proportion concerning the pcft nati, and the Lord Chancellor Egerton was the principal fpeaker on the other fide of the queftion. But, as the Commons adhered to their opi nion, the committee of the Lords on the following day defired the judges who attended them, to deliver their opinions upon the matter ; which they accordingly did in favour The judges of the pofl nati. The judges who fpoke on
deliver their . . x. r. ^ , _, .
opinion in fa- this occaflon, were o/r John ropham, the
lord chief Juftice of the King's Bench> Edward Coke, chief juftice of the Common
Pleas, and Sir Thomas Fleming^ chief baron of the Exchequer. The other judges, who declared that they agreed with thefe three in opinion, were feven in number j and their names were Juftice Fenner, Juftice Williams and Juftice Yanfield, all judges of the King's Bench, Juftice Warburton and Juftice Daniel, judges of the court of Common Pleas, and
Baron
[ 335 ]
Baron Snig and Baron Altham^ barons of the Exchequer. So that there were ten judges in all, who concurred in this opinion. Thefe were all the judges that were prefent on this occafion, except Judge Walmejley ; and he was of a different opinion.
This opinion was extremely agreeable to king James, not only becaufe it promoted his favourite defign of uniting the two nations in as many points as poffible, but becaufe it KinS James
had already
confirmed the opinion which he himfelf had declared his been taught by his crown-lawyers to enter- vour^of^thc tain upon the fubjedt, and which he had, poft**** by a
1 . proclamation,
fomewhat imprudently, declared to the people
in an authoritative manner in one of his pro clamations. This circumftance, of its having already been declared by the king in his pro clamation to be law, and that of its having been taken to be fo by the commiffioners of the two nations, and propofed by them, in their third propofition, to be fo declared by parliament, are alledged by Lord Chancellor Ellefmere, in his argument at the conference ursed b7 the
i • r 1 • <-L i i i r r- Lord Chan-
upon this lubject between the two houies of ceilor to the parliament, to be ftrong reafons for declaring SJjJSS
fonfordeclar-
. , .
mg the law to be fo.
It Teems pro bable that this reafon might fomewhat in fluence the opinion given by the judges.
TheCommons were not con vinced by the opinion of the judges,
The king mentions the fubjedt in a fpeech to the parliament, lome weeks after the de livery of the laid opinion of the judges
Paflages of the king's fpeech,
relating to this fubjed.
[ 33* 1
this opinion to be agreeable to law, unlefs it fhould be moft clearly contrary to it ; it not being for the king's honour that his declared opinion fhould be contradicted. And there fore we may well fuppofe that this confidera- tion had fome little influence on the minds of the judges to determine their opinion in favour of the f off nati, unlefs they had thought the law to be clearly otherwife beyond all poffibility of doubt.
But, whether the judges a&ed partially or impartially in delivering this opinion, it is certain that it did not convince the houfe of Commons that the law was fo ; which gave occafion to king James to mention the matter to his parliament in a very long fpeech, which he delivered to them from the throne on the 31 ft day of the enfuing month of March, that is, about five weeks after the judges had delivered this opinion. In this fpeech there are the following paflages. " But for the " Poft nati, your own lawyers and judges, " at my firft coming to this crown, informed " me, there was a difference between the 'c Ante and the Po/t Nati of each kingdom :
" which
[ 337 3
cc which caufed me to publim a proclamation " that the poftnati were naturalized, ipfo " faftOy by the acceffion to the crown. I " do not deny that judges may err, as men ; <c and therefore I do not prefs you here to " fwear to all their reafons : I only urge, at " this time, the conveniency for both king- <£ doms, neither prefiing you to judge nor " to be judged. But remember alfo, it is as ct poffible, and likely, that your lawyers may " err as the judges. Therefore, as I wifh " you to proceed here in fo far as may tend cc to the weal of both nations, fo would 1 " have you, on the other part, to beware " to difgrace either my proclamation or the <: judges, who, when the parliament is done, " have power to try your lands and lives : " for fo you may difgrace both your king cc and your laws : for the doing of any a£t ct that may procure lefs reverence to the " judges, cannot but breed a loofenefs in the " government and a difgrace to the whole
" nation." " In any cafe v/hereiri the
" law is thought not to be cleared (as fome
cc of yourfelves do doubt that, in this cafe
" of fatpoftnati, the law of England doth
VOL. II. X x " not
Cl
[ 338 ]
not clearly determine,) then in fuch a queftion, wherein no pofitive law is refo- lute, rexeftjudexi for he is kxJoquens, and is to fupply the law where the law wants." By thefe paffages in this fpeech of king James we may perceive how anxious the king was to get this point relating to the fofnati fettled in their favour.
Names of the T\\Q iawvers wno argued on the fide of
lawyers who * &
argued for the the houfe of Commons in the conference
Commons at ... . r T , . c .
the conference with the committee or Lords, before the judges delivered their opinion, were Dod- ridge, the king's follicitor general, (who was afterwards a judge,) and Lawrence Hycle, (who was afterwards chief juftice of the King's Bench, and was uncle to the famous earl of Clarendon, lord chancellor to king Charles the fecond,) Brook, Crew, and Hedley, all profeiTors of the Common Law, according to the expreflion of Serjeant Moore, (from vvhofe reports the foregoing account of this proceeding is taken) that is, as I fuppole, ferjeants at law 5 which degree of ferjeants is the higheft degree of learning that belongs to the profeffion of an advocate, or barrifter
at
[ 339 i
at law, in England. You fee therefore, by thefe refpectable names of lawyers who main tained a different opinion from the judges upon this queftion, how far it was from being confidered at that time as a clear point in favour of the poftnati\ and likewife how warmly it was agitated and conrefted, as a matter of capital importance. In fhort, after all thefe debates and opinions and fpeeches, the Houfe of Commons adhered to their firft opinion, and could not be brought to confent, either, to declare by an act of par liament, that the law was already as the king and the judges had laid it down, (as the commiflioners of the two nations had re commended in their third proportion,) or to alter the law, and make it fo for the future. But the thing went off at that time, and the third proportion of the commiilioners of the two nations did not take effect. The Com mons, however, agreed to abolifh the hoftile laws that were then in bein^a^ainfl the Scots,
O O '
and an act of parliament was accordingly pafled for that purpofe.
The Com mons adhered to their nrft opinion not- withfhnding the opinion of the judoe$.
But they a- greed to a bo- lift the holtile
laws a^r.hill Sccthnd.
X X 2
This
The affair cf the pojlnati was revived two years af ter by Cal vin's cafe, in thcyeari6c8;
and then was determined judicially in favour cf the foftnati.
The judges were blamed for this deci- fion, as hav ing been in fluenced by a defire to gra- tifyK. James's humour.
The words of Mr. Wilfon, the hifiorian, upon this fub- jecl.
t 34° ]
Tliis affair of the pojlnati feeins to have refted here for about two years, and was then revived by the adion above-mentioned brought in the name of the infant, Robert Calvin, againft Richard and Nicholas Smith, for the polfeflion of a freehold houfe near Lon don > and was then determined in a judicial manner by the refolution of the judges in favour of the poflnati j which refolution has ever lince been allowed to be the law upon this fubjecl. But the judges on this occafion were fuppofcd by many people to be influenced by a dcfire of gratifying the king's humour, as well as on the former occafion, when they delivered their opinion before the committees of the houfes of Lords and Commons. For I find that Mr. Wilfon^ in his hiftory of the life and reign of king James the i ft, fpeaks of their conduct in this matter in fevere terms. After giving an ac count of the debates in parliament upon this affair of the union of the two kingdoms and the privileges of the poftnati, he has thefe words. " The parliament only feared, that the king's " power would have fuch an influence upon " the judges of the kingdom, that the Scots
" would
t 341 ]
" would be naturalized too foon -, (they were " refolved not to be acceflary to it;) which " indeed fome two years after was confirmed " in Calvin's cafe of poft-nati, reported by " the Lord Chief Juftice Coke, (who was fit " metal for any ftamp royal,) and adjudged " by him, and the Lord Chancellor Ellef- " mere, and moft of the judges of the king^ <c dom, in the Exchequer-chamber, though <c many ftrong and valid arguments were <c brought againft it. Such power is in the " breath of kings, and fuch foft ftuff are " judges made of, that they can vary their <c precedents, and model them into as many " (hapes as they pleafe." This Mr. Wilfon is an original writer, who lived in the time of which he writes, and all through the fol lowing reign of Charles the jft, and is the moft copious hiftorian that is extant of the reign of king James the ift. We may therefore reafonably believe that the cenfures he here paffes upon Lord Coke and the other judges, on account of their deciilon of Cal vin's cafe, were fuch as he had often heard beftowed upon them at the time of that transaction by the popular men of that age. —
This
This is the beft account I am able to give you of the occafion of the difTatisfaclion of many people with the judges for their con- dud in that bufinefs, and of the ground of the fufpicion that was then entertained of of the their having decided this queftion in the
accoantofthe . .. - . -
affair of the manner they did, from a deiire to gratify ftf«rf. the king.
FRENCHMAN.
I am obliged to you for the trouble you have taken to fatisfy my curiofity on this fubjec~t, and have now nothing further to
afk concerning it. We may therefore now
return to the original fubject of our inquiry, to wit, the power of the Crown to make laws for the inhabitants of conquered coun tries, if there remains any thing further to- be laid upon- it. I therefore beg you would refume the confederation of this queftion.
ENGLISHMAN,
I would do fo with pleafure, if the fubject were not exhaufted. But 1 believe we have gone through all the branches of Lord Manf- field's argument in fupport of the fole legifk-
tive
[ 343 ]
tive authority of the Crown over conquered countries, and have given them a very full -and fair examination : which is all I propofed to do upon the fubjecl:. For, as to my own opinion upon it before that decifion of Lord Mansfield, I have already mentioned it to you in the beginning of our converfation, together with the reafons upon which I grounded it, and had the fatisfaction of finding that you intirely agreed with me in both, and even anticipated fome of the latter. What effect the mere authority of Lord Mansfield, fitting in his judicial capacity, as chief juftice of the court of King's Bench, and delivering a contrary opinion, but grounding it on reafons that we think weak and unconclufive, ought to have upon our minds, I will not pretend to determine. But it is hard to give up one's reafon to mere authority.
FRENCHMAN.
So hard that I mail not do it. This is tgo important a point to be fettled by a fingle decifion of a court of juftice, or, perhaps I ought rather to fay, by the opinion of a fingle judge. For, by what you ftated to me of
that
TOD 13V
An inquiry, whether the opinion of Ld. Mansfield concerning the power of the Crown o- ver conquer'd countries, de livered in the judgement in the cafe of Campbell and Hall, ought to be confidered as the opinion of the other judges of the Court of King's Bench.
[ 344 ]
that judgement in the cafe of Campbell and Hall, it does not appear to be quite certain that all the judges of the court of King's Bench concurred with Lord Mansfield in opinion upon that firft point of the caufe. For, fmce, as Lord Mansfield exprefsly de clared, they all agreed that the plaintiff Campbell was intitled to the judgement of the court upon the fecond point, to wit, that the king, if he had had the fole legifla- tive authority over the iiland of Grenada immediately after the conclufion of the treaty of Paris in February, 1763, had neverthelefs precluded himfelf, by his proclamation of October, 1763, from exercifing it from that time forward, and had thereby transferred the faid power to the future governours, councils, and affemblies of the faid ifland ; I fay, fince all the judges agreed with Lord Mansfield in the opinion that the plaintiff Campbell ought to have judgement upon this fecond ground, it is poflible that they might not concur with him in his opinion upon the firft point, concerning the king's original legiflative authority over that ifland before the faid proclamation of October.,
[ 345 1
1763. Unlefs, therefore, it was exprefsly declared by Lord Mansfield (who feems to have been the only judge that fpoke upon that occafion) that the other judges con curred with him in that opinion upon the firft point, I do not think we are bound to confider it as being their opinion. I there fore fhould be glad to know whether Lord Mansfield exprefsly declared that the other three judges of the court did concur with him in that opinion.
ENGLISHMAN.
I do not find that he did make fuch a declaration, though, with refpecl: to the fe- cond point, he exprefted himfelf in thefe pofitive words ; " But, after full confidera- " tion, we are of opinion, that before the <c 2oth of July, 1764, the king had pre- " eluded himfelf from the exercife of a le- " giflative authority over the ifland of Gre- " nada." There is therefore a poffibility that your furmife may be true, that the other judges did not agree with him in opi nion upon the faid firft point. Yet their filence on the occafion feems to imply an
VOL, II. Y y afTent
[ 346 ]
aflent to what he delivered. So that I don't know what to conclude concerning that matter. All that is certain is, that the other judges did not openly declare their concur rence with Lord Mansfield in this opinion.
FRENCHMAN.
Well, be that as ' it may ; whether they did, or did not, concur with Lord Mansfield in that opinion, I confefs I cannot bring myfelf to accede to it, after having feen the weaknefs of the reafons which have been alledged in fupport of it by fo very able a de fender of it as Lord Mansfield. For, if that opinion could have been rendered plaufible and probable by any man, I prefume it would have been fo by Lord Mansfield. And yet we have feen how remarkably he has failed on this occafion, both in his rea-^ fonings and in his fa6ls; I mutt therefore adhere to my firft opinion till fome better arguments are produced to make me change
it. But, as this inquiry has run into great
length, in confequence of the full and par ticular manner in which you have examined
the
t 347 I
the feveral hiftorical examples adduced by Lord Mansfield in fupport of his opinion, and likewife of fome digreffions to other fubjecls which you have made to gratify my curiofity, I muft defire you to refume the fubjecl: for a little while longer, and repeat the principal concluiions We have agreed upon in anfwer to the feverai branches of Lord Mansfield's argument, and to ftate them in as compact and fummary a manner as you can, to the end that I may be the better able to arrange and retain them in my memory*
ENGLISHMAN.
1 think this will indeed be very proper, for both our fakes j and therefore I will en deavour to do it with as much brevity as mall be confident with a full enumeration of the feveral conclufions, (relative to the main fubjeclj) upon which we have agreed ; but without any mention of the collateral and incidental fubjeds to which we have digreifed. But even this will take up many words.
A recapitula tion of the principal cori- clufions efta- blifhed in the foregoing pa ges in oppofi- tion to Lord Mansfield's argument in fupport of the fole legiflative power of the Crown over conquered countries,
Yy
Wa
[ 348 ]
Conciufions We have agreed, then, in the firft place,
concerning i •» *• "111 r i
Lord M-r-nf- that Lord Mansfield has reaioned very m- fnegffromf°he" conclufively in the firft part of his argument, general prin- jn which he endeavours to eftablim the king's
ciples of law " '
and reafon. fole legiflative authority over conquered countries upon general principles of law and
reafon ; That he has therein confounded
the power of making war, and the fum- mary and arbitrary authority necefTarily at tendant upon it, (which confefledly belong to the Crown alone,) with the power of governing conquered countries in time of peace, after they have been finally ceded by
their former fovereigns to the Crown :
And that he has likewife confounded this latter power of governing a country, and exercifing legiflative authority over it, after , , ' it is ceded, with the power of making peace, or of either accepting the ceflion of the conquered country from its former fovereign,
or reftoring the country back to him :
And, laftly, that he has endeavoured to deduce a right of making laws for a con quered country from the right of granting away the vacant lands of it, that is, from a right of oivnerJJjjp ; which, if it were to be
admitted
[ 349 ]
admitted in other cafes to be fufficient for this purpofe, would prove every land-owner to be an abfolute monarch, or legiflator, over the perfons who rented, or took grants of, his land. Thefe, I think, are the re marks we concurred in making upon the firft part of Lord Mansfield's argument, in which he endeavoured to eftablifh this fole. legiflative power of the Crown upon prin ciples of law and reafon.
I come now to his precedents from hlftory, Conclufions which are the cafes of Ireland, Wales, theprecedents Berwick upon Tweed, cm hiftory,
which were
New- York, Jamaica, Gibraltar, and Mi- cite<i by Lord
Mansfield, norca.
With refpecl: to Ireland we obferved, that Of Ireland. he argued, from, king John's ha\i',ng, by his fole authoritv, ; of Eng
land into 1. wai the
fole legifla igneed- to be
by no theirp being a
mar;:: r in. the
co-, . foe al!^
y ^>.-r the tonQu.e^ -IQLO the
Conquered
[ 35° I
conquered country the laws of the conquer ing country, and the regular, permanent^ legijlati'ue authority by which the laws of the conquered country may, at any time after, be changed at the pleafure of the legislators, (whoever they are,) not only by introducing into it the laws of the conquering nation, but any other laws whatfoever^ and this as often, and in as great a degree, as the legifla- tors (hall think fit. And we further ob- ierved, that Lord Coke, in the paiTage quoted from this report of Calvin's cafe, has exprefsly declared that the kings of England were mt poflefTed of this permanent legifla- tive authority over Ireland, not having a right to alter the laws of England, (when once introduced there by king John,) with out confent of parliament j and that Lord Mansfield has adopted this opinion of Lord Coke, though it clames with the conclufion which he laboured to draw from this cafe of Ireland in favour of the king's fole legiflative power in the ifland of Grenada. And we further obferved that, for fome centuries part, at leaft, the laws which have been made for the government of Ireland havs
been
[ 35' J
been made either with the confent of the parliament of England, or with that of the parliament of Ireland. So that, upon the whole matter, Ireland appears to be a very unfit example of the exercife of fuch a fole legislative authority in the Crown over a conquered country as Lord Mansfield averted to have belonged to it in the cafe of the iiland of Grenada before the publication of the royal proclamation of October, 1763. Thefe, I think, are the principal remarks we agreed upon concerning Ireland.
With refpeci to Wales, it appeared to us Of Wales, that Lord Mansfield had miftaken two very material fads relating to it. For, in the firft place, he afferted that that country had not been a fief of the crown of England before its compleat reduction by king Edward the jft, notwithstanding king Edward, in the famous Statutum Wallice, pafTed immediately after the reduction of it, exprefsly declares that it had been fo, and notwithstanding a cioud of pailages in that venerable old hifto- rian, Mat:hew Paris, (who lived in the reign of king Henry the 3d, king Edward's father3)
which
which prove that it was in fuch a flate of feudal fubjeflion to the crown of England throughout all the reign of king Henry the 3d and for feveral reigns before. But, in oppofition to thefe decifive teftimonies, Lord Mansfield will have it that Wales had never been a fief of the crown of England before the reduction of it by king Edward, but was then, for the firft time, reduced by his victorious arms, to be a dependant dominion of the crown of England ; but that, for fome reafons of policy, (which, however, Lord Mansfield does not ftate, nor even hint at,) king Edward thought proper to declare it to have been in a ftate of feudal fubjeclion to the Crown before his conqueft of it. And here we obferved that Lord Mansfield reafoned inconclufively even from his own aflumed ftate of the fact. For, if Wales had not been a fief of the crown of England before king Edward's reduction of it, but had been (as Lord Mansfield fuppofes) an abfolutely independant ftate until that time, yet, if king Edward had, for any reafons of policy, thought fit to confider it (though falfely) as having been before in a ftite of
feudal
[ 353 1
feudal fubjecYion to the Crown, i'uch a plan of policy in king Edward would have ren dered Wales an unfit example of the exercife of the power of a king of England over a conquered country ; becaufe it muft be fup- pofed that king Edward would, in fuch a cale, have exercifed only fuch rights of government over it as were compatible with the political fituation in which he would have thought fit to place it, which would have been 'that of an antient fief of the Crown reduced into poflefTion. And we obferved alfo that he had rnifconceived another material facl relat ing to this country, with refpecl to the power by which laws were made for the govern ment of it after its reduction by king Edward. For he afferts that king Edward made laws for it by his own fingle authority, notwith- ftanding it is exprefsly declared by that king himfelf in the preamble of his famous Sta- tutum Wallitf) above-mentioned, that the laws he then eftablifhed for the government of it were made de confiHo prccerum regni nqftri, or by the confent of his parlia ment.
VOL. II. Z z Thefe
£ 354 ]
Thefe miftakes we obferved to have been made by Lord Mansfield in what he fald concerning thofe two great examples of Ire land and Wales ; which are alfo of too great antiquity to have much weight in determin ing a queflion concerning the constitution of the Englim government at this day.
We then obferved that all the other in- flances that were mentioned by him, except thofe of Gibraltar and Minorca, are of no importance to the queflion. Thefe inftances were the town of Berwick upon Tweed, the dutchy of Guienne, or Gafcony, the town of Calais in France, the province of New- York in North America, and the iiland of Jamaica.
Of Berwick All that he fays of Berwick upon Tweed
upon Tweed. .
is, that it was governed by a royal charter.
But that circumftance is no proof that the king was the fole legiflator of it, any more than he is of the cities of York, Briftol, Exeter, and twenty other towns in England, which are governed alfo by royal charters. And even that charter of Berwick appears to have been confirmed by act of parliament
in the reign of king James the firft.
As
[ 355 ]
.
As to the dutchy of Guienne, or Gafcony, Of thedutchy and the town of Calais in France, they were ana the totfa not acquired by the kings of England by pra^ais' in conqueft, but by marriage and inheritance, and confequently can afford no example of the power of the Crown over conquered countries.
And the province of New- York in America of the pro vince of New is an unfit example for this purpofe, becanfe, York.
though perhaps in truth it might be a mere conqueft made upon the Dutch in the year 1664, after they had been many years in quiet pofTefTion of it, yet it was not fo con- fidered by king Charles the fecond, who took }t from them, but was claimed and feized upon by his order as a part of the territory of the more antient Englifli colony of New- England, into which, it was pretended, the Dutchhad intruded themfelves without the per- rniflion of the Crown. And, upon this ground of an already-exifting right to it in the crown of England, it was granted away by K. Charles the 2d to his brother, the duke of York, before ever the fleet, which was fent to take poffef- iion of itj had failed from England -t and it w"as Z z 2 taken
[ 356 ]
taken pofTeffion of by colonel Nicholls, as a part of the king's old dominions, before the king entered into the firft Dutch war. As, therefore, it was not conlidered by the Crown as a conquered country, the government eftablifhed in it cannot be juftly cited as an example of the authority of the Crown over Of the ifland conquered couhfries. — And nearly the fame
of Jamaica.
thing may be faid of the ifland of Jamaica > fince Lord Mansfield tells us that he had found, upon inquiring into the hiftory of it, that it had been almoft intirely abandoned by the Spanish inhabitants of it foon after its conqueft by the arms of England in the year 1655 in the time of Cromwell's ufurpation, and that it was occupied only by Englifli fettlers at, or foon after, the reftoration of king Charles the 2d in 1660; infomnch that it had been confidered ever fmce that period as an Englim plantation, and not as a conquered country. For, if this be true, (as I do not doubt it is,) it renders this ifland an unfit example of the exercife of the le- giflative authority of the Crown over con quered countries. I mean only, however, that it is not a direft example for this pur-
pofe:
[ 357 1
pofe: for indireftly, I acknowledge, both Of both Ja- this iiland and the province of New-York New-York^ may be ufed as arguments in favour of this authority, by reafoning as follows. " The power of the Crown over a conquered country muft be at leaft as great as it is over a planted country, or colony. Therefore, fince the king of England exercifed leghlative authority over the ifland of Jamaica for about twenty years, without the concurrence of either the Englim parliament or an aflembly of the people j and fince the duke of York did the fame thing in the province of New- York for about eighteen years by virtue of a delegation of the powers of government to him from the Crown by king Charles's letters-patent ; and thefe two countries were not confidered as conquefts, but as plantations of Englim- men j it follows, a Jorttori, that in coun tries that are not only conquered, but con- fidered as conquered, the Crown may law fully exercife the fame authority." This would have been a tolerably plaulible argu ment, and much ftronger than any of thofe which Lord Mansfield made ufe of in that judgement. But he did not make ufe of this
argument;
f 358 ]
argument ; and indeed could not, confidently •with the opinion he delivered concerning planted countries, or colonies : for in thefe he declared that the king alone had not the power of making laws and impofing taxes, but the king and parliament conjointly, or the king and the alTembly of the freeholders of the colony conjointly, agreeably to the opinion of Sir Philip Yorke and Sir Clement Wearg in the year 1722 concerning the ifland of Jamaica. He could not, therefores make ufe of the foregoing argument a fortiori in favour of the king's fole legiflative authority over conquered countries, which is built upon the fuppofition of his Majefty's having had fuch an authority over planted countries, or colonies j becaufe he denied the exigence of the latter authority, which is its founda tion. According to Lord Mansfield's doc trine, therefore, of the king's not being the fole legiflator of planted countries, the in- ftanccs of New- York and Jamaica cannot afford the above indirect argument a jor- tfori in fupport of the king's fole legiflative authority over conquered countries. Nor can they afford a direct argument, mdepend-'
ently
C 359 ]
ently of the confideration of planted coun- 4
J 1
tries, in fupport of this authority 5 becatife thofe places, or provinces, (though really conquefts,) were confidered and treated as planted countries. And therefore they ought not to have been cited by Lord Mansfield as
proofs of the faid authority.' -As to the
opinion of iuch lawyers (if there are any fuch at this day) as would go further than
Lord Mansfield in their notions of the king's
t>
legiflative authority, and would fay, that the king is the fole legiilator not only of all con quered countries, but of all planted countries in which he has not diverted himfelf of his authority by fome charter or proclamation, I {hall fay nothing to it but that I agree with Lord Mansfield in confidering the opinion of fuch lawyers as erroneous with refpect to planted countries, and that I am inclined to go beyond Lord Mansfield in thinking itv likewife erroneous with refped to conquered countries, or, at leaft, that the arguments adduced by his lordfhip in fupport of it in that latter cafe, are not fufficient to efla- blifli it.
Of Gibraltar. As to Gibraltar and Minorca, in which the king has made from time to time fome regulations by his orders in his privy council, we have obferved that the former of thefe places is really nothing more than a garrifon- town, without an inch of ground belonging to it beyond the fortifications ; and that the
Of Minorca, latter of them, though an ifland of fome extent, has always been confidered by the people of England in nearly the fame light, or as an appendage to the fortrefs of St. Phi lip's caftle, which defends the harbour of Mahon j — that its civil government has been intirely neglected by the minifters of ftate in Great-Britain ever fmce the conqueft of it, and that no attempt has been made to en courage the profeffion of the Proteftant re ligion in it, or to introduce theEnglim laws there, even upon criminal matters -, and yet that the ftate of the laws, which are fup- pofed to take place there, is fo uncertain and undetermined, that, (though the old Spanifa laws are fuppofed to be in force, and moft frequently appealed to,) the inhabitants fome- times plead the Englifh laws. And from thefe circumftances of neglect, confufion,
and
[ 36' 1
and uncertainty, and likewife from the
fmall importance of the fubjects upon which the kings of Great-Britain have exercifed a legiflative authority over thefe places by their orders in council, (no laws for creating new felonies or capital crimes, or for impofing taxes on the inhabitants of thole countries, or for any other very important purpofe, having ever been made with refpecl: to them,)
we concluded that neither this ifland
nor the town of Gibraltar were fit examples to prove Lord Mansfield's aiTertion concern ing the fole legiflative authority of the Crown over conquered countries.
Thefe were the principal remarks we made upon Lord Mansfield's fecond ground of ar gument in fupport of the iole legiflative authority of the Crown over conquered countries, which confifted of historical ex amples, which were fuppofed to be prece dents of the exercife of fuch an authority.
I come now to Lord Mansfield's laft head Condufions
r • r r i • i concerning
of argument in fupport or tms authority -3 the opinions \vhich confided of the opinion of the judges, other Iminuil as reported by Lord Coke, in Calvin's cafe. i^yf".
which xv er;
VOL. II. A a a and cited by Lord
[ 362 ]
and of that of Sir Philip Yorke and Sir Cle* ment Wean?, (attorney and follicitor aeneral
O v J O
to king George the ill,) in the year 1722, on a queftion referred to them concerning the ifland of Jamaica.
r th£f °K' Concerning the opinion of the judges in judges 5n Cai- Calvin's cafe we obferved in the i ft place,
vin's cafe. , . • j- • i i • i- i
that it was extrajudicial, having little, or no, relation to the queftion then under confide- ration, which was, " whether a perfon born in Scotland fince the acceflion of king James the i ft to the crown of England, was to be confidered as a natural- born fubje6t in Eng land as well as in Scotland, fo as to be intitled to purchafe land, and maintain actions at law for the pofTeiTion of it, in the former kingdom ns well as in the latter." And, upon this ground of its being extrajudicial, we concluded that this opinion of the judges concerning conquered countries was not to be confidered as decifive upon the fubjecl.
In the fecond place, we obferved that this opinion of the judges, concerning the power of the Crown over conquered countries, was intermixed with another opinion, concerning
the
t 363 J
the difference between Pagan and Chriftian conquered countries, which was fo unreafon- able, illiberal, and unjufl, that Lord Manf- iield faid it had long ago been moft deferv- edly exploded. Now, if the opinion of thofc judges on the latter fubjecl: is fo very con temptible, it muft, furely, lefTen our refpedi for the wifdom and judgement of the judges who delivered it, and confequently muft take off much of the weight which their other opinion, concerning Chriftian countries con quered by the arms of England, would other- \vife derive from their authority.
In the 3d place, we obferved that it ap pears from the hiftory of thofe times, that the judges, who determined Calvin's cafe, were confidered by many perfons of that age as having acted with a fervile degree of com- plaifance to king James on that occafion ; which may be fuppofed to have influenced them in the opinions they delivered upon incidental points that were mentioned in thu courfe of their arguments, as well as in their opinion upon the main queftion then in difputc before them. And this cojifidera- A a a 2 tiou
[ 364 ]
tlon muft contribute to leflen the authority of their opinions upon thofe incidental points as well as upon the main point, and confe- quently that of their opinion, To much relied upon by Lord Mansfield, concerning the power of the Crown over conquered coun tries.
That opinion ^nd. in the Ath and lad place, we obferved
of the judges ~ r
is really con- that this opinion of Lord Coke and the
1 other judges in Calvin's cafe> concerning the
opinion. legiflative power of the Crown over conquered countries, is not the fame with Lord Manf- field's opinion upon this fubjeft, but materi al! different from it. For Lord Coke afcribes to tae Crown only the power of changing the laws of the conquered country once for #//, upon the conqueft of it, and introducing the laws of England in their ftead : but he adds that, when once the king has introduced the laws of England into the conquered country, he cannot afterwards alter them without the confent of parliament ; which is faying, that the king and parliament conjointly, and not the king alone, are poffefTed of the perma nent right of legiilation over it. So that
this
tjriis authority of Calvin's cafe, (fu eh as it is,) is rather adverfe than favourable to Lord Mansfield's doctrine upon this fubjecl:.
Thefe are the obfervations we made with refpecl to this opinion of the judges in Cal vin's cafe, upon which Lcrd Mansfield laid fo great a fire is.
The only remaining authority cited by 9f the °P1*
T i •* /r /* i 1 ••''A , ni°n °f Sir
Lord Mansfield was the opinion given by Philip Yorke
Sir Philip Yorke and Sir Clement Wean* in and SirCle-
o mem
the year 1722 upon a queftion that was re- in »722- ferred to them concerning the ifland of
Jamaica.
This opinion, we acknowledged, did really co-incide with Lord Mansfield's opinion upon the authority of the Crown over conquered countries, though the opinion of the judges in Calvin's cale did not. But we agreed that, as thofe learned gentlemen were at that time in the fervice of the Crown in the offices of attorney and follichor general to king George the ift, (which muft naturally be juppofed to have given them ibme degree of
byafs
* r 366 } •
byafs in favour of the prerogative of the Crown, and this opinion appears to have been given by them in a very hafly and negligent manner, (fince they did not take the pains to inquire, and to form a judgement, whether Jamaica ought to have been ftill confidered as a con* quered country, or had, by the conduct of the Crown in the government of it fince the reiteration in 1660, been brought into the condition of a planted country, or colony ; which was fo neceflary to their giving an ufe-r ful and fatisfaclory opinion upon the matter referred to them ;) I fay, we agreed that, for thefe reafons, this opinion of theirs was not intitled to much regard with refpect to the decifion of the important queftion which is the fubjecl of our prefent inquiry.
And thus we compleated our difcuffion of Lord Mansfield's third and laft head of argu ment, which was grounded on the opinions of judges and other learned lawyers.
e This, I prefume, is the kind of recapitula- begun in p. tion which you wifhed me to make to you, of the principal conclufions we had agreed on in the courfe of our examination of Lor4 Mansfklg's opinion upon this fubje<ft.
FRENCH-
f 367 ]
FRENCHMAN.
It is : and I am much obliged to you for making it; as it enables me to carry off thefe conclufions, which we have agreed on, mere eafily than I otherwife could do. Nor do I think of any thing further to trouble you about upon the fubiect. And yet, before A remark on
1 . . - Lord Manf-
I mtirely quit it, I mult beg leave to exprefs field's my furprize at the wry po/iti've and peremp- tvry manner in which Lord Mansfield aflerted fole,
_ e authority of
this power of making laws for conquered the Crown o- countries to belong to the Crown. " No countries^ " difpute, fays he, was ever ftarted before " upon the king's legiflative right over a tc conquer!. It never was denied in Weft- " minfter Hall; it never was queftioned in " parliament." And again, " No book, <c no faying of a judge, no opinion of any " counfel, publick, or private, has been " cited on the other fide; no inftance has " been found in any period of our hiftory, *' where a doubt has beenraifed concerning " it." Thefe are ftrangely confident exprei- fions, confidering the weaknefs of the proofs he adduces in fupport of them ; to which,
indeed,
I 368 ]
indeed, they form a remarkable contraft. This, I confefs, has furprized me in a man fo much celebrated for his learning and abi lities as Lord Mansfield. I therefore wifh to know how you account for it; and the rather, becaufe this extrearn pofidvenefs in a man of his abilities has a tendency to dazzle and overbear myjudgement, and make meyield implicitly to his opinion, notwithstanding I have fatisfied myfelf, by our difcuiTion of this fubjecl, that the reafons he has adduced in fupport of it, are very weak.
ENGLISHMAN.
Your remark is very juft. There is a ftrange degree of pofitivenefs in his affertions, that is very ill fuited to the weaknefs of his arguments in fupport of them. And what makes it the more furprizing is, that he him- felf ordered this cafe of Campbell and Hall to be argued no lefs than three times, on three different days, at the bar, before he decided it ; which would, furely, have been unneceflary, and, confequently, injurious to the parties (by forcing them to fuffer a need- lefs delay, and incur an unnecelTary degree of
expence,
f 365; 1
expence, in ,the profecution of their legal claims,) if the matter had been fo extreamly clear and free from doubt as he, in deliver ing his judgement, reprefents it. But that pofitivenefs of aflertion is agreeable to his conflant manner of fpeaking, and may, per haps, be confidered as one of the ingredients of his fpecies of eloquence, as it certainly has the efTcdl you mention, of dazzling, for a time, and overbearing his hearers «|to an acquiefeence in the truth of the proportions he fo peremptorily afferts. But you, who have examined the reafons adduced by him iri fupport of his aflertion concerning the pre- fent fubjedt, and have found them to be in- fufficient, ought to break through the in- chantment,' and to yield to the conclufions of your own undemanding, and embrace what appears to it to be the truth ; agreeably to the old Latin proverb, Amicus Plato $ Amicus Socrates ; fed magh arnica, veritas. However, to take off fomething of the irn- preffion which you fay thofe pofitive aiTertions of Lord Mansfie'd, which youjuft now repeat ed, are apt to make upon your mind, I will en deavour to flievv you that moft of them might VOL. II. B b b bs
Aflertions of an oppofite tendency to tKofe o; Lord Mansfield may be made with equal truth.
Lord Mans field's firft af- fertion, con cerning the king's legifla tive power over a con queft.
A counter af- fertion, that is equally true.
[ 37° 3
be changed into others of an oppofite ten dency, which fhould be either as nearly, or more nearly, agreeable to the truth : though yet, I confefs, they will not be deciiive of the queftion againft the legiflative authority of the Crown, any more than Lord Mans field's aflertions are decifive in favour of it ; becaufe both thofe aflertions and Lord Mans field's, (to which they are oppofed,) are ne gative propofitions, from which no certain conclusions can be drawn.
Lord Mansfield fays in the firft place; " That the king's legiflative right over a '* conqueft has never been denied in Weft- " minfter-Hall." Now, if this aflertion were true, it would prove nothing, unlefs this le giflative right had been frequently aflerted in Weftminfter-Hall, and made the ground of fome proceeding there; which it has not. We may therefore change this aflertion into the following ; " The king's legiflative right " over a conqueft has never bee?i afferted in " Weilminfter-Hall." And this latter afler tion is as near the truth as Lord Mansfield's, or rather nearer to it. For the king's legiflative
power
[ 371 ]
power over a conqueft has not been afferted in Weftminfter-Hall, as I believe, above two, or three, times j and that by fmgle judges, and in a flight, cccafional, and etftrajudicial manner: but (if we underfland by it the full, and proper, and permanent legiflativc power, and not the power of introducing, once for all, the laws of England into the conquered country,) the king's legiflativc power over a conquered country was denied by Lord Coke and almoft all the other judges in Calvin's cafe, where they faid, " that, " when once king John had introduced the tf laws of England into Ireland, no fubfe- " quent king could alter them without the " confent of parliament." You fee, there fore, that this firft aflertion of Lord Mans field, " That the king's legifiative right over " a conqueft has never been denied in Weft- " minfter-Hall," is not true 5 and that, if it were true, it would not be material to the decifion of the main queftion, unlefs the faid legifiative right had been frequently af- ferted in Weftminfter-Hall, and made the ground of fome proceeding there j which it has not. %" '
B b b 2 Lord
372
Lord Mans field's fecond affertion on the fame Tub-
fertion that is equally true
Lord Mansfield's next affertion is, " That " the king's legiflative right over a conqueft " was never queftioned in parliament." Now we may affert, I believe, with equal truth, A counter af- " That it never was acknowledged, or af- " ferted, in parliament." And the reafon of both thefe equally true, but very different, propofitions, is, that the Parliament has never had occafion to coniider the conduct of the Crown with refpecl to any conquered coun tries, fince we have any memorials of the debates in Parliament -, \ which is only from the reign of king Edward the 6th, or about the year 1550: and indeed, I believe, we may go further, and fay, that the Crown has made no new conquefts iince that period, to be the objects of this fuppofed legiflative au thority, except the province of New- York, the iQand of Jamaica, the town of Gibraltar, and the ifland of Minorca, of which we have feen that the two firft, (though in truth they were conquered from the Dutch and the Spa niards,) were always confidered as planted countries, or colonies, and the two laft have been considered by the Englifh nation as mere garrifon towns, or fortrefTes, no other wife
worthy
[ 373 ]
worthy of notice than as they defend the har bours of Gibraltar and Port Mahon, which are ufeful to the Britifh trade in the Mediter ranean. However, I will not take upon me to fay with any degree of confidence, either, " that the king's legiflative right over a con- " qu£ ft has never been denied in parliament," (as Lord Mansfield aflerts) or " that it has " never been acknowledged, or aflerted, in " Parliament 3" becaufe I do not pretend to t>€ well enough acquainted with the many folio volumes of the Journals of the two houfes of parliament, to venture upon either of thefe aflertions, or rather negations : but I am inclined to think they are both true : and in that cafe one of them may fairly be fet againft the other.
Lord Mansfield's next, or third, afTertion Lord Mans- 5s, " That no book, no faying of a judge,
<c no opinion of any counfel, publick or pri- 5he famefub- " vate, has been cited on the other fide."
Now, in anfwer to this aflertion, it may be A counter af-
truly alTerted that, " No book, no faying of that is more
any judge, no opinion of any private coun- V*"«"* to fel, (that is, of any counfel that was un-
" influenced
[ 374 1
" influenced by the pofleflion of a precarious " office held at the pleafure of the Crown,) " and but one opinion of any publick coun- ct fel, (or counfel in pofTefiion of fuch offi- " ces,) namely, that of Sir Philip Yorke and " Sir Clement Wearg, in the year 1722, •' (and that opinion feems, upon other " grounds, to have been a very hafty one ;) " has been cited by his Lordfhip in fupport " of this legiflative authority of the Crown " over conquered countries." I fay this af- fertion may be truly made in oppofition to Lord Mansfield's : for the faying of the judges in Calvin's cafe (which is the only opinion of any judges, which Lord Mansfield has cited in fupport of this authority) appears, upon examination, to be adverfe to his Lordfhip's doctrine. And thus we mall have aiTertion againft affertion concerning the want of opi nions of judges and other learned men upon this fubject, fuppofing the ailertion of Lord Mansfield to be true. But thefe affertions prove nothing on either fide. The want of the opinions of judges and other learned men concerning a queflion never agitated, affords us no grounds for the decifion of it : and
there-
[ 375 ]
therefore we muft have recoude to other me thods of inveftigation in order to fatisfy our- felves concerning it.
But Lord Mansfield's affertion, that " No " book, no faying of a judge, no opinion of *c any counfel, publick or private, has been <c cited on the other fide," is not ftridtly true. For the opinion of Vattel> a learned modern writer on the law of nations, was cited on that fide : and, as this queftion feems rather to belong to the law of nations than to the municipal law of England, fuch an authority ought not to be difregarded. Vattd's work is writ in French : but I have an Englifh tranflation of it, in which the pafTage relating to this fubjedt is exprefTed in thefe words. " It is afked, to whom the conqueft belongs; " to the prince, who made it, or to the ftate ? " This queftion ought never to have been " heard of. Can the fovereign act, as fuch, " for any other end than the good of the " ftate ? — Whofe are the forces employed in " the war ? — Even, if he had made the con- cc queft at his own expence, out of his own " revenue, or his proper and patrimonial
" eftates,
The opinion of Vattel was cited at the trial in oppo- fition to Lord Mansfield's do&rine of the king's be ing the fole legislator of conquered countries.
[ 376 ]
" eftates, does he not make ufe of his fub- " je6ts arms ? Is it not their blood that is' " med ? — And, even fuppoiing that he had " employed foreign, or mercenary, troops, " does he not expofe his nation to the ene- " my's refentment ? Does he not draw it into <e the war, while the advantage is to be his (t only ? — Is it not for the caufe of the (late, " and of the nation, that he takes arms ? " Therefore all the rights proceeding from <c it appertain to the nation. If, indeed, the f< fbvereign makes war for a caufe perfonal tc to himfelf, as, for inftance, to afcertain a " right of fucceilion to a foreign fovereignty, " the qneftion is altered : fuch an affair would " be ioreign to the (late ; but then the na- <c tion fhould be at liberty either to affift its €< prince or not concern itfelf. And, if he " is impowered to make ufe of the national <e force in fupport of his perfonal rights, fuch " rights are no longer to be diftinguillied " from thofe of the ftate." The meaning of this paffage, as applied to Great-Britain, feems to be, that every country conquered by the Britifh arms is an acquifition to the Britifli nation, and not to the king alone; —
that
[ 377 ]
that its publick revenue becomes part of the publick revenue of Great-Britain, as much as the taxes raifed in Great-Britain itfelf, and is to be difpofed of in the fame manner, and for the fame publick ufes, as thofe taxes, in- ftead of belonging to the king's privy purfe ; — and that the power of impofing new taxes on the inhabitants of fuch country, and like- wife that of making new laws for their go vernment, muft belong to the fame body of men as is lawfully pofleffed of thofe powers in the kingdom of Great Britain itfelf; that is, to the King, Lords, and Commons of the kingdom, conjointly ; they being the body who legally reprefent the whole people of Great-Britain, and are inverted with the whole authority originally inherent in, and derived from, the faid people, or, according to Vattel's expreffion, the laid flare or nation.
This pafTage from Vattel's book on the law of nations was cited in one of the argument* of this caufe of Campbell and Hall before Lord, Mansfield : and therefore he ought not to have faid that ;«? book was cited en that fide of the queftion. If he meant that no book
VOL.- II. G c c of
[ 378 ]
of Englifh law was cited on thatfide, hefhould have confined his expreflion to that fort of book.
Nor is Lord Mansfield's aflertion above- mentioned, " That no book, no faying of a " judge, no opinion of any counfel, publick " or private, has been cited on the other fide," ftriclly true with refpecl to the fecond article of it, the fayings of judges , any more than with refpedt to the firft article, of authorities from books. For we have feen that, upon examination, the opinion of the judges in Calvin's cafe appears to be an authority on that fide of the queflion : fince the judges there affirm, that, when once king John had introduced the laws of England into Ireland, no fubfequent king could alter them without the confent of parliament j which is faying, that the legiflative authority over conquered countries does not belong to the king alone, but to the king and parliament conjointly.
A& to the opinions of lawyers on this fub- Jed> k may> Perhaps,' be true (as Lord Mans- neral that field aflerts,) that none were cited in the ar-
feem unfa- . ;
vourabie to guments in that cauie on that fide of tne
Lord Mans-
field's doc- quemon.
trioe of the fole legiflative authority of the Crown over conquered coun
tries.
andMr.Lech- mere.
[ 379 ]
queftion. Yet I have met with two opinions of very refpedable lawyers that incline much to that fide of the queftion, though they may not intirely adopt it. Thefe are the opinions Thefe are the
r n- TTT'ii- T i opinions of Sir
or Sir William Jones, who was attorney-ge- William Jones neral to king Charles the fecond, and Mr. Lechmere, who held the fame office under king George the ift : and they were given while thofe gentlemen refpedively held that office under the Crown ; which gives thofe opinions an additional weight -, becaufe, the byafs on their minds ariiing from their po£- ieffion of that office, having probably been in favour of the Crown, an opinion againft the prerogative of the Crown mufl have been the effect of ftrong conviction. Sir William Jones was attorney-general to king Charles the fecond, in the year 1679, in the time of the ferment about the Popifh Plot, while that king (though fond of arbitrary power,) was obliged, by the fpirit of the times, to employ fome honeft and popular men in his fervice, and to pafs fome popular laws for the prefervation of publick liberty. He exe cuted this office with great applaufe, and was reckoned to be the mod learned lawyer of C c c 2 that:
Of Sir Wil liam j ines.
[ 38° 3
that time ; Sir Matthew Hale, the great chief
juftice of the King's Bench, being then dead :
and he was alfo efteemed a very honeft man,
and a lover of his country. Now it is faid
in the life of Sir William Phips, page 23,
(as it is quoted in Mr. Smith's hiftory of
New- York, from which I take it,) that this
Sir William Jones told king Charles the ad,
The opinion <c That he could no more grant a commiffion to
ofSirWilliam ec , , • r ,• rt • ., ,/ •
joneSt ( levy money on his Jubjetts in the plantation^
tc without their conjent by an ajjembly> than *e they could dif charge themfehes from their al- " legiance"
According to this account of this learned lawyer's opinion, it is not certain whether he had, or had not, in his mind, when he gave it, the diftincYion between planted countries^ or colonies, and conquered countries, and whe ther he meant to deny the right of the Crown to levy money by its own fingle authority in both thefe forts of dependant countries, or only in the former. But, according to other accounts of this fame opinion, it appears to have related to conquered countries as well as planted ones. For in a letter written by the
houfe
[ 3*' 1
houfe of reprefentatives of the province of the MafTachufets Bay, in the month of Ja nuary, 1768, to the Earl of Shelburne, (who was at that time one of his Majefty's princi pal fecretaiies of flate,) it is recited in thefe words j " Sir William Jones, an eminent ju- Another ac- *c rift, declared it as his opinion, to king £ount °.f.the
° fame opinion.
" Charles the fecond, That he could no more " grant a commijjion to levy money on his fab- *c jetfs in Jamaica, without their confent by an <c affembly^ than they could di [charge the mfe foes <c jrom their allegiance to the Crown"
In this account we fee that this opinion re lated to Jamaica 3 which was a conquered country. The only remaining doubt there fore is, whether Sir William Jones, when he gave this opinion, confidered Jamaica as con tinuing ftill in its original ftate of a con quered country, or whether he fuppofed its political condition to have been altered by the events that had happened to it lince its con- queft, (fuch as the withdrawing of the Spa- nifh inhabitants from it, and the acceffion of JLnglimmen to it, who were invited by the king's proclamation to come and fettle in it,)
fo
f
fo as to have been thereby converted into the political condition of a colony, or country rhat had been originally planted by Englim- men under the king's authority ; which is the light in which Lord Mansfield feems to think that ifland ought to have been confidered in the year 1722, when Sir Philip Yorke and Sir Clement Wearg gave their opinion concern ing it. But there may be a great deal of dif ference between the condition of Jamaica, iij the year 1722, and its condition in king Charles the 2d's time, about the year 1 677, or 1678, when this opinion probably was g'rven : and the reafons for confidering it as having changed its political ftate from that of a conquered to that of a planted country, or colony, were much ftronger in the year 1722 than at the other period. For during the greater part of Charles the fecond's reign, and therefore, probably, when this opinion was given, the inhabitants of Jamaica were governed only by a governour and coun cil, without an afTembly of the people : and confequently king Charles, when this opinion was given, had not yet, (by granting them the privilege of being reprefented by an ak
fe.nbly
t 383 ]
fembly with a power to make laws and im- pofe taxes for the publick ufes of the ifland, ) diverted himfelf of his antecedent right to impofe taxes on them, if fuch a right had really belonged to him. It feems therefore not unlikely that Sir William Jones, when he gave this opinion, might confider the ifland of Jamaica as continuing frill in its original ftate of a conquered country, notwithftand- ing moll: of the Spanifh inhabitants had left it : and, if he did confider it in that light, it is evident that this opinion of his would, in fuch cafe, be an opinion exactly in point to contradict Lord Mansfield's doctrine of the king's fole legiflative authority over conquered countries.
And, agreeably to this conjecture, I find, in another account of this opinion, that Sir William Jones did confider Jamaica as a con quered country, and exprefsly called it fo, and yet denied the king's authority to impofe taxes on its inhabitants without the confent of an aflembly. For in another letter of the fame afTembly of the reprefentatives of the province of Maflachufets Bay, written in the
fame
fame month of January, 1768, as the former letter to Lord Shelburne, and addrefled to Dennis De Berdt, Efqj their agent in Eng land, they fpeak of this opinion of Sir Wii- A third ac- uam T0nes in thefe words; " There was,
count of the
fame opinion. " even in thofe times [the times before the " Revolution] an excellent attorney-general, tc Sir William Jones, who was of another " mind, and told king Charles the fecond, " that he could no. more grant a corffmiffion to " levy money on his fubjeEts in "Jamaica , " though a conquered ijland^ 'without their con- " fent by an ajjembly> than they could dlfcloarge <f themfehes from their allegiance to theRnglifo " Crown" If this laft account of Sir William Jones's opinion is the true one, it is evident that he confidered Jamaica as continuing ftiil in the condition of a conquered country, and eonfequently that his opinion with refpedt to- the king's power over conquered countries is diredly contrary to Lord Mansfield's*
f Mr" ^^e omer opinion which I mentioned as Lcchmere. material to our prefent enquiry was that of Mr. Lechmere, a lawyer of confiderable eminence, and efleemed a man of great in
tegrity,
tegrity, who was attorney-general to king George the i ft. This opinion I had occafion to mention to you in our laft converfation, juft before I begun the account of the impo- iition of the duty of four and a half per cent, upon goods exported from Grenada by the king's letters patent of July, 1764. It is fhortly thus. When the Bikifh minifters of ftate, in the year 1717, had a defign of ad- vifing the king to impofe, by his royal pre rogative, the faid duty of four and a half per cent, on goods exported from the iiland of Jamaica and the little iflands of Anegada and Tortola, which are fituated at a fmall diftance from St. Chriftopher's, they confuited Mr. Lechmere, the attorney-general, upon the legality of the intended meafure. And he, thereupon, honeftly told them, c< that the " per f on 'who JJwuld advife his majefty to take " fucb a flepy ivotdd be guilty of high treafon." But I do not know whether he eonfidered Jamaica as ftill continuing in the ftate of a conquered ifland, or not. If he did, this opinion of his would be an opinion exactly in point to our prefent fubject, and direclly contrary (as well as the opinion of Sir Wil- VoL.II. Ddd, liam
[ 386 ]
liam Jones, according to the laft account of it,) to the doctrine of Lord Mansfield con cerning the foie legiflative authority of the Crown over conquered countries.
Thefe two refpectable opinions, againil the faid fuppofed legiflative authority of the Crown, may fairly be fet in oppofition to the opinion of Sir Philip Yorke and Sir Clement Wearg, fo much . relied on by Lord Mans field, in fupport of it.
End of the YOU now, 1 hope, are fatisfied that Lord
examination
of Ld. Mans- Mansfield's peremptory aflertions, " that no emptory af- " doubts had ever been entertained by any lemons. cc jaWyerSj before the faid cafe of Campbell
{t and Hall, concerning the king's fole le- " giflative authority over conquered coun- " tries," are not quite agreeable to the trutlv but that fome lawyers of character in former times have prefumed to entertain a different opinion, and even to tell the king's ministers that they did fo. And confequently you mould make off from your mind that over- great awe and deference to that learned Lord's opinion which the peremptory manner of
his
[ 3*7 J
his making thofe afTertions had imprefled upon it, and ihould boldly venture to entertain that opinion upon the fubjecl which, upon the full inquiry you have made into it, appears to
you to be the mod reafonable.
• : . . ,j :..i -•:::',: V> r - ' "r:;Tib s,
FRENCHMAN.
I will endeavour to do fo, as far as I able. But, I proteft, I find it difficult ; as his authoritative manner of making thefe af- fertions does ftill retain fome influence over my mind, notwithstanding you have now con vinced me that they are neither altogether true, nor deciiive of the matter in queftion, if they were true. However, upon the whole, I do venture to conclude that the reafons he has given, in fupport of his opinion, <c that <c the king alone has a legiilative authority " over conquered countries," are far from being fufficient to maintain it. I fhould there fore continue to hold the opinion which at firft appeared to me moft reafonable, to wit, " that the king and parliament conjointly, ce and not the king alone, had a right to <c make laws for the inhabitants of conquer-. " ed countries, and to impofe taxes on them, Ddd 2
An enquiry
how far Lord
Mansfield's
declarationof
hisopinion,in favour of the
tive power of
the Crown o-
ver conquer, ed countries,
in the judge-
ment he deli, cafe of Camp-
the law upon thatfubjeft.
[ 388 ]
if it were not for one remaining difficulty, concerning which I muft defire the affiftance of your opinion. This difficulty is grounded on the authority which Lord Mansfield's doc~
• i i • r i
tnne ma7> perhaps, derive from the very circumftance of its being his opinion, and having been delivered by him, as fuch, in his
. j. . . . n. , . ,
judicial capacity on a queition that brought tfa fubjecT: regularly before him for his deci-
J J
fion j more efpeciallv, if we confider the filence of the other judges of the court of
KinS'S Bench> when Lord Mansfield deli~
vcred this opinion, as implying their concur-
. . ,r. . . _ r : °. . . rence with him in it. ror in this cale it may
be faid, that, on the only occaiion on which this doctrine " of the king's fole legiilative <f power over conquered countries" has been brought into queflion before an Englim court of juftice, it has been decided in favour of the Crown by the unanimous opinion of all the judges of the court j and that, whatever the law might be before, fuch a decifion muft be confidered as fettling it for the future in favour of the faid power of the Crown, or muft be a peremptory guide to all future courts of juftice in their decifion of the fame
queftion,
[ 389 }
queftion, as often as it (hall occur before them. I fhould be glad to know, therefore, what you think of this conclufion, and whe ther, by the rules obferved by Englifh courts of juftice with refpect to points already de cided by the fame or other courts, fuch a queftion ought to be confidered as having been decided for ever in favour of the Crown by this one decifion of Lord Mansfield and the court of King's Bench. If it is to be fo con- fidered, I muft needs think that Lord Mans field and his brother judges will, by that opi nion of theirs in their judgement on the cafe of Campbell and Hall, have, indirectly, made a law of the mod capital importance to Great- Britain and the Britifh dominions.
Your queftion is a very proper one, and The courts of
not a very eafy one to anfwer j there being ^^ jj^"
no exprefs law, nor even conftant ufage, that mine P°.ints
b ' of law m a
afcertains, in all cafes, the degree of deference mannerthatis
which is to be paid by courts of juftice to the thS'/ownfor-
former judicial decifions of the fame or other m" ' declfions
-\ of them.
courts of juftice. And we have feen Lord Mansfield himfelf, fince he has been chief
juftice
juftice of the King's Bench, and his brother judges of that court, in more than one in- ftance, determine a point of law in a manner directly contrary to the determination of it by all the judges of the fame court of King's Bench on a former occafion, though the faid former determination had been acquiefced in by the party againft whom it had been made, and had been taken and reputed for good law ever after, till the new cafe in which Lord Mans field and the other judges of the court of King's Bench determined the point in a dif- Aremarkable ' ferent manner. I particularly remember an intone of this kind in a cafe in which the names of the parties were Wyndham and Cbttitynd, containing the qualifications necef- fary to the three witnefles who, by a certain ftatute made to prevent frauds, are required to atteft and fubfcribe a will of lands, in or der to its validity. But the general rules con cerning the authority of judicial determina tions of points of law I take to be as follows.
General rules JR faQ fa ft p]ace where a point of law concerning
the authority has been agitated in all the courts through
Terminations which it may be carried by appeal, or writ
ot points of Q£ law.
[ 39* ]
of error, and has been finally determined by a judgement of the higheft court of appeal, that is, of the houfe of Lords* (for that is, in Great-Britain, the higheft court of appeal both in matters of law and equity;) fuch a determination is reckoned to be of almoft as much authority with refpedt to the point fo fettled, as an act of parliament ; or, at leaft, it is fo confidered by all the ordinary courts of juftice, though, perhaps, the houfe of Lords itfelf might, on another occafion, if they thought there was very ftrong ground for it, determine it in a different manner.
f i •" *"•
•- >;;. r.;:';*-b rbi,; risai In the fecond place, when a point of law has been fully argued, and folemnly deter mined by one of the four great courts of Weftminfter-Hall, that is, the court of Chan cery, the court of King's Bench, the court of Common Pleas, and the court of Exchequer ; and the party, again ft whom the judgement has been given, has acquiefced in it, and has forborn to bring an appeal, or a writ of error, into the next higher court of joiftice,- to which the right of revidng the judgements of the fir ft court, and correcting the errors in them,
belongs ;
t 392 ]
belongs ; and fuch forbearance does not arlfe from the poverty or inability of the faid party to bear the expence of profecuting fuch writ of error, or appeal to the next higher court ; fuch a determination acquires a great degree of refpecl and authority in Weftminfter-Hall, and is ufually adopted and followed by the courts of juftice in their fubfequent determi nations of the fame point of law, as often as it comes before them. Yet it is not of quite fo great authority as a determination of the houfe of Lords upon a queftion brought there in the laft refort : and we have fometimes feen fuch determinations overturned by fub fequent determinations of the fame or other courts of juftice in Weftminfter-Hall -, as was done in the court of King's Bench in the cafe of Wyndham and Chetwyndy which I juft now mentioned to you. Yet fuch overturnings of the former folemn determinations of courts of juftice are very un frequent, and are not in general approved of, though, perhaps, in fome very ftrong cafes, where the former determinations have been made upon very wrong principles, they may be juftifiable.
In
f 393 ]
In the third place, when a matter has been fully argued before one of the courts of Weftminfter-Hall, and a folemn judgement has been given upon it in favour of one of the parties; and in the find judgement more than one point of law hcis been determined in favour of fuch party j and the- loiing party acquiefces in the faid judgement, and for bears to bring a writ of error for a reverfal of it in a higher court of juftice; the deter minations of fuch points of law acquire a confiderable degree of weight and authority in the eftimation of lawyers and fubfequent courts of juftice, but yet are not quite fo much refpecled as the determinations in the two former cafes : and for this plain reafon, that, as more than one point of law are de termined at the fame time in favour of one of the contending parties and againft the other, it is uncertain, whether the lofing party, when he acquiefces under the whob judgement, and forbears to bring a writ of error in a fuperior court to get it reverfed, acquiefces in all the points of law determined againft him, or only in fome, or one, of them -, becaufe, if only one of them is right-
VOL. II. E e e ly
[ 394 ]
ly determined againft him, the judgement againft him would be affirmed upon a writ of error, as much as if all the points had been fo determined. This uncertainty concerning the particular points of law, in the determi nation of which the lofing party may be fup- pofed to acquiefce, takes from the determina tions of each of the points of law, that are determined againft him, fome part of the weight and authority which fuch determina tions would otherwife derive from his acqui- efcence.
And fourthly, if a matter has been fully argued before a court of juftice in Weftmin- fter-Hall, and a folemn judgement has been given upon it in favour of one of the parties ; and in the faid judgement one, or more than one, point of law has been determined in his favour, and another point, or points of law have been determined againft him -, and the lofing party acqoiefces in the faid judge ment, and brings no writ of error to reverfe it j fuch an acquiefcence of the lofing party can operate as a confirmation of only thofe points of law which are determined againft
him,
[ 395 1
him, and not of thcfe which are determined for him. In fuch a cafe, therefore, there will be feveral determinations of points of law, all deliberately made by the fame judges and in the fame caufe, which will have dif ferent degrees of weight and authority, name ly, the points determined in favour of the lofing party, and the points determined againft him. For the points determined in favour of the lonng party will have that degree of weight and authority which arifes from the refpec"t due to the learning, abilities, and integrity of the judges who have decided them, and to the deliberate manner in which they have been confidered and difcuffed before they were decided j but thofe which are determined againft the lofing party will, beiides the weight and authority ariiing from the foregoing cir- cumftances, be intitled to an additional de gree of refpect arifmg from the acquiefcence of the lofing party, which will (hew that he and his counlel, learned in the law, defpair of having thole points determined in a diffe rent manner, if they were to bring a writ of error for the purpofe.
E e e 2 Thefc
The opinion of Ld. Manf-
j concern ing the fole legislative au thority of the Crown over cemquered countries, de livered in the cafeof Camp- be]] and Hall, is a judicial determination of the fourth, or loweft, clafs of thofe above de- icribed.
[ 396 ]
Thefe feem to me to be the different de grees of authority which are attributed by the Englifh courts of juftice to the aforefaid dif ferent forts of judicial determinations of points of law by former judges : which, I prefume, you will agree with me in thinking reafon^ able.
FRENCHMAN.
I enter very readily into thefe diflinclions between the different forts of judicial deter minations, and think them very natural and reasonable. And, according to this gradation of them, it feems to me that the opinion of Lord Mansfield, delivered in the cafe of Campbell and Hall, concerning the fole le- giflative authority of the Crown over con quered countries, (even fuppofing the other judges of the King's Bench to have concurred with him in it,) muft be placed in the fourth, or lowed:, clafs of them. For in that cafe there is no room to infer any thing, from the acquiefcence of either of the parties, in fa vour of that opinion. For, as to the de-*- fendant Hall, who was the lofmg party, all that can be inferred from his acquiefcence in
the;
[ 397 ]
the judgement given againft him in that ac tion is that he and his counfel acquiefced in the opinion of the court upon the fecond • point, c< of the immediate operation of the " king's proclamation of October 1763, as a <l bar to the exercife cf his antecedent legif- " lative authority," and defpaired of having it otherwife determined, if he mould have brought it into the hcufe of lords by writ of error. And as to the plaintiff Campbell, who gained his caufe, he could not bring a \vritof error to reverfe a judgement that was given in his favour. So that the opinion of Lord Mansfield upon that firft point mufl, indeed, be considered as the opinion of that learned Lord, and, perhaps, cf the whole court of King's Bench, upon a point that had been fully argued before them, and muft be intitled to all the refpecl which is due to it on that account, but cannot derive any ad ditional" weight from the acquiefcence of ei ther of the parties under it 5 that is, it muft be a judicial decifion of the loweft of the four clafles of judicial decifions which you have been jufl now dt'fcribing.
ENG-
[ 39* ]
ENGLISHMAN.
It is exactly fo. The opinion of Lord Mansfield upon that firft point is a decifion of that fourth and loweft clafs. And there fore 1 fuppofe that it would not be confidered by the fame or any other court of juftice in Weftminfter-Hall, on any other occafion in which the fame point, <{of the king's legifla- tive authority over conquer'd countries," fhould occur, as being abfolutely binding and deci- five of the queftion, fo as to be intitled to the confirmation of fuch court of jufHce, though the reafons on which it was founded fhould be intirely ditapproved by the judges of which fuch court mould be compoled ; fince we have feen, in the cafe of Wyndbam and Cbetwynd> (which was determined by Ld. Mansfield himfelf) that even a decifion of the fecond clafs is not always fo confidered. But yet it would certainly have confiderable weight with the judges of fuch fubfequent court of juftice, fo as to induce them to give judgement agreeably to it, if they were only in a ftate of doubt concerning the validity of the reafons on which it had been grounded,
and
t 399 3
and did not thoroughly difapprove them. So that I am afraid we mud allow, that (weak and ill-grounded as it appears to you and me,) this opinion of Lord Mansfield, concerning the king's fole legiflative power over conquer ed countries, is a temporary judicial determi nation of that queftion in favour of the pre rogative of the Crown. But, as you rightly obferved, it is a decilion of the fourth, or loweft, clafs of the feveral forts of judicial determinations above defcribed. — But 1 hope your curiofity is now fatisfied with refpecl to this important queftion of law, concerning the fuppofed fole legiflative authority of the Crown over conquered countries, which, I think, we have very fufficiently difcufled.
FRENCHMAN.
My curiofity is, indeed, fatisfied on this fubjecl: : but the pleafure I have had in the inquiry is allayed with lome mixture of un- eafmefs ariiing from the weight that may be thought to belong to that opinion of Lord Mansfield. For how can any lover of li berty and the English conftitution (as I moil
fincerely
r 400
fincerely pfofcfs myfelf to be) not be forty to find, that the only judicial decifion that has been made upon the fubjedj has aicribed to the Crown alone, without the concurrence of the parliament, a power to make laws and impofe taxes at pleafure on the inhabitants of all countries that are conquered by the Britifh
arms? 1 therefore hope, either, that the
law upon this fubjec~t will foon be altered by an exprefs ad of parliament for the purpofe, or that the queition may again be brought under the confideration of fome court of juftice, and be there determined in a different manner, as the cafe juft HOW mentioned, of V/yndhum and Cbetiuynd* was determined, by Lord Mansfield himfelf and the other judges of the King's Bench, in a manner directly contrary to a former determination of the fame point of law in the fame court of King's Bench, though the faid former determination had been a decifion of the fecond clafs. For it may be of terrible confequence to the free dom of the Engliih conftitution to have fo enormous a power fixed permanently in the pofTeffion of the Crown.
ENG-
[ 40* ] ENGLISHMAN.
I heartily join with you in thefe widies : but doubt a little whether they are likely to . be foon accompliihed. However, if this queftion were again to come before a court of juftice, and the merits of the caufe were to turn fingly upon the decifion of it, (which was not the cafe in the action of Campbell againft Hall,) I can hardly perfuade myfelf that the judges of any court in Weftminfter- Hall would think themfelves bound to deter mine it agreeably to Lord Mansfield's opinion, merely through deference to that opinion and without any new reafons that mould influence their own judgements in favour of it ; feeing that the reafons alledged by Lord Mansfield in fupport of it have appeared, upon exami nation, to be fo very weak, and that its authority as a judicial decifion is two degrees lower than that of the cafe in the court of King's Bench, above alluded to, (which is called the cafe of Anfty and Dowjing,) which was overturned by the fame court in the fubfequent cafe of Wyndbam and Cbttwynd, that cafe having been a decifion of the fe- End of the
. . . . r , ' , . examination
cond clafs, and this being only or the fourth. Of the opinion VOT TT Fff Riir dclivered hx
>L' *f' PUC Ld. Mansfield
in the judgement in the cafe of Campbell and Hall, ccncernin2 the fole legif- lativc power of the crown over contiuered countries.
Twomeafures jnore,(befides thofedifcufled inthefirftDia- logue,) feem nccefTary to be adopted, in order to a thorough re conciliation between Great-Britain and her colo nies.
[ 402 ]
But this is all matter of conjecture, and confequently not worthy our further conlide- ration.
We will now, therefore, if you pleafe, take our leave of this iiibjedt, and, with it, put an end to the prefent converfation : for I have not either time, or inclination, juft at prefent, to enter upon a new fubjecl. But in a day, or two, if you defire it, we will meet again ; and then we will confider the remaining topicks which 1 mentioned to you in our former converfation, and which we had refolved to difcufs on the prefent occa- fion, if we had had convenient time for it. Thefe, you may remember, were another meafure, or two, which appeared to me to be highly proper to be adopted by Great- Britain in the prefent crifis of affairs, in order to a permanent accommodation of the un happy differences in which me is now in volved with fo many of her colonies on this continent.
FRENCHMAN.
I well remember them, and (hall be glad to hear you fpeak of them when we arc
more
[ 4°3 1
more at leifure. The firft of them was, to The firft of remove from the minds of the Americans ^^ mea" the apprehenfions of having bifhops eftablifhed amongft them without the confent of their affemblies. And the other was, to amend The fecond. the conflitutions of the provincial councils in the feveral royal governments of America (which are governed only by the king's com- miffions, without a charter) by increafing, to, at leaft, twice their prefent number, the members of fuch councils, and appointing them to hold their feats in the faid councils during their lives or good behaviour, inftead of holding them at the mere pleafure of the crown. Thefe were the two remajning mea- fures which you conlidered as expedient to be adopted, in order to a thorough recon ciliation between Great-Britain and her co lonies. Now that thefe meafures would be agreeable to the Americans, and confequently would have a tendency to that good end of reconciliation, is indeed too evident to need a proof. But yet I am perfuaded that, be- fides this general tendency of them, you have fome particular reafons, arifing from your knowledge of the fentiments of the Ameri- F f f 2 cans
cans upon thefe fubjeds, that make you con- fider them as of fo much importance. And thefe, if you have fuch, I mall be glad to hear at large at our next meeting.
ENGLISHMAN.
Thefe were, as you fay, the topicks that remained to be dilcuffed by us : and I mod certainly have fuch particular reafons as you fuppofe for wiming that thefe. two meafures were adopted. And, when we meet again, The grounds j jjj expia}n thefe reafons to you in the
and reafons *
of thefe two fulleft and bed manner I am able j and,
meafures will .r r n . .,
, be explained perhaps, may allo luggelt another meafure, . £. *o tj^rd or two, (beddes thofe you have juft now men tioned,) that would alfo be ufeful towards this important end of reftoring peace and con fidence between Great -Britain and her American colonies. In the mean time,, farewell.
End of the SECOND DIALOGUE.
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